Neil Gorsuch’s adherence to a judicial philosophy of “strict interpretation” was lauded by conservatives in the run-up to his confirmation as a Justice of the US Supreme Court. Ed Whelan, in the National Review (February 1, 2017), called Gorsuch “a brilliant jurist and dedicated originalist and textualist,” and said he would be “A Supreme Successor to Justice Scalia.” David Savage, in the Los Angeles Times (March 24, 2017), said “Gorsuch…appears to be a strict ‘textualist’ who believes in following the exact words of a law, even if doing so leads to a seemingly unfair or undesired result.” Most observers shared the view that Gorsuch would embrace the rightward tilt of the court fostered by Antonin Scalia, the justice he would replace. 

Notwithstanding these expectations, Justice Gorsuch’s authorship of US Supreme Court opinions in two major federal Indian law decisions shows that the conservative “strict interpretation, originalist” approach to legal reasoning can have consequences surprisingly pleasing to those who have fought for the rights of Native Americans for centuries. 

In Washington State Department of Licensing v. Cougar Den, Inc. (2019), Gorsuch upheld Yakama Nation Treaty rights to use Washington state highways, in the face of strong objections by both state and the federal governments. In his concurring opinion, he pointed out that the Yakama Treaty explicitly reserves “the right, in common with citizens of the United States, to travel upon all public highways.” He rejected Washington and US arguments that the phrase “in common with” means the Yakama are in the same position as state citizens and must pay state road taxes. To the contrary, Gorsuch wrote, “In the Yakama language, the term ‘in common with’ . . . suggest[ed] public use or general use without restriction.” Relying on a strict reading of the Treaty language, Gorsuch brushed aside objections from supposedly stricter colleagues (Roberts, Thomas, Alito, and Kavanaugh) who warned of “dire consequences” if the Yakama could freely use state roads. 

In McGirt v. Oklahoma (2020), Gorsuch upheld the terms of Creek Nation Treaties that “solemnly guarantied” a “permanent home to the whole Creek nation…[where no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Oklahoma and the federal government strongly opposed any reliance on the terms of the Treaties. They argued that Creek government had been “terminated” by a series of state and federal actions. Gorsuch said their arguments were based on “extratextual sources” concocted from “some stray language from a statute that does not control here, a piece of congressional testimony there, and the scattered opinions of agency officials everywhere in between.” He rejected them all as efforts “to sow doubt around express treaty promises.” 

Gorsuch’s opinions in Cougar Den and McGirt stand for the proposition that the philosophy of “strict interpretation” requires close adherence to all texts, not simply US constitutional texts. Moreover, Gorsuch emphasized that the principle of strictly interpreting the text of a Treaty also means affirming the treaty process. As he put it in Cougar Den, “If the State and federal governments do not like that result [of the 1855 Treaty], they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court.” Similarly in McGirt, Gorsuch responded to the dissenters’ worry about “drastic consequences” of affirming the Creek Treaties by saying Oklahoma “has negotiated … intergovernmental agreements… with the Creek” and “the spirit of good faith, ‘comity and cooperative sovereignty’ behind these agreements” will sustain future negotiations.

Gorsuch has changed the climate in the US Supreme Court’s federal Indian law jurisprudence in ways not imaginable in recent years. At the National Congress of American Indians 70th Annual Convention in Tulsa, Oklahoma, in October 2013, Richard Guest, the Native American Rights Fund’s lead staff attorney in Washington, sounded an alarm. Gale Toensing reported in Indian Country Today (28 October 2013) that Guest said, “We’ve had one win and nine losses in front of the Roberts court. And our message … is …: Stay out of the courts!” Guest added, “the majority of judges” on the Supreme Court are “very conservative, have no understanding of Indian country at all. No interest in your issues.” Four years later, a ray of optimism appeared in a NARF “Indian Law Perspective” (16 March 2017) on the nomination of Neil Gorsuch, concluding, “Judge Gorsuch has significant experience with federal Indian law, appears to be attentive to detail, and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility.”

The fact that Justice Gorsuch has emerged as a serious scholar of Treaties and Treaty history is important. But it is not sufficient to remake US federal Indian law in the way it needs to be remade. His opinions in Cougar Den and McGirt, and his joining the four “liberal” justices to affirm Crow Nation hunting rights in Herrera v. Wyoming (2019) are indeed significant legal victories for the Yakama, Creek, and Crow nations. But none of those decisions reached and overturned the fundamental federal Indian law doctrine of US domination over Indigenous lands and peoples—the doctrine of “Christian discovery.” 

