I meant what I said, and I said what I meant. An elephant’s faithful, one hundred percent! 

—Dr. Seuss, Horton Hatches the Egg

Introduction

This Comment seeks to defend Justice Neil Gorsuch’s approach to statutory interpretation, arguing against pragmatist efforts to reduce the Supreme Court’s reliance on textualism and against efforts by fellow self-proclaimed textualists to discredit Justice Gorsuch’s highly literal approach. Through careful study of Justice Gorsuch’s opinion for the Court in McGirt v. Oklahoma, as well as his dissenting opinion in Oklahoma v. Castro-Huerta, this Comment argues that Justice Gorsuch has come to serve as an ally to Native communities by defending the sovereignty to which they are textually entitled by statute and under treaties duly concluded between them and the federal government. While all interpretive methodologies suffer from imperfections, Justice Gorsuch’s approach to textualism is the best way to require the federal and state governments to respect tribal sovereignty and honor the commitments the United States has made to tribes throughout the course of their unique political relationship.

I. What is Textualism? 

Few interpretive methodologies in the law are as misunderstood as textualism. Although some originalists in matters of constitutional interpretation describe themselves as textualists, 1Open this footnote Close this footnote 1 See, e.g., Ralph A. Rossum, The Textualist Jurisprudence of Justice Scalia, Claremont McKenna Coll., https://perma.cc/EB2B-C6KN (archived Apr. 29, 2025). …Open this footnote Close the textualism this Comment discusses instead focuses on adherence to the text when interpreting treaties and statutes. 2Open this footnote Close this footnote 2 See, e.g., James Burling, What Is the Difference Between Originalism vs. Textualism vs. Living Constitutionalism?, Pac. Legal Found., https://perma.cc/BS4X-AFRX. …Open this footnote Close Textualism arises from the age-old question of what the law really means, and it seeks to answer that question by declaring, “the law means what it says.” This approach may seem unhelpful—perhaps even tautological—at first blush. After all, a significant portion of the doubt over what the law means may be best described as doubt over what it says in the first place. But the law does not exist to be convenient or to be easily applied. It exists to be applied consistently and fairly, so that the rule of law binds everyone in equal measure, with equal force, and with everyone given notice of what the rules are and the opportunity to be heard if they are accused of breaking those rules. 3Open this footnote Close this footnote 3 See, e.g., Cass R. Sunstein, The Rule of Law, 2024 Am. J.L. & Equal. 498, 499 (arguing that “fair notice” of the laws is essential so that “people need not guess about their meaning”). …Open this footnote Close Committing to the principle that the law means what it says, despite contrary pragmatic concerns or anticipated applications of the law, separates textualism from other interpretive methodologies.

Justice Gorsuch’s approach to this principle has at times diverged from that of his other colleagues appointed by Republican presidents. In Bostock v. Clayton County, the Court grappled with the question of whether Title VII, which prohibits certain forms of discrimination in employment, applies to discrimination against employees on the basis of homosexuality or transgender identity. 4Open this footnote Close this footnote 4 140 S. Ct. 1731, 1737 (2020). …Open this footnote Close The text of Title VII prohibits employment discrimination “because of [an employee or prospective employee’s] race, color, religion, sex, or national origin.” 5Open this footnote Close this footnote 5 Id. at 1738 (quoting 42 U.S.C. § 2000e–2(a)(1)). …Open this footnote Close The Court in Bostock agreed with the petitioners that if an employer would allow a biologically male employee to date a woman or dress in male-presenting attire, it would constitute sex discrimination to prohibit a biologically female employee from dating a woman or dressing in male-presenting attire. 6Open this footnote Close this footnote 6 Id. at 1741. …Open this footnote Close Note the strong parallel to interracial marriage; in Loving v. Virginia, the Court held that state anti-miscegenation laws were unconstitutional racial discrimination. 7Open this footnote Close this footnote 7 388 U.S. 1, 2 (1967). …Open this footnote Close The reasoning is the same: If a European-American individual can marry another European-American individual, but an African-American individual cannot marry a European-American individual, then the African-American individual is being discriminated against on the basis of race. Following this argument to its logical conclusion, Justice Gorsuch wrote for a majority of the Court (consisting of himself, Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan) that Title VII does indeed prohibit discrimination against individuals who date individuals of their same sex or transition to a gender expression not matching their biological sex. 8Open this footnote Close this footnote 8 Bostock, 140 S. Ct. at 1741-42. …Open this footnote Close

