Why is Gorsuch randomly so liberal on Native American issues? (user search)
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  Why is Gorsuch randomly so liberal on Native American issues? (search mode)
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Author Topic: Why is Gorsuch randomly so liberal on Native American issues?  (Read 1637 times)
Skill and Chance
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« on: September 23, 2020, 02:21:04 PM »

Gorsuch is pretty sincere on his originalism "look at the text, ignore everything else" take on the law. One area that works out very well with is Native American law, where Native Americans signed a number of treaties the with the US Government which the US Government had no intention of honoring. Gorsuch just looks at the documents and take their findings literally.

Who knows, maybe the Cherokee Nation is dusting off the US government's 1835 promise that the Cherokee Nation gets an automatic seat in the US House of Representatives. If so, it'd be hilarious watching the government's lawyers just go "but...but...the Cherokee Nation doesn't even make up 1/435th of the US population! But we allocate House seats by state, not ethnic group! But this makes no sense at all!" and Gorsuch is all like "Treaty says House seat, tribe gets House seat.

I think that treaty was overruled directly by making all Natives Citizens of the US.

According to a professor of law at the University of Arkansas, the treaty has been "held to be in full force and in effect by federal courts within the last five years."

Very likely only 4 votes now to do aggressive stuff on tribal law though. 
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Skill and Chance
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Posts: 12,869
« Reply #1 on: September 24, 2020, 11:29:16 AM »

Gorsuch is pretty sincere on his originalism "look at the text, ignore everything else" take on the law. One area that works out very well with is Native American law, where Native Americans signed a number of treaties the with the US Government which the US Government had no intention of honoring. Gorsuch just looks at the documents and take their findings literally.

Who knows, maybe the Cherokee Nation is dusting off the US government's 1835 promise that the Cherokee Nation gets an automatic seat in the US House of Representatives. If so, it'd be hilarious watching the government's lawyers just go "but...but...the Cherokee Nation doesn't even make up 1/435th of the US population! But we allocate House seats by state, not ethnic group! But this makes no sense at all!" and Gorsuch is all like "Treaty says House seat, tribe gets House seat.

I think that treaty was overruled directly by making all Natives Citizens of the US.

According to a professor of law at the University of Arkansas, the treaty has been "held to be in full force and in effect by federal courts within the last five years."

Very likely only 4 votes now to do aggressive stuff on tribal law though. 

Even less. Most aggressive opinions on tribal rights are only signed by 2 people (Gorsuch and Sotomayor).

McGirt was pretty radical (though quitee correct IMO) and Gorsuch still got it to 5/4.
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