Justice Gorsuch and Native American Law

This past term, the Supreme Court handed down two major decisions about Native American law. In Arizona v. Navajo Nation, the Court ruled 5-4 that a treaty did not require the U.S. Government to take affirmative steps to secure water for the Navajo Nation; and in Haaland v. Brackeen, the Court upheld the Indian Child Welfare Act (ICWA). In this episode, Native American law experts Professor Marcia Zug of the University of South Carolina Law School and Timothy Sandefur of the Goldwater Institute join to help unpack these key Native American law cases. They also dive more deeply into one specific member of the Court—Justice Neil Gorsuch—and his unique stance toward how the Constitution applies to issues relating to Native American tribes—from his dissent in Haaland, to his majority opinion in the McGirt v. Oklahoma case from 2020, and more. Host Jeffrey Rosen moderates. 

Resources:

• Arizona v. Navajo Nation (2023)
• Haaland v. Brackeen (2023)
• McGirt v. Oklahoma (2020)
• Marcia Zug, “ICWA’s Irony”, American Indian Law Review (2021)
• Tim Sandefur, Brief Amici Curiae of Goldwater Institute in Support of State of Texas and Brackeen, Haaland v. Brackeen
• Adam Liptak, “Justice Neil Gorsuch Is a Committed Defender of Tribal Rights”, The New York Times (June 15, 2023)
• John Dossett, “Justice Gorsuch and Federal Indian Law”, American Bar Association (Sept. 1, 2017)

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