U.S. Supreme Court Justice Neil Gorsuch stood by his support for Indigenous sovereignty during a Williamsburg visit on Saturday and encouraged young Native people to continue fighting for their communities.
“Build up those governments, make them strong, develop your economies, educate your kids,” Gorsuch said. “You know how to do it much better than I do, but I’ve got a lot of confidence.”
Gorsuch spoke at the Williamsburg Lodge in a day of panels about the history of tribal nations, the way their governments inspired the U.S. and the devastation they withstood after European colonization. The event was part of Virginia’s commemoration of the nation’s 250th anniversary, with representatives and leaders of several Native communities from around the country filling the room.
Gorsuch was sworn in during President Donald Trump’s first term in 2017. He issued opinions contrary to his conservative counterparts on several cases. Gorsuch, along with conservative colleagues Amy Coney Barrett and Chief Justice John Roberts, sided with the liberal minority on the court to strike down Trump’s tariffs on foreign imports earlier this year.
Gorsuch was the sole conservative to side with liberal justices in a 2020 case, for which he wrote the majority opinion, ruling that much of eastern Oklahoma falls under Tribal legal jurisdiction. The court has since narrowed that ruling, a decision Gorsuch criticized as acceding to an unlawful power grab by the state.
Speaking about the ruling on Saturday, Gorsuch said Muscogee Creek and other tribes’ treaties with the U.S. promised they would have self-governance on reservations in Oklahoma after being forced from their homeland in the Southeast in the 1830s. He said it’s a promise the U.S never formally voided.
“There’s a way for Congress to do that,” Gorsuch said. “Well, Congress, you know how to break a treaty — you want to do it, you do it; but don’t you dare ask me to do your dirty work for you.”
Treaties lay the groundwork for what’s called federal Indian law, an often nebulous corpus of statutes, executive orders, administrative policy and court cases that shape the legal reality of the 575 federally recognized tribes. Article VI of the Constitution places treaties as the supreme law of the land.
Gorsuch said, though, that treaties with Indigenous nations have repeatedly been ignored when they were politically or financially inconvenient for federal or state governments. He said the court began in the mid-1800s to allow governments to regulate tribes in ways he said were “antithetical to our Constitution.”
“Not only can states now interfere more, the federal government can do whatever it wants to do,” Gorsuch said. “Once that starts getting solidified in precedent, it becomes very hard to peel back.”
But recent wins should inspire hope for Native nations, Gorsuch said. In addition to the Oklahoma case, the court in 2023 upheld the Indian Child Welfare Act, which created a system for foster and adoption placements that kept Indigenous children in tribal households.
Gorsuch rejected opposition from states such as Texas and Louisiana, which argued ICWA is racially prejudiced, saying that view comes from misconceptions about history, federal treaties and the Constitution.
“So, Texas, your adoption laws, that’s nice, but there is a federal responsibility to deal with the tribes,” he said. “It had nothing to do with racism; it had to do with respecting the fact that, without doing so, you might wind up extinguishing the very nations that you are purporting to regulate commerce with.”
Gorsuch ended with optimism for the next generation of tribal governance. The U.S. hasn’t always lived up to the promises of the Declaration of Independence, he said, but the document holds truths that inspired progress.
“I’m incredibly hopeful when I meet young Native people who are equipping themselves to fight these fights,” Gorsuch said. “You’re doing all the right things, you don’t need my help; but I’d love to be able to look down 250 years from now to see what this gathering looks like.”