The Bostock decision sent shockwaves through the conservative legal world, prompting backlash against the argument laid out in the previous paragraph. Justice Brett Kavanaugh wrote a dissent likening the majority opinion to “a pirate ship” that “sails under a textualist flag.” 9Open this footnote Close this footnote 9 Id. at 1755-56 (Kavanaugh, J., dissenting). …Open this footnote Close Justice Kavanaugh argued that, “[i]f every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.” 10Open this footnote Close this footnote 10 Id. …Open this footnote Close It is similarly possible (though debatable) 11Open this footnote Close this footnote 11 See David Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause, 42 Hastings Con. L.Q. 213, 215 (2015). …Open this footnote Close that no member of American society alive at the time the Fourteenth Amendment was passed expected its Equal Protection Clause to prohibit states from enforcing anti-miscegenation laws. But just as the text of equal protection demands an equal right to marry an individual of a given race, the text of Title VII demands that employers respect employees’ equal right to date a person of a given sex irrespective of the employee’s own sex and to dress in a way that would be acceptable to the employer for one sex even if the employee’s own sex is different.

Justice Gorsuch’s words near the beginning of his opinion in Bostock supply the best argument for this position:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. 12Open this footnote Close this footnote 12 Bostock, 140 S. Ct. at 1737. …Open this footnote Close

Whether Justice Gorsuch’s fellow signers of the majority opinion truly agreed with this reasoning is unknown; Justice Breyer’s pragmatism contrasts sharply with this approach, making his decision to join the Court’s opinion difficult to explain except as an expression of his preferred outcome. 13Open this footnote Close this footnote 13 Breyer’s disdain for textualism is best explained in his books. See, e.g., Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism xvii, xx (2024). …Open this footnote Close Nevertheless, Bostock remains good law at the time of this Comment’s publication.

This Comment’s central purpose is not to defend Justice Gorsuch’s decision in Bostock. But Bostock sets out an important premise: Neither “original expected application” (i.e., how the drafters of a statute foresaw it working in the real world) nor consideration of a legal rule’s consequences belongs in a proper textual assessment of what words mean. If the purpose of textualism is to have a fixed law that is changed only by passing new laws, that fixed law will invariably apply in new (and sometimes inconvenient) ways to new phenomena. 14Open this footnote Close this footnote 14 See, e.g., Kyllo v. United States, 533 U.S. 27, 34 (2001) (holding that a search occurred when law enforcement used a thermal imaging device to discover marijuana grow lamps in a home because the Fourth Amendment protects “that degree of privacy against government that existed when the Fourth Amendment was adopted”); District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (“Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (citations omitted)). …Open this footnote Close A court can distort meaning by adding in modern pragmatic concerns or by clinging to a previous generation’s expectations, but to do so would be to depart from the pure text. Dred Scott v. Sandford illustrates the perils of original expected application, 15Open this footnote Close this footnote 15 60 U.S. 393, 423 (1856) (finding that freed African-Americans could not hold the rights of citizenship because “these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution”). …Open this footnote Close and Korematsu v. United States illustrates the perils of pragmatism. 16Open this footnote Close this footnote 16 323 U.S. 214, 223 (1944) (upholding the expulsion of Japanese-Americans from the West Coast on the ground that the petitioner, Fred Korematsu, “was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures,[ and] because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily”). …Open this footnote Close If courts seek to avoid those two disreputable decisions in the future, they should chart a course that follows the plain meaning of the text.

