Chief Arvol Looking Horse, the 19th Generation Keeper of the Sacred White Buffalo Calf Pipe and a spiritual leader of the Sioux Nation, speaks at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com (CC BY-NC-SA 4.0) [More on Flickr]

Law | National | Politics

Supreme Court pick heads toward confirmation with tribal support

Thursday, April 6, 2017

Tribal leaders and advocates are embracing Neil Gorsuch for the U.S. Supreme Court even as Republicans and Democrats remain bitterly divided on the heavily-contested nominee.

Leaders of the Confederated Salish and Kootenai Tribes, the Crow Tribe, the Fort Belknap Indian Community, the Fort Peck Tribe and the Quapaw Tribe have been joined by the heads of the National Congress of American Indians and the Native American Rights Fund in supporting Gorsuch. They believe President Donald Trump's pick will bring an unprecedented understanding of tribal issues to the nation's highest court.

"Judge Gorsuch’s record includes a great number of decisions involving tribal governments, tribal people and tribal interests, and he has consistently demonstrated not only a sound understanding of federal Indian law principles, but a respect for our unique and closely held cultural values," Crow Chairman A.J. Not Afraid, Jr. said in an endorsement letter, referring to the nominee's 10-year run on the 10th Circuit Court of Appeals.

But the nods from Indian Country weren't enough to affect a widely-anticipated showdown in the Senate on Thursday. Democrats -- including those from key Western states like Montana, where the Crows and other supporting tribes are based -- refused to advance Gorsuch through procedures normally used for Supreme Court nominees.

"Judge Gorsuch is a smart man but that doesn’t make him right for a lifetime appointment to the U.S. Supreme Court," Sen. Jon Tester (D-Montana), a former chairman and vice chairman of the Senate Committee on Indian Affairs, said in a statement in anticipation of the vote. "I cannot support a nominee who refuses to answer important questions."

A slide presentation at the winter session of the National Congress of American Indians in Washington, D.C., displays Judge Neil Gorsuch's Indian law record on the 10th Circuit Court of Appeals and includes a note of comparison to Judge Merrick Garland, a judge on the D.C. Circuit Court of Appeals who had been nominated to the U.S. Supreme Court by former president Barack Obama. Although both courts hear significant Indian law cases, the 10th Circuit tends to hear a larger number of Indian law cases overall due to the number of states it covers. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Even though Republicans lost the first round on Gorsuch, they will still be able to confirm him as early as Friday. They invoked a change in Senate rules that will allow the nominee to be approved by a simple majority vote instead of the 60 required in the past.

"He will be our 9th #SCOTUS Justice by tomorrow night," Sen. Mitch McConnell (R-Kentucky), the Republican majority leader in the chamber, asserted on Twitter after the rule change went through.

The Supreme Court has been operating with eight members following the death of Justice Antonin Scalia in February 2016. His passing occurred at a crucial time -- a record number of Indian Country cases were on the docket at the time, affecting key issues like tribal jurisdiction and protections for Native women.

Tribal interests ended up prevailing in three of four closely-watched cases and even the fourth wasn't a total loss. But that streak was an anomaly -- from 2006 through 2016, Indian Country won only two out of 11 cases before the court.

Although it's impossible to tell how Gorsuch will handle future cases, tribal leaders and advocates believe his performance on the 10th Circuit speaks volumes. Since 2006, he has gone in a far more favorable direction than the Supreme Court and has sided with tribal interests in 57 percent of cases deemed significant, according to a review by the Native American Rights Fund.

“While no good judge can tell you how he would rule on a matter before he has had a case presentation to him, we believe that Judge Gorsuch is well qualified and has an understanding of Federal Indian law that will serve tribes and the United States well if he is confirmed as the next Supreme Court Justice,” Chairman Floyd Azure of the Fort Peck Tribes wrote in an endorsement letter.

Some tribal advocates even have drawn comparisons to Merrick Garland, whom former president Barack Obama chose to replace Scalia. According to their thinking, Gorsuch is far better pick because he has written decisions in more Indian law cases than any other Supreme Court nominee.

And during his confirmation hearing last month, Gorsuch seemed eager to portray himself as friendly to Indian Country in response to concerns about his ability to treat parties that appear before him fairly.

"Tribes are, as you know, sovereign nations," Gorsuch said at one point. "Our history with Native Americans is not the prettiest history," he added.

But Democrats pointed out that Garland was never given the courtesy of a confirmation hearing. Most Republicans wouldn't even meet with him, insisting on waiting until the outcome of the presidential election. He has since returned to his seat on the D.C. Circuit Court of Appeals.

Unlike the last term, the Supreme Court only has one Indian law matter on its current docket: Lewis v. Clarke, a sovereignty immunity case. Arguments were heard in January before the remaining eight justices.

A decision is pending and while Gorsuch will not be able to participate in the outcome, he has experience in the issue. According to NARF's review, he sided with tribes in 5 out of 6 immunity cases, an extremely favorable rate.

Native American Rights Fund Documents:
Nomination of Neil Gorsuch to the Supreme Court of the United States – An Indian Law Perspective | Neil Gorsuch: Summary of Indian Law Cases