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Justice Neil Gorsuch issued a vigorous dissent in favor of Native American water rights Thursday. If you’ve only been paying attention to some of the headlining cases at the Supreme Court, that might sound surprising. But it’s only the latest such writing from Gorsuch, a Donald Trump appointee who has joined his fellow Republican jurists to crush rights in other contexts such as abortion, yet has become a leading voice on the court for tribal sovereignty.
Fellow Trump appointee Brett Kavanaugh’s 5-4 majority opinion against the Navajo Nation was only 13 pages. Gorsuch’s dissent, meanwhile, spanned 27 pages that included, among other things, what he called “context the Court’s opinion neglects.” Kavanaugh’s opinion, throwing out the tribe’s lawsuit against the federal government, said a treaty establishing the Navajo reservation didn’t require the federal government to take "affirmative steps" to secure water for the tribe.
Yet the majority wasn’t even answering the right question, Gorsuch complained in dissent. “Respectfully, the relief the Tribe seeks is far more modest,” he wrote for himself and the three Democratic-appointed justices. The tribe’s “simple ask,” Gorsuch explained, was for the government to identify the water rights it holds for them, and, if the United States has misappropriated these rights, to formulate a plan to stop doing so.
The justice wrote that the tribe's efforts to find the answer to that simple question, and the ensuing run-around from the federal government, “have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles.” Noting the possibility of the Navajo nonetheless succeeding in future litigation on the subject, Gorsuch closed with a hopeful plea that “some measure of justice will prevail in the end.”
His writing didn’t come as a surprise to tribal interests who supported the 2017 nomination of the Trump appointee — a jurist who has exhibited a deep understanding of and sympathy for Native American claims. Gorsuch previously sat on the 10th U.S. Circuit Court of Appeals, which is based in the West and fields Native American law disputes that other justices might not have as much of a grasp on.
To be sure, this isn't part of some broader liberal awakening for Gorsuch, who has split with the Democratic appointees in other important cases and will likely continue to do so as the term comes to a close.
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