It is further worth noting that there exists yet another major alternative to textualism, pragmatism, and original expected application: purposivism. Purposivism instructs that courts should read a statute with an eye toward what the legislature hoped it would achieve, then read the statute in light of what meaning the legislature was likely trying to capture in the text to advance that purpose. 17Open this footnote Close this footnote 17 See, e.g., HLS News Staff, Are We All Purposivists Now?, Harv. L. Today (Apr. 3, 2025), perma.cc/C8G9-39J7. …Open this footnote Close This approach is an appealing one, but it can degrade into original expected application (when a judge concludes that the purpose of a statute could not have been to reach an outcome which, ostensibly, nobody at the time of drafting would have expected). 18Open this footnote Close this footnote 18 See id. (quoting Judge Rachel Kovner’s observation that purposivism may involve “relying on an inference about how Congress would sensibly have intended to reach as a substantive matter.”). …Open this footnote Close Conversely, taking a broad view of “purpose” can turn a purposivist analysis into pragmatism (when judges look to consequences to determine whether the purpose of a statute is fulfilled). 19Open this footnote Close this footnote 19 See Richard A. Posner, Pragmatism Versus Purposivism in First Amendment Analysis, 54 Stan. L. Rev. 737, 745 (2002) (“We often and rationally infer the probable consequences of an action from evidence of a desire by the actor to produce them.”). Intuitively, if the purpose is treated simply as a desire to achieve a certain policy objective, a court may end up effectively doing a pragmatist analysis of a statute while proceeding in the name of purposivism. …Open this footnote Close Because of these complications, this Comment does not grapple further with purposivism except as part of its broader criticism of non-textualist methodologies. It is nevertheless helpful to be aware that purposivism exists as an additional proposed method of textual interpretation.

II. Applying Textualism to Tribes

Justice Gorsuch’s time on the Supreme Court since his confirmation in 2017 has been marked by his steadfast refusal to erode the statutory protections for tribal nations in the United States. Gorsuch joined the Court at a time when existing precedent made respect for tribal sovereignty—even when explicitly countenanced in the text—an uphill battle. Most strikingly, the Court acknowledged in Solem v. Bartlett that it had for decades applied a pragmatist analysis to the question of reservation diminishment:

On a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land act diminished a reservation. Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred. 20Open this footnote Close this footnote 20 465 U.S. 463, 471 (1984) (citations omitted). …Open this footnote Close

The Court doubled down on its pragmatic consideration of reservation demographics in two subsequent cases, Hagen v. Utah 21Open this footnote Close this footnote 21 510 U.S. 399, 411-21 (1994). …Open this footnote Close and South Dakota v. Yankton Sioux Tribe. 22Open this footnote Close this footnote 22 522 U.S. 329, 356-57 (1998). …Open this footnote Close The Court returned to purer textualism in Nebraska v. Parker, 23Open this footnote Close this footnote 23 577 U.S. 481, 487-88, 490 (2016). …Open this footnote Close but that decision nevertheless kept Solem, Hagen, and Yankton alive. 24Open this footnote Close this footnote 24 Id. at 488 (“Under our precedents, we also ‘examine all the circumstances surrounding the opening of a reservation.’” (quoting Hagen, 510 U.S. at 412)). …Open this footnote Close Upon joining the Court, Justice Gorsuch had his work cut out for him to restore textualism to matters of Indian law.

Though two previous cases had showcased Justice Gorsuch’s commitment to a version of textualism that would respect tribal sovereignty, 25Open this footnote Close this footnote 25 Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1651-55 (2018); Washington State Dep’t. of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1016-18 (2019) (Gorsuch, J., concurring). Note that Gorsuch’s concurrence in the latter case explicitly appeals to textualist reasoning: “[T]oday and to its credit, the Court holds the parties to the terms of their deal.” Cougar Den, 139 S. Ct. at 1021. …Open this footnote Close the crown jewel of his work to shift the Court’s Indian law jurisprudence was McGirt v. Oklahoma. 26Open this footnote Close this footnote 26 140 S. Ct. 2452 (2020). …Open this footnote Close Justice Gorsuch wrote the Opinion of the Court, joined by his more liberal peers: Justices Breyer, Ginsburg, Sotomayor, and Kagan. In a strongly worded opinion, Justice Gorsuch insisted that the Court’s proper role was to “hold the government to its word.” 27Open this footnote Close this footnote 27 Id. at 2459. …Open this footnote Close In this case, its word was a treaty between the United States and the Muscogee (Creek) Nation dating back to 1832. 28Open this footnote Close this footnote 28 Id. …Open this footnote Close That treaty, coupled with others made between the United States and neighboring Native communities like the Cherokee and Choctaw, set aside the land within specified boundaries for tribal use and guaranteed that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 29Open this footnote Close this footnote 29 Id. …Open this footnote Close Since only Congress had the authority to take these lands away from their Native sovereigns, and since Congress had never done so, the Court ruled that the lands remained under tribal sovereignty despite the fact that the State of Oklahoma had ignored this sovereignty for decades. 30Open this footnote Close this footnote 30 Id. at 2482. …Open this footnote Close