In a nutshell, Christian discovery doctrine says the US has “title” to all Indigenous lands and “plenary power” over Indigenous nations and peoples. The US Supreme Court adopted Christian discovery in 1823 in Johnson v. McIntosh, where it relied on this relic of 15^th century colonialism to declare that Indigenous nations are “mere occupants” of their lands, not owners. The doctrine of domination persists in US law to this day. In fact, it is the unstated basis for the McGirtand Herrera opinions, each of which focuses on whether the US Congress has “clearly expressed” an intention to breach the terms of a Treaty. The presumption that Congress has the right to unilaterally breach US Treaty obligations rests on the doctrinal platform of Christian discovery. 

Gorsuch stated the Christian discovery presumption this way in McGirt: “This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. Lone Wolf v. Hitchcock (1903). But that power, this Court has cautioned, belongs to Congress alone. Nor will this Court lightly infer such a breach….” By citing Lone Wolf, Gorsuch avoided having to cite the original case, Johnson v. McIntosh, but his focus on “Congressional intent” derives from that root.

McGirt invoked Christian discovery in another cryptic citation purporting to explain why the US can “allow non-Indian settlers to own land on [a] reservation.” Gorsuch wrote, “It isn’t so hard to see why.” He explained that federal homesteader patents “transferred legal title” to Creek land, but “no one thinks … this diminished the United States’s claim to sovereignty. To accomplish that would require an act of cession, the transfer of a sovereign claim from one nation to another.” He then cited “3 E. Washburn, American Law of Real Property *521–*524.” This reference is to a chapter in Emory Washburn’s 1868 A Treatise on the American Law of Real Property discussing “title by public grant.” The chapter begins with a discussion of “the discovery and settlement of this country by Europeans” and says, “Nor has any title, beyond the right of occupation, been recognized in the native tribes by any of the European governments or their successors, the Colonies, the States, or the United States. The law in this respect seems to have been uniform with all the Christian nations that planted colonies here. They recognized no seisin [ownership] of lands on the part of Indian dwellers upon it.” Washburn then says, “The sovereignty and general property of the soil …were claimed …by right of discovery.” This sentence carries a footnote to Johnson v. McIntosh. 

Gorsuch is subtle, more subtle by far than Justice Ginsburg, whose opinion in City of Sherrill v. Oneida Indian Nation of N. Y. (2005) rejected Oneida land title by saying, “Under the ‘doctrine of discovery,’ fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.” (Ginsburg didn’t have the nerve to say “Christian discovery.”)

The fact that McGirt ruled in favor of the Creek Nation provides an excuse of sorts for not looking into the doctrinal basis of the decision. Many commentators, like Amy Goodman on Democracy Now! (10 July 2020), have gushingly described the decision as “a major victory for Indigenous sovereignty.” But make no mistake; McGirt rests on the old doctrine of US domination. First, the decision actually upheld US sovereignty, saying the Creek Nation continues to exist only because the US Congress has not (yet) “clearly terminated” it. Second, on the criminal jurisdiction issue, it upheld application of the federal Major Crimes Act, an assertion of US domination over Indigenous nations’ own criminal jurisdiction. 

Gorsuch has pushed the envelope of federal Indian law, but he and the court are still entirely within that envelope. In Cougar Den, the Yakama Nation stepped entirely outside the envelope and challenged the doctrine of Christian discovery in its September 2018 amicus brief . The Yakama brief said Christian discovery doctrine is “the legal fiction that Christian Europeans immediately and automatically acquired legally recognized property rights in our lands upon reaching the Americas.” The Yakama called on the court “to repudiate the doctrine of Christian discovery and its racist foundations as the basis for federal Indian law.” The Yakama strategy was effective: The court majority, faced with a choice between the Yakama Treaty and the doctrine of religious domination, chose the Treaty. In fact, even the dissenting justices avoided arguments based on Christian discovery and focused only on Treaty language.

It’s possible Gorsuch believes that adhering to treaties is the most that can be done; perhaps he also believes that if enough treaties are adhered to the way would open for a true acknowledgment of Indigenous nationhood and self-government. In any event, the court will only reach the root doctrine if the doctrine is challenged. It remains to be seen how many other Indigenous nations follow the Yakama Nation and call for abandonment of the federal Indian law claim of domination. That would be an historic turning point in US law.

A major international publication reports the significance of Native candidates / politicians in U.S. elections: The Economist, “The rise of Native American politicians” (November 29th, 2018) < https://www.economist.com/united-states/2018/12/01/the-rise-of-native-american-politicians?frsc=dg|e >

Although the article is likely to be well-received by many people, it displays an immense knowledge gap and educational task facing those who work, live, and study Native Nations. A few statements jumped out at me; here they are, with my comments:

1 — 

Deb Haaland, who last month became one of the first native-American women elected to Congress… says… “Representation matters. And if you disagree, try not being represented for over 200 years and then see how it feels to have someone who looks like you in Congress!”

