On January 31, 2017, President Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to the United States Supreme Court to fill the vacancy left by the late Justice Antonin Scalia. Judge Gorsuch is known for his candid and entertaining opinions as well as his strict adherence to the Constitution and the text of existing statutes. What is less known is his position on novel legal issues affecting Indian country.
Judge Gorsuch has served as a judge on the United States Court of Appeals for the Tenth Circuit since his appointment by George W. Bush in 2006. The territorial jurisdiction of the Tenth Circuit includes the six states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, in addition to portions of the Yellowstone National Park extending into Montana and Idaho. While sitting on the Tenth Circuit, Judge Gorsuch has had ample opportunity to address Indian law issues. He has authored over a dozen opinions and has participated in approximately twenty decisions affecting or concerning Indian law issues. A survey of these decisions shows Judge Gorsuch’s record on Indian law must be examined carefully and does not lend itself to clear determinations of support or opposition of particular Indian rights.
A simple up-down count of Judge Gorsuch’s voting record in cases involving Indian law or rights does not accurately characterize his views on Indian law. For example, in Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2013), Judge Gorsuch, writing for the court, held that a prison’s complete denial of an Indian inmate’s use of the prison’s sweat lodge in furtherance of his practice of Native American religious traditions violated the Religious Land Use and Institutionalized Persons Act. At first glance, this case appears to be a strong case in support of Indian rights. However, on closer examination, the case had little to do with Native American religious freedoms and more to do with state encroachment on religious freedom in general. In other words, the sincerity of Mr. Yellowbear’s faith and the legitimacy of Native American religious traditions were not at issue; rather, at issue was whether the state had a compelling governmental interest in completely denying this particular inmate from practicing his religion and whether the state did so in the least restrictive means.
On occasion, Indian litigants have found great success with Judge Gorsuch. For example, in Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton, 835 F.3d 1255 (10th Cir. 2016), the court overruled the lower court and held that local governmental officials indeed sought to improperly exercise criminal jurisdiction over tribal members on lands that were previously restored to tribal jurisdiction. In addition to this holding, this case is notable for two other reasons: (1) the equitable remedy granted and (2) Judge Gorsuch’s tone. Despite no sign of bias, the court granted the extraordinary relief of reassigning the District Court judge on remand because the court found that the lower court failed to give effect to settled law and there was little hope that the lower court would do so on remand. Additionally, Judge Gorsuch’s disapproval of the state actors’ continued attempts to exercise jurisdiction over tribal land and to relitigate long-settled disputes was evident throughout the opinion.
Judge Gorsuch’s strong support for rule of law and fidelity to precedent provides optimism for the vitality of tribal sovereign immunity and other tribal interests. Indeed, Judge Gorsuch has consistently signed on to numerous opinions favoring the doctrine of tribal sovereign immunity without objection. See e.g., Sanders v. Anoatubby, 631 F. App’x 618 (10th Cir. 2015); Bonnet v. Harvest Holdings, 741 F.3d 1155 (10th Cir. 2014); Nanomuntube v. Kickapoo Tribe, 631 F.3d 1150 (10th Cir. 2011). And he has required litigants to exhaust tribal remedies before pursuing their claims in federal court, both in the criminal and civil contexts. See e.g., United Planners Financial Services v. Sac and Fox Nation, 654 F. App’x 376 (10th Cir. 2016); Valenzuela v. Silversmith, 699 F.3d 1199 (10th Cir. 2011).
In some instances, however, his record suggests the need to be vigilant. For instance, in Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144 (10th Cir. 2014), the Tenth Circuit declined to extend the tribal sovereignty to tribally owned business incorporated under Oklahoma law. Judge Gorsuch wrote a concurring opinion to further explain why he believed this corporation was not entitled to tribal sovereign immunity. The reasons for such a conclusion were as follows: (1) Oklahoma law clearly and expressly define a corporation as a separate and distinct legal entity from its owners; (2) allowing tribal sovereign immunity would impermissibly enable the Tribe to commandeer the State’s legislative process and rewrite the statutory terms and conditions of its corporation law; (3) extending tribal sovereign immunity would undermine tribal self-determination and self-sufficiency by not giving effect to the Tribe’s free choice to incorporate under Oklahoma law rather than its own law; and (4) case law in the Tenth Circuit had never extended tribal sovereign immunity to entities incorporated under the laws of a second sovereign. Yet, despite this seemingly harsh stance towards tribal sovereign immunity, Judge Gorsuch does not doubt the basic principles of tribal sovereign immunity, recognizing, “Of course, Indian tribes are entitled to sovereign immunity absent congressional abrogation.”
The support of this basic underlying doctrine—that tribal sovereign immunity is settled law—is important because Judge Gorsuch is to replace Justice Scalia. It is well known that Justice Scalia had a record for voting against tribal interests and authored several opinions that chipped away at tribal sovereignty. Judge Gorsuch’s record is less clear. While the nominee’s consistent application of settled principles of federal Indian law in favor of tribal interests is encouraging, his record is not a measure for how he will address novel legal issues that reach the high court. Considering the circumstances, the nomination of Judge Gorsuch to the United States Supreme Court is neither a clear win nor a definite loss for Indian country.