The chief practical impact of the Court’s decision in McGirt was to require the transfer and reevaluation of a massive number of cases in which the State of Oklahoma, as in McGirt’s individual case, had prosecuted enrolled tribal members for crimes committed on tribal land, a power which federal law denies to the states and reserves for the tribes and federal government instead. 31Open this footnote Close this footnote 31 See id. at 2500-01 (Roberts, J., dissenting) (“Most immediately, the Court’s decision draws into question thousands of convictions obtained by the State for crimes involving Indian defendants or Indian victims across several decades. This includes convictions for serious crimes such as murder, rape, kidnapping, and maiming. Such convictions are now subject to jurisdictional challenges, leading to the potential release of numerous individuals found guilty under state law of the most grievous offenses. Although the federal government may be able to reprosecute some of these crimes, it may lack the resources to reprosecute all of them, and the odds of convicting again are hampered by the passage of time, stale evidence, fading memories, and dead witnesses.”); but see Pub. L. No. 280, 67 Stat. 588, (1953) (codified at 18 U.S.C. § 1162, 28 U.S.C. § 1360, and 25 U.S.C. §§ 1321-26), which grants jurisdiction over these crimes to certain states other than Oklahoma. …Open this footnote Close The post-McGirt requirement of sending cases out of the state system and into the federal system was, of course, highly inconvenient for the State of Oklahoma. That fact brought out the inner pragmatists in the ostensibly textualist wing of the Supreme Court. In a dissent joined by Justices Alito, Kavanaugh, and Thomas, Chief Justice Roberts wrote with concern for these practical effects: “Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.” 32Open this footnote Close this footnote 32 McGirt, 140 S. Ct at 2482 (Roberts, J., dissenting). …Open this footnote Close If the law were merely an invitation for courts to legislate, the dissenters would have a valid point. But it is Justice Gorsuch who shows commitment to Justice Antonin Scalia’s famous instruction that the law is an invitation for courts to interpret text, not to legislate. 33Open this footnote Close this footnote 33 Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989) (“If the Constitution were not that sort of a ‘law,’ but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature?”) …Open this footnote Close

McGirt also marks the Court’s transition from a weak form of textualism that invites extrinsic evidence to a strong form of textualism that prizes the text above all else, even when the resulting consequences pose significant implementation problems. 34Open this footnote Close this footnote 34 See Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. U. L. Rev. 963, 1000 (2022) (arguing that the Court’s prior textualism treated tribes as caged “canaries,” while its more recent textualist jurisprudence treats tribes as humble but intrepid “muskrats” because of its renewed focus on pure text). …Open this footnote Close State police and prosecutors have complained that McGirt’s implementation has the potential to create chaos for the State of Oklahoma and that the decision vastly changed the century-old status quo. 35Open this footnote Close this footnote 35 See, e.g., Molly Young, McGirt v. Oklahoma, 3 years later: How police work on the Muscogee Nation reservation, The Muscogee Nation (July 9, 2023, 6:00 AM), perma.cc/QV5N-86H3 (acknowledging the difficulty of implementation but celebrating greater tribal engagement in keeping communities safe). …Open this footnote Close But whether this seismic shift is worthwhile is a decision for Congress, not the Courts. As Justice Gorsuch noted, “History shows that Congress knows how to withdraw a reservation when it can muster the will.” 36Open this footnote Close this footnote 36 McGirt, 140 S. Ct. at 2462. …Open this footnote Close Gorsuch’s refusal to consider pragmatism or original expected application shows his dedication to the purest form of textualism.