COMMENT: Notice “native-Americans” — lower case “native” positioned as an adjective for uppercase “American,” framing Natives as a sub-category of the dominant identity. This is consistent throughout the article, except where “Native” begins a sentence. Notice also that Haaland sees “representation” in the colonial master’s house as the major significance of her election, presuming that the lack of such “representation” is the root problem; moreover, her key identifier is “looks.” 

2 —

Indians are doggedly beset by poverty, ill health and other social problems. Yet the picture of wretchedness on the reservation this conjures is misleading. Over 70% live in cities, where an educated Indian middle class has emerged. 

COMMENT: Natives may be so far beyond the immediacy of a bond with land that land and nationhood are no longer root issues.

3 — 

Native Americans still represent less than 2% of the population. So none of the candidates for national or statewide office made much of their Indianness on the trail.

COMMENT: Native candidates’ politically necessary submersion of Native issues into a range of ordinary issues undercuts the presumed significance for Natives of their election.

4 — 

There were also signs of a long-standing ambivalence towards national politics. … most expressed little enthusiasm for either party.

COMMENT: The article does not dig into this ambivalence; had it done so, it might have found people with an awareness that Native concerns require independence from the US political system, that Native rights are broader, deeper, and other than civil rights.

 

5 — 

Indians are starting to behave politically more like other groups. Yet they remain heterodox and distinct. Mental health, land rights and criminal justice are among the problems that affect Indians differently, because of their history and because of provisions such as the Indian health service. …  Yet by providing a stronger, subtler voice for native Americans they have an opportunity to accelerate their engagement with national politics.

6 — 

COMMENT: To the extent that “Native America” helps non-Natives figure out their identity, the same subsumption of “Native” within “America” obscures Native identity.

7 — 

COMMENT: The article perpetuates the all too common — even among Natives — trope that “tribes” are “within” states and the US, rather than understanding that Native Nations were here before those map lines were drawn.

When colonized people participate in the politics of their colonizer, does that signify the end of colonialism or its culmination?

When Native Americans act as delegates at Republican or Democratic Party conventions, do their efforts amount to an assertion of Native self-determination… or an acceptance of “domestic, dependent” status?

When John Marshall wrote the opinion in Johnson v. McIntosh (1823)—the original U.S. Supreme Court federal Indian law decision—he said the relations between the “discoverers” and the Indigenous peoples were “regulated” by the “discoverers.”
He wrote, “In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired… by the original fundamental principle, that discovery gave exclusive title to those who made it.”

Federal Indian law thus provides a mechanism for “regulating” relations between the Original Peoples and their “discoverers” in such a way as to preserve the superior legal position of the latter. No matter how often an Indian lawyer or politician embraces the “special” relationship established by federal Indian law, that “specialness” consists of a structure of colonial subjugation of “the original inhabitants.”

So long as federal Indian law maintains this “special relationship,” Native peoples will be in a position of not being “entirely disregarded,” but with their rights of self-government considerably “impaired.”

So, to repeat the question, what does it mean when Native people participate in American political processes?
John Marshall discussed the possibility that colonizers and Natives might one day “mingle with each other; the distinction between them … gradually lost, and they make one people.” But, he wrote, such “incorporation” of American Indians and the colonizers was not “practicable,” because “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.”

In other words, the U.S. Supreme Court provided a system by which self-governing, independent Native Peoples could be constrained, subjugated, neutralized by law—the “Doctrine of Christian Discovery.” The ruling in Johnson v. McIntosh still stands. It has been cited in more than 300 cases since 1823.

Despite the fact that federal Indian law subjugates Native sovereignty, many Native people hail the “protection” the law offers—protection from states and third parties.

Set aside for the moment the fact that the U.S. Supreme Court continues to whittle down this “protection”—allowing states to exercise sovereignty over Indians and Indian lands in a variety of cases. Focus on the primary point: federal Indian law offers Native Peoples no “protection” from the federal government—the U.S. itself.

U.S. courts have ruled that the Indian “right of occupancy”—”aboriginal title”—does not involve a treaty relationship. Therefore, the courts say, the U.S. can deny Indian title as it sees fit. “Indian removal” and “termination” are watchwords for U.S. destruction of Indian Nations.

