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September 01, 2017

Justice Gorsuch and Federal Indian Law

by John Dossett

On April 7, 2017, the Senate voted to confirm Justice Neil Gorsuch to fill the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia. Justice Gorsuch has served on the Tenth Circuit since 2006, and his judicial record received significant media attention during the Senate confirmation hearings. Although it was a contentious confirmation process, now that it is over, there is perhaps an opportunity to consider areas of his record that received less media attention at the time. One of these is his experience in federal Indian law.

Justice Gorsuch hails from the West, with the Tenth Circuit encompassing six states: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming; and the territory of 76 federally recognized Indian tribes. Western experience has been lacking on the Court in recent years and is a vitally important perspective. As an example, Justice Sandra Day O’Connor came to the Court in 1981 as a former attorney, legislator, and judge for the State of Arizona, and participated in the 2001 historic visit to Indian reservations to learn more about tribal judicial systems and federal Indian law. Justice O’Connor was very important to Indian tribes because she was interested in federal Indian law and took it seriously. She was more pragmatic and restrained in her decisions regarding tribes and more familiar with Indian tribes as functioning governments recognized in the U.S. Constitution. Her retirement in 2006 left a gap in this area.

A historical example is Justice Willis Van Devanter. As a young attorney, Van Devanter moved to Wyoming and served as chief justice of the Wyoming Territory. In 1897, President McKinley appointed Van Devanter to be assistant attorney general at the U.S. Department of the Interior, where he gained experience and apprecation for federal Indian law. Van Devanter joined the Eighth Circuit in 1903 and was nominated to the Supreme Court by President Taft in 1911. During his time on the Court, Van Devanter wrote a string of important decisions regarding tribal land rights, including U.S. v. Sandoval, 231 U.S. 28 (1913); Alaska Pacific Fisheries v. U.S., 248 U.S. 78 (1918); and U.S. v. Creek Nation, 295 U.S. 103 (1935). Van Devanter’s work was later codified into the statutory definition of “Indian Country.”

Gorsuch appears to share a similar interest in Indian law. Justice Gorsuch has significantly more experience with Indian law cases than other recent Supreme Court nominees. His opinions have commonly recognized tribes as sovereign governments and have addressed issues such as state police incursion onto tribal lands, sovereign immunity, religious freedom, accounting for trust funds, exhaustion of tribal remedies, and Indian Country criminal jurisdiction. The following is a brief summary of five of his decisions in federal Indian law.

Tribal Sovereignty

In Ute Indian Tribe v. State of Utah, 790 F.3d 1255 (10th Cir. 2015), the Ute Tribe argued the State of Utah and several local governments were unlawfully displacing tribal authority by prosecuting tribal members in state court for conduct on tribal lands. Gorsuch’s decision describes the history of reservation policy for the Ute Tribe and demonstrates an appreciation for the federal responsibility to protect tribal sovereignty from state intrusion: “Indeed, the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time. Not only is the prosecution of Ms. Jenkins itself an infringement on tribal sovereignty, but the tortured litigation history that supplies its backdrop strongly suggests it is part of a renewed campaign to undo the tribal boundaries. . . .” Ute Tribe at 1005. The decision was soon followed by Ute Indian Tribe v. Myton, 835 F.3d 1000 (10th Cir. 2016), where Gorsuch again addressed repeated local government efforts to prosecute tribal members for crimes committed within reservation boundaries. This opinion gains force from resolute adherence to precedent in favor of tribal jurisdiction (“an inkling of Sisyphus’s fate”) and takes the unusual step of reassigning the case to a new federal district court judge because of failure to give effect to previous rulings.

Trust Responsibility and Canons of Construction

In Fletcher v. United States, 730 F.3d 1206 (10th Cir. 2013) Gorsuch provides a legal history of the trust responsibility between the federal government and tribes, including individual Indian account holders: After settlers displaced the Osage Nation from its native lands, the federal government shunted the tribe onto the open prairie in Indian Territory, part of what later became the State of Oklahoma. At the time, the government had no idea those grasslands were to prove a great deal more fertile than they appeared. Only years later did the Osages’ mammoth reserves of oil and gas make themselves known. When that happened, the federal government appropriated for itself the role of trustee, overseeing the collection of royalty income and its distribution to tribal members. That role continues to this day. In this lawsuit, tribal members seek an accounting to determine whether the federal government has fulfilled the fiduciary obligations it chose to assume. The district court dismissed the tribal members’ claims. We reverse. Fletcher at 1207.

The laws of trust and trustees, Gorsuch suggests, apply so long as consistent with Congress’s statutory directions. Rather than deference to the Department of the Interior’s interpretation, Gorsuch uses the statutory canons of construction to support his analysis. “If any doubt remains (and we harbor none), we would still reach the same conclusion because, again, statutory ambiguities in the field of trust relations must be construed for, not against, Native Americans.” Fletcher at 1212.

