Last Thursday, in the case of Arizona et al. v. Navajo Nation et al., the Supreme Court dealt the tribe a serious blow. The case involved the future division of the waters of the Colorado Riveran issue of existential concern to millions of people across seven Western states, including a hundred and seventy thousand who live on the Navajo reservation. The Colorado is drying up, because of drought and overuse, a situation that is inseparable from the climate crisis. In light of the coming fight over the rivers water, the Navajo had sued the Department of the Interior and other federal agencies, asking for an accounting of what rights to that water the government held in trust for the tribe, under an 1868 treaty, and for a plan to manage those rights. Arizona, Nevada, and Colorado then intervened in an attempt to block that process. Brett Kavanaugh wrote the majority opinion, joined by four other conservative Justices, which peremptorily turned the Navajo awayanother chapter in an old, sad story. Neil Gorsuch wrote a dissent, joined by the three liberal Justices, which passionately vindicated the tribes rights. That lineup of Justices is part of a new, curious story of Gorsuchs emergence as something of a legal champion for Native Americans.
Gorsuch, of course, is a conservative himself, and not a mild one. Donald Trump nominated him to the Court just eleven days after his own Inauguration; Mitch McConnell, who was then the Senate Majority Leader, had held the seat open after Justice Antonin Scalia died, nine months before the Presidential election. In most areas of law, notably those to do with guns and abortion, Gorsuch has been the Justice that conservatives wanted him to be. Not so with tribal law. Adam Liptak, of the Times, recently called him the fiercest proponent of Native American rights on the Court.
There are various theories about the source of Gorsuchs commitment, including his childhood in the West, his textualism-based judicial philosophy (if one reads the text of the treaties that the U.S. signed with the tribes, one will find a lot of unkept promises), and his experience dealing with tribal-law cases while a judge on the Tenth Circuit Court of Appeals, based in Colorado. But there are Westerners and textualists who have little time for the tribes, and Gorsuch stood out on the Tenth Circuit, too. (A number of Native American organizations and tribes supported his confirmation.) The more compelling question might be whether Gorsuchs interest is more than a quirksomething that actually makes a difference. Does it change how one sees Gorsuch; the culture of the Court; or, most important, the situation for Native Americans?
Its worth noting that Gorsuch doesnt just join with the liberal Justices when it comes to tribal rights; he often seems to lead them. In Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, which was decided on June 15th and involved bankruptcy law, Gorsuch was the lone dissenter on the side of the Chippewa. His opinion quoted a 1789 letter from Secretary of War Henry Knox to President George WashingtonGorsuchs tribal-law writings tend to be rich in historical referencesand included a strangely convincing analogy between tribal sovereignty and Neapolitan ice cream. (The point was that the Constitution gives federally recognized tribes a unique political status.) In a second ruling on the same day, in Haaland v. Brackeen, the Court turned back challenges to the Indian Child Welfare Act in a 72 decision by Justice Amy Coney Barrett, but did so largely on narrow technical grounds. Kavanaugh wrote a concurring opinion to emphasize that a future challenge to the law might be decided the other way. Gorsuch wrote a separate, fiery concurrence laying out the family-destroying policies that the I.C.W.A. was meant to redress. Those included government-backed boarding schools meant to kill the Indian children who were forcibly sent there. Gorsuch recounted how Congress had authorized the Secretary of the Interior to prevent the issuing of rations or the furnishing of subsistence to Indian families who would not surrender their children.... When economic coercion failed, officials sometimes resorted to abduction. Justices Jackson and Sotomayor joined that concurrence in part, while Kagan did not.
Haaland v. Brackeen, at least, was a victory for the tribes, if a tentative one. Arizona v. Navajo Nation most definitely was not. Kavanaugh brushed aside all of the issues raised by the 1868 treaty with the testy complaint that the federal government shouldnt be asked to secure water for the Navajos. He made it sound as if the tribe were asking the feds to bring a truckload of Perrier to a party. He wondered what they might ask for nextfor the government to do their farming for them? Kavanaugh sounded so put-upon that it was a wonder he didnt call the Navajo uppity.
