Why Gorsuch Keeps Joining the Liberals to Affirm Tribal Rights

Neil Gorsuch.
Justice Neil Gorsuch at the U.S Capitol on Dec. 3. Jabin Botsford - Pool/Getty Images

On Monday, for the second time this year, Justice Neil Gorsuch joined the Supreme Court’s liberals in a 5–4 decision bolstering the rights of American Indians under 19th-century treaties. The court’s decision in Herrera v. Wyoming is not earth-shattering, but it is noteworthy, rejecting an old theory of state sovereignty in favor of American Indian treaty rights. And coming on the heels of Washington State Department of Licensing v. Cougar Den—in which Gorsuch joined the liberals to affirm states’ obligations to the tribes they displaced—Herrera reveals a court shifting left on tribal disputes. Thanks to the conservative justice’s vote, American Indian plaintiffs are enjoying an unusually good term at the Supreme Court. What’s behind this curious alliance?

The most obvious answer is that Gorsuch is simply more sympathetic to tribal rights than his conservative colleagues. And if that is indeed the case, then it should come as no surprise. As a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch consistently ruled in favor of tribes’ right to govern their own affairs and rely upon promises made by the state and federal governments. For that reason, multiple tribes endorsed Gorsuch’s nomination to the Supreme Court. Alvin Not Afraid Jr., chairman of the Crow Tribe Executive Branch, told the Senate that Gorsuch “has consistently demonstrated not only a sound understanding of Federal Indian Law principles, but a respect for our unique and closely held cultural values.” John Dossett, then general counsel of the National Congress of American Indians, wrote that Gorsuch “appears to be both attentive to the details and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility.”

So it was not a shock when, in March, Gorsuch hopped on board with the liberal justices to deliver a win to the Yakama Nation in Cougar Den. In that 5–4 decision, the court had to interpret an 1855 treaty in which the Yakamas surrendered 10 million acres of their land—a quarter of present-day Washington state—in return for, among other things, “the right, in common with citizens of the United States, to travel upon all public highways.” Today, Washington imposes a tax on gasoline brought into the state on a highway. The tribe claimed an exemption from that tax, arguing that the treaty envisioned a sweeping right to bring goods freely to the tribal market.

Siding with the Yakamas, Gorsuch explained that when the court is “dealing with a tribal treaty,” it must “give effect to the terms as the Indians themselves would have understood them.” He pointed out that the federal government “drew up this contract” and employed its “power of the pen” to “its advantage.” Citing findings in an earlier case, he wrote:

During the negotiations “English words were translated into Chinook jargon … although that was not the primary language” of the Tribe. After the parties reached agreement, the U. S. negotiators wrote the treaty in English—a language that the Yakamas couldn’t read or write. And like many such treaties, this one was by all accounts more nearly imposed on the Tribe than a product of its free choice.

Gorsuch explained that in the Yakama language, the phrase “in common with” actually meant “[for] general use without restriction.” Thus, they believed the treaty gave them “the right to travel on all public highways” without being taxed “while engaged in the transportation of tribal goods.” As a result, Washington may not tax gas that Yakamas import onto tribal land via highways. Gorsuch concluded:

Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

Monday’s case, Herrera, is more consequential than Cougar Den. It pits a conservative principle, the equal sovereignty of states, against tribal rights. In 1868, the Crow Tribe gave up most of its territory (located partly in present-day Wyoming) to the United States in exchange for the right to hunt on the land. Then, in 1890, the federal government admitted Wyoming as a state without mentioning American Indian treaties. In 2014, pursuant to the 1868 treaty, but in violation of state law, Clayvin Herrera, a member of the Crow Tribe, hunted elk in Wyoming. The state charged him with illegal hunting and argued that he could not raise the treaty as a defense. Why? Because when Congress admitted Wyoming into the union, it silently overrode existing American Indian treaties, allowing the state to start fresh.

It might sound absurd to assert that an American Indian treaty can be trashed so easily. But in 1896’s Ward v. Race Horse, the Supreme Court held exactly that. Invoking the doctrine of “equal footing,” the court insisted that when Wyoming became a state, it gained a power “vested in all other States of the Union”: the ability “to regulate the killing of game within their borders.” And because the treaty limited that ability, it was voided by statehood.

In Herrera, Gorsuch and the liberals rejected Race Horse, ruling that it had been “repudiated” by a more recent decision and now “retains no vitality.” Writing for the court, Justice Sonia Sotomayor declared that treaties are not “impliedly extinguished at statehood.” Instead, Congress “must clearly express” its “intent to abrogate Indian treaty rights.” Because it didn’t do so here, the treaty remains in force. Wyoming can still raise separate technical objections by arguing that Herrera is bound by an older 10th Circuit decision. But in a lengthy footnote, Sotomayor suggested that Herrera might be able to overcome this hurdle.

Gorsuch’s vote in Herrera was not easy to predict. After all, Herrera revolves around the principle of equal sovereignty among states, which the conservative justices relied upon to gut the Voting Rights Act in 2013. Why did Gorsuch chose tribal rights over state sovereignty? It’s tempting to devise cynical explanations for his vote; for instance, he may wish to swing left on American Indian issues to prove he’s not a partisan or doctrinaire conservative. But the simplest answer is also the most likely: The court’s only Western justice has a firm grasp on American Indian law and an obvious empathy for tribes and their members. Among his colleagues, only Sotomayor has evinced a similar solicitude for, and scholarly interest in, the rights of American Indians.

Unfortunately, Gorsuch is recused from this term’s third tribal case, Carpenter v. Murphy, which will decide whether nearly half of Oklahoma falls under tribal jurisdiction. (He was involved in the case when he was a judge on the 10th Circuit.) If SCOTUS splits 4–4, it will affirm the lower court’s ruling, which found that the Oklahoma land is, indeed, tribal. No matter how the justices decide, though, Gorsuch’s voice will be missed in Carpenter. Alone among the court’s conservatives, the justice has a distaste for the “old and familiar story” of the U.S. government breaking its promises to tribes. Whatever the flaws of his broader jurisprudence, Gorsuch recognizes his court’s responsibility to enforce treaty rights that the government finds inconvenient today. “It is,” as he wrote, “the least we can do.”