Religious Freedom

In Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014), an enrolled member of the Northern Arapaho Tribe housed in a special protective unit sought access to a sweat lodge located in the general prison yard. State prison officials asserted that the cost of security for transport to the sweat lodge was unduly burdensome, and Yellowbear filed for injunctive relief under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the District of Wyoming granted summary judgment for prison personnel. The Tenth Circuit reversed and remanded with Gorsuch writing for a unanimous panel that the existence of a compelling government interest to deny a prisoner’s request under RLUIPA must be based on more than generalized security and cost concerns. Instead, the government must demonstrate its compelling interest in the context of the particular burden the government has placed on the particular claimant. “[T]he deference this court must extend to the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.” Yellowbear at 59. The opinion was quoted by Justice Sonia Sotomayor’s concurrence in Holt v. Hobbs, 135 S.Ct. 853, 867 (2015).

Exhaustion of Tribal Remedies

In United Planners Financial Services v. Sac & Fox Nation, 654 Fed. Appx. 376 (10th Cir. 2016), the Sac & Fox Nation brought suit in tribal court alleging a breach of contract. United Planners responded by asking a federal district court to enjoin the tribal court lawsuit. The district court held that United Planners had failed to exhaust its tribal court remedies. Gorsuch’s opinion upheld the district court and rejected United Planners’ argument for an exception based in bad faith. “And as United Planners candidly acknowledged during oral argument, nothing prevents the company from raising those defenses in tribal court. An available tribal court remedy thus remains unexhausted and should be tried before a federal court intercedes, just as the district court recognized.” United 9 Vol. 43 No. 1 Planners at 377. Gorsuch’s opinion is notable mostly as part of the Tenth Circuit’s continued adherence to the principle of exhaustion of tribal court remedies, where other circuits are scaling back support for exhaustion principles.

Indian Law Questions Gorsuch May Consider as Supreme Court Justice

Although the Court considers a broad range of issues affecting tribal nations, one fundamental question continues to arise in recent years: What are the sources of federal authority in Indian Country?

The common view of federal authority in Indian affairs is of a “plenary” power drawn from the Indian Commerce Clause, the Treaty Clause, and sources outside the text of the Constitution. Beginning with United States v. Kagama, 118 U.S. 375 (1886) and running to United States v. Lara, 541 U.S. 193 (2004), a long series of Supreme Court decisions have synthesized congressional authority over Indian affairs into a nearly unlimited authority based in a guardian-ward relationship as well as “preconstitutional powers necessarily inherent in any Federal Government.” Lara at 200- 01. The decisions rely on precedents from past eras where the Supreme Court showed great deference to Congress asserting control over Indian tribes and tribal lands.

However, tribal leaders and legal advocates have long objected to the notion of an omnipotent source of power not found in the text of the Constitution, and, in recent years, the Supreme Court has been asking questions about this plenary source. Justice Clarence Thomas has raised the most direct concerns, as his concurrence in Lara challenged the plenary power doctrine. “As this case should make clear, the time has come to reexamine the premises and logic of our tribal sovereignty cases.” “I cannot agree with the Court, for instance, that the Constitution grants to Congress plenary power. . . . I cannot locate such congressional authority in the Treaty Clause, U.S. Const., Art. II, §2, cl. 2, or the Indian Commerce Clause, Art. I, §8, cl. 3.” Lara at 214. Since 2004, Justice Thomas has raised these questions in three subsequent decisions; Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013); United States v. Bryant, 136 S. Ct. 1954 (2016); Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863 (2016).

Justice Anthony Kennedy raised similar concerns recently during oral argument in Dollar General v. Mississippi Choctaw, 579 U.S. ___ (2016), a case involving tribal civil jurisdiction over a tort committed by a non-Indian store manager. Justice Kennedy led a series of questions challenging Dollar General’s assertion that Congress could authorize tort litigation in tribal courts. “Could Congress pass a law saying that all 500plus Indian tribes in the United States have unlimited criminal authority, could impose life sentences on nontribal members, American citizens? What are the limits?” After receiving a negative response from Dollar General’s counsel, Justice Kennedy continued: “Well, if there is a limit on that, why isn’t there a limit on what Congress could do with reference to tort law?” Dollar General resulted in no decision, with the judgment of the Fifth Circuit affirmed by an equally divided Court. Given the tenor of the oral argument in Dollar General, it appears that questions about the source of federal authority in Indian affairs will resurface in future cases.

In this context, Gorsuch’s experience with Indian law and federal lands issues may be useful in examining other sources of federal authority in Indian Country. The Territory or Property Clause, Art. IV, Section 3, provides that, “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The Territory Clause is also a fundamental source of federal authority within the territory defined as “Indian Country.”