The courts have repeatedly emphasized what they call the “plenary power” of the U.S. Congress to do as it wishes with Indians and Indian lands. In this way, the “protection” of federal Indian law operates like a “protection racket”: the racketeers will protect you from everyone except themselves.

So, to return again to the question: what does the participation of Native people in American political processes mean?
Are Native participants providing a useful service to Indians, by restraining the exercise of federal power to destroy Indian Nations? Or are they acquiescing in that power? Are they guerrilla fighters, working behind enemy lines to quell the power of their adversary? Or collaborators with the enemy?

One way to answer these questions involves checking out the rhetoric of the parties. The 2016 Republican Platform says, “Our approach is to empower American Indians, through tribal self-determination and self-governance policies, to develop their greatest assets, human resources and the rich natural resources on their lands, without undue federal interference.”

The Democratic Platform says, “We will strengthen tribal sovereignty and tribal jurisdiction by enacting laws and policies that enhance the ability of Indian nations to govern their territories, keep their communities safe, and prosecute crimes committed on tribal lands.”

The party platforms sound good… until you remember that the key words—”tribal sovereignty” and “tribal self-determination”—are also code words for “domestic, dependent nations,” whose “rights to complete sovereignty, as independent nations, were necessarily diminished” by the Doctrine of Christian Discovery.

No political party in America has called for an end to the Doctrine that says the U.S. holds title to Native lands. No party platform calls for acknowledging that the “original inhabitants of the continent” still hold title to the lands.
Perhaps you will say this can never happen, because of the economic dependence of American Indians on the U.S. To that response, consider this: The U.S. itself—through its claim to ownership of Indian lands, aka “public lands,” remains dependent on the resources of those lands—directly and through arrangements with private developers.

The latest big example: “The Southeast Arizona Land Exchange and Conservation Act,” which mandates a “swap” of Native lands from the San Carlos Apache and other Indigenous Nations to Resolution Copper Company. U.S. Congressman Paul Gosar says this taking of Native lands “facilitates the development of an underground copper mine that will create thousands of American jobs, will reduce our dependence on foreign sources of energy and minerals, and will generate significant revenues for federal and state treasuries.”

The alleged “dependence” of Native Nations on the U.S. government thus actually involves “interdependence,” albeit an uncompensated U.S. dependence on Native lands through a “taking” of Indigenous resources, “protected” by the U.S. claim to be the “trustee” of the Indians.

The principles of George Orwell’s “double-think” and “Newspeak” operate at the core of political thinking about American Indians and lands.

Despite the absence of any American political party platform statements calling into question the fundamentals of federal Indian law, there are nevertheless some aspects of Native delegates’ efforts that may justify their roles at the conventions.

Consider the remarks of Minnesota State Representative Peggy Flanagan (White Earth) at the Democratic convention. For better or worse, Rep. Flanagan’s role as a state political figure already indicates a willingness to participate in governments descended from the colonizers. Her remarks included the following: “Your name [referring to her daughter] is not Pocahontas. It is Siobhan Ma’iingan, and you should never let anyone make you feel anything less than proud of who you are.”

Brave words, but how does the mother explain her participation in the political processes of governments whose powers are rooted in subjugation for which the U.S. Supreme Court found “excuse, if not justification, in the character and habits of the people whose rights have been wrested from them”—the “fierce savages”?

Rep. Flanagan added, “We are still here.” But which “we”? The “we” of Native Nations asserting independent sovereignty, or the “we” of Native individuals asserting personal dignity?

Does the participation of Native delegates signify reconciliation with the fact of colonization, dispossession, degradation, and plenary power? How can we “honor… our elders, show… gratitude to our warriors, [and] cherish… our children as gifts from the Creator,” and at the same time fail to challenge the fundamental Doctrine that dishonors the elders, exploits the warriors, and exposes the children to the ravages of a colonized life?

I single out Rep. Flanagan only because her words and her appearance at the Democratic convention were so widely celebrated. Her remarks call for analysis precisely because she said, “It means so much that we were invited to be here on the last night of the convention.”

To return to the question, “What does it mean?”

The governments of the United States and Israel share a common religious-political tradition, rooted in the story of the Family of Abraham. It undergirds their relations with the peoples who were there first. In the U.S., the Indians; in Israel, the Palestinians. We can explore how one government echoes the other.

A recent article by David Shulman in the New York Review of Books reviews what he calls “the finest Israeli documentary ever made about the occupation, ‘The Law in These Parts.'” Shulman holds the Renee Lang Professorship of Humanistic Studies at the Hebrew University of Jerusalem and participates in Ta’ayush, an activist Arab-Jewish Partnership organization. Ta’ayush works with Palestinian farmers and landowners to defend their homes, fields, and grazing grounds.