Gorsuch wrote that Kavanaugh was turning down a request the Navajo Nation never made. They werent asking for anything special, he wrote. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribes behalf. And everyone agrees the extent of those rights has never been assessed. Gorsuch wrote about how, over decades, the Navajo had tried to get an answer to the basic question of how much of the Colorados mainstream they were entitled toand the government wouldnt tell the tribe. Now that water is being divvied up, in conditions of scarcity, without anyone speaking up for them.
In 1961, in the midst of an earlier round of litigation involving the river, the Navajo had petitioned to be allowed to interveneto appear on their own behalfbut the federal government successfully opposed them, saying, in effect, that representing the tribes in this area was its job. And yet Kavanaughs opinion suggests that asking the government to actually do that job is outlandish. Gorsuch compared the tribes dilemma to that of people who go to the Department of Motor Vehicles only to be told, over and over, that they are on the wrong line.
What gives Gorsuchs opinions on tribal law such power is, again, his command of history. Kavanaugh suggests that water is a novel wish for the tribe. Gorsuch writes that water was, in fact, the decisive issue in the negotiations that led to the creation of the Navajo reservation, adding, Really, few points appear to have been more central to both parties dealings. Between 1849 and 1868, U.S. troops brutally expelled the Navajo from their landsburning their homes, storehouses, and fields; shooting those who couldnt keep up on forced marches known as the Long Walkand drove them onto a stretch of dry terrain known as the Bosque Redondo, where the scant water available was laced with unwholesome minerals.
The Navajo kept up their resistance, with the goal of returning home; finally, General William Tecumseh Sherman was sent to negotiate what became the 1868 treaty. Gorsuch quotes the records of the negotiations, in which Sherman used the question of water as an inducement for the Navajo to settle. He offered to send the tribe to yet another place, but his counterpart, the Navajo leader Barboncito, refused to accept any land outside their home territory, because of its known water supply. They got a piece of that landthough less than Sherman had led them to believewhich now forms their reservation. Gorsuch quotes a historian who described that partial victory as a testament to the will of the Navajopersonified in the intense resolve of Barboncito.
An opinion like that makes for good, instructive reading. But does it matter? The fatalistic answer might be no: all that Gorsuchs vote means is that the Navajo lost 54, rather than 63. The conservatives still have a super-majority, and on most days Gorsuch is still the Gorsuch who voted to overturn Roe v. Wade. From that pessimistic perspective, his seriousness about treaties and the tribes constitutional status serves only to highlight the hypocrisy of so-called textualists and originalists on the Court who dont seem to think, when it comes to the tribes, that language or history matter quite so much. In an extraordinary concurrence in Arizona v. Navajo Nation, Justice Clarence Thomas frets that the frequent appearance of the terms trust relationship and trust in the Courts tribal-law jurisprudencewith regard to the U.S.s role as a trustee managing certain resourcesmay lead people to take those words too seriously. For Thomas, they refer merely to the trust that Indians place in the Federal Government. After all, Thomas writes, without a hint of irony, many people around the world trust our government to do the right thing.
But dissents do matter; they have often been part of a long process of building an alternative consensus on the Court. At the very least, other Justices presumably read and, to some degree, have to reckon with Gorsuchs arguments. (Its possible that the decision of certain conservative Justices to, effectively, punt on the constitutionality of the child-welfare law and let it stand for now is to some extent ascribable to his influence.) Gorsuch will have had dozens of clerks by the end of his tenure on the Court. Some will go on to be law professors and judges, or even Justices. (Gorsuch was a clerk for Justices Byron White and Anthony Kennedy.) Theyll carry some of his tutelage in this area with them. And, along the way, they will likely work with clerks for liberal Justices when they join these opinions. In a Court, and a country, as polarized as this one, such exchanges can be helpful. Its not bad to be reminded that people are complicated. Elie Mystal, of The Nation, after puzzling over Gorsuchs lack of empathy for other groups, wrote that the Justice might be the strongest defender of tribal sovereignty who had ever sat on the Court, and I choose to be thankful for that.
Significantly, Gorsuchs Navajo Nation opinion is written not as a doleful tragedy but as a call to action. As he sees it, the contradiction between the governments position in 1961 and the one it is taking now offers a legal opening for the Navajo to try, again, to intervene in the Colorado River litigation on their own behalf. As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it, he writes. A Supreme Court Justice isnt going to be the hero of this story, in other words; Barboncito is.
The rest is here:
Does It Matter That Neil Gorsuch Is Committed to Native American ... - The New Yorker