Prior to 1948, “Indian Country” was an undefined term in the federal criminal law that caused a great legal debate for many decades. Justice Van Devanter played a great role in resolving this debate, which resulted in three decisions: U.S. v. Celestine, 215 U.S. 278 (1909); U.S. v. Sandoval, 231 U.S. 28 (1913); U.S. v. Pelican, 232 U.S. 442 (1914), all relying on the Territory Clause. The statutory definition of “Indian Country” at 18 U.S.C. §1151 reflects the holdings of these cases, nearly verbatim. The Supreme Court upheld this definition in Seymour v. Superintendent, 368 U.S. 351 (1962), and the role of the Territory Clause in Indian Country has been relatively unnoticed since that time.

The Territory Clause offers a deep well of authority accompanied by principled limitations. The Constitution’s framers were steeped in the common law of property rights and understood their acquisition of territorial authority in Indian Country to be accompanied by trust duties. To settle the process for admission of new states, the 13 original states agreed to transfer Western land claims to the federal government under the principles in the Northwest Ordinance, setting the stage for the Constitutional Convention. The original purpose of Article IV, Section 3, was to provide for federal authority for the Northwest Ordinance, for the creation of new states, and for the governance of Indian Territory. The Northwest Ordinance sets out the framers’ understanding of the federal trust obligations to Indian tribes: The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.” 1 U.S.C.A. Organic Laws.

The Northwest Ordinance is included among the Organic Laws of the United States, along with the Declaration of Independence, the Articles of Confederation, and the Constitution. The Territory Clause and the Northwest Ordinance provide a source of authority and accompanying principles for federal laws in Indian Country.

The Constitution also grants Congress the power to define “offenses against the law of nations,” in Art. I, Sec. 8, Cl. 10. There is no doubt that the Founders considered the indigenous peoples of the United States to be nations. John Rutledge of South Carolina, who chaired the Committee of Detail during the Constitutional Convention, wrote “Indian Affairs” next to “the Law of Nations” in his copy of the draft constitution. Records of the Federal Convention of 1787, at 594 (M. Farrand rev. ed. 1937). On September 17, 1789, one year after ratification, President Washington wrote to the Senate: “It doubtless is important that all treaties and compacts formed by the United States with other nations whether civilized or not, should be made with caution, and executed with fidelity. . . .” Washington went on to urge Congress to ratify “the treaties with certain Indian nations” including the Six Nations of New York and the Wyandot. From George Washington to the United States Senate, September 17, 1789.

What is an offense against the law of nations? Reference is often made to Emer de Vattel’s seminal The Law of Nations first published in 1758. This voluminous work is said to be “unrivaled among such treatises in its influence on the American Founders.” Peter and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814 (1993). Vattel focused on natural laws that govern the rights and obligations between nations, particularly navigation, trade, war, and laws regarding citizenship status.

The Indian Child Welfare Act regulates the custody of Native children and provides placement preferences for family members. 25 U.S.C. Chapter 21. Vattel recognized citizenship of children as a subject of The Law of Nations: “As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it.” Vattel, The Law of Nations, p. 100. The Offenses Clause, with its broad language and firm anchor in Vattel’s conceptual work, provides additional authority to regulate relationships among tribal and state governments. See, Andrew Kent, “Congress’s Under-Appreciated Power to Define and Punish Offenses against the Law of Nations,” 85 Tex. L. Rev. 843 (2007).

In this era, given Supreme Court limitations on the Commerce Clause and skepticism toward plenary power, both the Territory Clause and the Offenses Clause provide textual sources of federal authority in Indian affairs that merit further consideration. With his Western experience and inclination toward textual interpretation, we can hope that Justice Gorsuch will champion this more fundamental understanding of federal authority in Indian Country.


During his time on the Tenth Circuit, Gorsuch wrote 18 legal opinions and participated in an additional 42 cases relating to federal Indian law or Indian interests that provide a window into his views. Of course, as with any appointment to the Supreme Court, it is impossible to predict how Justice Gorsuch will decide cases in the future. It is encouraging, however, that Justice Gorsuch has signficant experience with federal Indian law and appears to be both attentive to the details and respectful to the fundamental principles of tribal soveriegnty and the federal trust responsibility. This level of familiarity is noteworthy on a Supreme Court where most of the justices came to the Court with much less experience.

John Dossett is the general counsel to the National Congress of American Indians (NCAI). His work at NCAI began in 1995 and includes a range of legal, legislative, and intergovernmental issues relating to the rights of Indian tribal governments. He also codirects the Tribal Supreme Court Project along with the Native American Rights Fund.

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