On Tuesday, Gorsuch split from his conservative colleagues, siding with the court's more liberal members in a case involving the Yakama Tribe and its right under an 1855 treaty to travel the public roads without being taxed on the goods brought to the reservation.
Not only did he provide the decisive fifth vote in the case, he wrote an important concurring opinion for himself and Justice Ruth Bader Ginsburg, the leader of the court's liberal wing.
President Trump’s two appointees to the U.S. Supreme Court -- Neil Gorsuch and Brett Kavanaugh -- were expected to help bring about a "conservative revolution” on the nation’s highest court. But in two out of three rulings by the court Tuesday, Gorsuch and Kavanaugh found themselves on opposing sides.
The two cases in which the justices did not agree involved an Indian tribe and Washington state taxes, and another involving maritime law.
Yakama Nation Chairman JoDe Goudy welcomed the ruling. In a statement cited by NW News Network, he wrote: “Today marks a decision that reinforces the Yakama way of life, both in historical context as well as modern interpretation."
Gorsuch explains his ruling:
Gorsuch wrote in his dissent that manufacturers "are at risk of being held responsible retrospectively for failing to warn about other people's products."
The Yakamas certainly were aware by the time of the treaty that they were probably going to lose their lands. But the record also shows that to the Yakamas, their land was "worth far more than an abject promise they would not be made prisoners on their reservations," said Gorsuch.
In fact, the lands ceded under the treaty "were a prize the United States desperately wanted." U.S. officials were under tremendous pressure to strike a deal because the Yakamas’ lands were essential to the settlement of the Washington territory.
"Settlers were flooding into the Pacific Northwest and building homesteads without any assurance of lawful title," Gorsuch recounted. Therefore, obtaining the Indian lands East of the Cascades was "a central objective" for the U.S. government. "The Yakamas knew all this and could see the writing on the wall." They expected that they would lose their lands, so they needed to "extract from the negotiations the simple right to take their goods freely to and from market on the public highways," Gorsuch said.
"It was a price the United States was more than willing to pay" and "by any measure it was a bargain-basement deal," he added.
In exchange the tribe got "the right to move goods freely to and from market using those highways," without having to pay a tax or licensing fees on those goods, a right they had enjoyed already for countless generations. The only thing the U.S. government promised was "not to impose a tax or toll on tribal members or their goods as they pass to and from market."
The government does have the option to negotiate for more if it would like to, Gorsuch said, but it "does not get to rewrite the existing bargain in this court."