The documentary focuses on a group of jurists, legal advisers, and judges who sat in the military courts in the occupied Palestinian territories. In Shulman’s words, the film shows that “the legality of torture, mass arrests, prolonged administrative detention without trial, the violent suppression of civilian demonstrations, punitive house demolitions, severe restrictions on freedom of movement, and other practices … have become commonplace under Israeli rule.”

These themes and events—”the general, remorseless processes of dispossession and expulsion”— echo the history of violent dispossession of Native Peoples in the Americas, where destruction of Native communities were the hallmark of colonial invasion and ‘westward expansion.’

As Shulman explains, the appropriation of Palestinian land for Israeli “settlements” started with “ideologically motivated, religious settlers, who fairly quickly won government backing.” He points out, “Initially, when the question of the legality of this procedure came up before the Israeli Supreme Court [in 1979], the court … declared [it] illegal and forced the government to move the projected settlement to a nearby hill.”

The court’s ruling, however, was short-lived. As recounted by Eyal Press in another review of the Israeli documentary, “Just hours after the ruling was handed down,” the government began plotting how to get around the law.

The plot provided another echo of American colonialism. Where the American colonizers relied on 15th century Christian imperialism—the “doctrine of Christian discovery”—the Israelis borrowed a doctrine from the 19th century Ottoman Empire.
Ottoman law identified a category called “mawat”—”dead” land. It applied to lands outside a village that had not been cultivated for a period of years. The Israeli government argued that this law was still in force in Palestinian territories, and that such “dead” land could be appropriated by Israel.

The terminology of “dead land” again echoes Christian colonialism against Native Peoples in America, where the invaders who wanted to ‘legally’ appropriate land declared it “terra nullius”—Latin for “no one’s land.”

As soon as the Israeli government determined to use this old Ottoman doctrine, the military began flying helicopters over Palestinian lands, looking for areas that could be labeled “mawat” and seized by the state. Israeli occupiers streamed into these areas, building a string of new “settlements.”

When the new occupations were challenged by lawsuits, the Israeli Supreme Court changed its tune. It ruled that the Israeli state, as an occupying power, had discretion to dispose of the lands as it saw fit. Under this rule, the court regarded the Israeli state as the “custodian of enemy property,” with the implication—however far-fetched—that the Israelis were taking care of the land until it could be restored to its owners.

Here again, we find an echo of the American colonial invasion: the notion that the United States government is the “guardian” of the property of the Native Peoples. This doctrine supports the power of the government to do what it decides is best with the property, even where the original Peoples are still living on the land.

As Shulman says, “In the end, the law is only one delimited dimension of a pervasive political program.” But one important political consideration distinguishes the Israeli from the American colonial program: the question of citizenship. Whereas the United States government has frequently attempted to “assimilate” Native Peoples and has unilaterally declared them to be “citizens” of the U.S., the Israeli government has resisted citizenship status for Palestinians.

As Daniel J. Elazar explains, in his essay at the Jerusalem Center for Public Affairs, “Israel as a Jewish State,” “Formally, Israel is built on the modern European model of centralized, reified statehood. In contrast, the weight of the Jewish political tradition, while emphasizing the importance of political independence for Jewish survival and fulfillment, is directed against that conception of statehood.”

This means that the nature of Israeli citizenship presents serious obstacles to the “assimilation” of Palestinians. The issue boiled up in early May 2014, at an Israeli government cabinet meeting: Prime Minister Binyamin Netanyahu pushed for a change to Israel’s constitution—to affirm that Israel is “the nation state of one people only – the Jewish people – and of no other people.”

As reported in The Guardian, Netanyahu added that the civil rights of minorities, including Arabs, would be guaranteed. Civil rights are also recognized in the U.S., but, unlike Israel, the U.S. Constitution mandates a separation of state and religion. Despite this major difference between Israeli and American colonial programs, the fact remains that the foundations of the two systems are mirror images: state power rooted in religious and imperial colonial doctrines.

To add one more echo: In January 2012, Israel’s High Court rejected a challenge to Israeli mines in Palestinian territory, ruling that the occupation has gone on for so long that its legal status has “unique characteristics.” Compare this to the 2005 U.S. Supreme Court decision in City of Sherrill v. Oneida Indian Nation of N.Y., which held that the “longstanding, distinctly non-Indian character of central New York” made it impossible to enforce Oneida ownership of the lands.

In Israel as in the U.S., a colonial occupation of lands belonging to others has developed its own special rules to justify itself. This “justification,” however, is not the same as “justice.”