Neil Gorsuch “doesn’t just join with the liberal Justices when it comes to tribal rights; he often seems to lead them,” tnycloseread writes. Could his commitment to Native American rights actually make a difference?
and abortion, Gorsuch has been the Justice that conservatives wanted him to be. Not so with tribal law. Adam Liptak, of theThere are various theories about the source of Gorsuch’s commitment, including his childhood in the West, his textualism-based judicial philosophy , and his experience dealing with tribal-law cases while a judge on the Tenth Circuit Court of Appeals, based in Colorado.
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 shouldn’t 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.
In 1961, in the midst of an earlier round of litigation involving the river, the Navajo had petitioned to be allowed to intervene—to appear on their own behalf—but the federal government successfully opposed them, saying, in effect, that representing the tribes in this area was its job. And yet Kavanaugh’s opinion suggests that asking the government to actuallythat job is outlandish.
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.
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