The New Yorker:

The Justice doesn’t just join with the liberals on the bench when it comes to tribal rights; he often seems to lead them.

By Amy Davidson Sorkin 

Last Thursday, in the case of Arizona et al. v. Navajo Nation et al., the Supreme Court dealt the tribe a serious blow. The case involved the future division of the waters of the Colorado River—an issue of existential concern to millions of people across seven Western states, including a hundred and seventy thousand who live on the Navajo reservation. The Colorado is drying up, because of drought and overuse, a situation that is inseparable from the climate crisis. In light of the coming fight over the river’s water, the Navajo had sued the Department of the Interior and other federal agencies, asking for an accounting of what rights to that water the government held in trust for the tribe, under an 1868 treaty, and for a plan to manage those rights. Arizona, Nevada, and Colorado then intervened in an attempt to block that process. Brett Kavanaugh wrote the majority opinion, joined by four other conservative Justices, which peremptorily turned the Navajo away—another chapter in an old, sad story. Neil Gorsuch wrote a dissent, joined by the three liberal Justices, which passionately vindicated the tribe’s rights. That lineup of Justices is part of a new, curious story of Gorsuch’s emergence as something of a legal champion for Native Americans.

Gorsuch, of course, is a conservative himself, and not a mild one. Donald Trump nominated him to the Court just eleven days after his own Inauguration; Mitch McConnell, who was then the Senate Majority Leader, had held the seat open after Justice Antonin Scalia died, nine months before the Presidential election. In most areas of law, notably those to do with guns and abortion, Gorsuch has been the Justice that conservatives wanted him to be. Not so with tribal law. Adam Liptak, of the Times, recently called him “the fiercest proponent of Native American rights” on the Court.

Go to link