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We the People

Justice Gorsuch and Native American Law

We the People

National Constitution Center

News, News Commentary, History

4.61.1K Ratings

🗓️ 20 July 2023

⏱️ 61 minutes

🧾️ Download transcript

Summary

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) Questions or comments about the show? Email us at podcast@constitutioncenter.org.  Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.  Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.  You can find transcripts for each episode on the podcast pages in our Media Library.

Transcript

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0:00.0

At the end of the term the Supreme Court handed down two major decisions about Native American law.

0:06.0

In Arizona against Navajo Nation, the court ruled that a treaty didn't require the U.S. government to secure water for the Navajo Nation.

0:14.0

And in Holland versus Burkin,

0:16.2

the court upheld the Indian Child Welfare Act.

0:19.1

In this episode, we break down those decisions and dive more deeply into the opinions of Justice Gorsuch and his unique approach to how the Constitution applies to issues relating to Native American tribes.

0:34.0

Hello friends, I'm Jeffrey Rosen,

0:38.0

president and CEO of the National Constitution Center

0:41.0

and welcome to We The People,

0:42.0

a weekly show of constitutional debate.

0:44.8

The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase

0:49.2

awareness and understanding of the Constitution among the American people.

0:53.7

In this episode, I'm joined by two of America's leading Native American law experts.

1:00.0

Marsha Zug is Miles and Anne Lotholdt, Professor of Family Law at the University of South Carolina law school.

1:07.2

She has advised many organizations, including the National Indian Child Welfare Association

1:13.1

and the Southern Poverty Law Center

1:14.6

on issues involving Native Americans and immigrant families.

1:18.6

And her most recent book is Buying a bride

1:21.0

in engaging history of mail order matches.

1:24.1

Marsha, it is wonderful to welcome you to We The People.

1:27.1

Hi, thank you so much for having me.

1:29.8

And Tim Sandifer is Vice President for Legal Affairs at the Goldwater Institute's Sharf

1:34.4

Norton Center for Constitutional Litigation and he holds the Duncan chair in

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