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 19
th-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 10
th 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."