This textualist view of federal Indian law suffered a major setback in 2022. That year, the Supreme Court decided Oklahoma v. Castro-Huerta, holding that the State of Oklahoma could prosecute non-Native criminal defendants for crimes committed on Native land. 37Open this footnote Close this footnote 37 142 S. Ct. 2486, 2491 (2022). …Open this footnote Close In an opinion by Justice Kavanaugh, the Court lamented the State of Oklahoma’s difficulties in the wake of McGirt:

The Oklahoma courts have reversed numerous state convictions on that same jurisdictional ground [as in McGirt]. After having their state convictions reversed, some non-Indian criminals have received lighter sentences in plea deals negotiated with the Federal Government. Others have simply gone free. Going forward, the State estimates that it will have to transfer prosecutorial responsibility for more than 18,000 cases per year to the Federal and Tribal Governments. All of this has created a significant challenge for the Federal Government and for the people of Oklahoma. At the end of fiscal year 2021, the U.S. Department of Justice was opening only 22% and 31% of all felony referrals in the Eastern and Northern Districts of Oklahoma. And the Department recently acknowledged that “many people may not be held accountable for their criminal conduct due to resource constraints.” 38Open this footnote Close this footnote 38 Id. at 2492 (quoting Dept. of Justice, U.S. Attorneys, Fiscal Year 2023 Congressional Justification 46). …Open this footnote Close

The reader should take note that this paragraph says nothing at all about whether McGirt was correctly decided, properly reasoned, or rooted in an accurate assessment of the underlying law. The paragraph instead complains that applying the law has led to ostensibly negative consequences. 39Open this footnote Close this footnote 39 Kavanaugh frames this language as grounds for the Court’s decision to grant certiorari rather than as the basis for its decision. Nevertheless, a textualist might argue that such pragmatic factors are as irrelevant to grants of certiorari (which are governed by the text of 28 U.S.C. §§ 1251-60, no part of which instructs the Court to consider the alleged pragmatic importance of a case) as they are to proper interpretation of the substance of a statute or treaty. …Open this footnote Close Be that as it may, remedying the difficulty of applying the law is a quintessential “invitation” to the legislature and not to the courts, as Justice Scalia described. Elected representatives in the federal and state governments can change the law to make it easier to apply. Courts, on the other hand, may only explain what the law is and how it does apply—whether or not that is how it should apply—to any given set of facts. 40Open this footnote Close this footnote 40 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (“It is emphatically the province and duty of the judicial department to say what the law is.”). …Open this footnote Close

Justice Gorsuch responded to this decision with a fiery dissent invoking fundamental Constitutional principles about the role of the federal government in safeguarding tribal sovereignty. Relying heavily on Worcester v. Georgia and the 1835 Treaty of New Echota, his dissent argued that “Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.” 41Open this footnote Close this footnote 41 Castro-Huerta, 142 S. Ct. at 2505 (Gorsuch, J., dissenting). …Open this footnote Close Again, Gorsuch’s words reflect a deep, abiding commitment to the principle that the law’s meaning cannot admit of practical considerations or social biases but instead must apply to the public at large: “Worcester proved that, even in the ‘[c]ourts of the conqueror,’ the rule of law meant something.” 42Open this footnote Close this footnote 42 Id. (quoting Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 588 (1823)). …Open this footnote Close Despite the setback of Castro-Huerta, Gorsuch has kept his zeal for Native sovereignty alive, including with his concurrence in the landmark case Haaland v. Brackeen, which affirmed the constitutionality of the Indian Child Welfare Act. 43Open this footnote Close this footnote 43 143 S. Ct. 1609, 1641-61 (2023). …Open this footnote Close

There are, of course, more cases to be had in the future, and only time will tell how they will turn out. One key issue remains on the horizon: The Treaty of New Echota entitles the Cherokee Nation to a delegate in the House of Representatives, but the House has not seated the Nation’s chosen representative, Kimberly Teehee, despite the Nation’s repeated attempts to secure her spot. 44Open this footnote Close this footnote 44 .Mainon A. Schwartz et al., Cong. Rsch. Serv., R47190, Legal and Procedural Issues Related to Seating a Cherokee Nation Delegate in the House 1 (2022). …Open this footnote Close Other treaties may contain provisions that have gone unenforced for even longer. Given the current composition of the Court and potential changes in its membership in the coming years, it is difficult to predict the likely path of Native law in the rest of the twenty-first century. But Justice Gorsuch is poised to continue insisting that old expectations and new realities are no reason to abandon the law. As he said in McGirt, “it’s no matter how many other promises to a tribe the federal government has already broken. If Congress wishes to break the promise of a reservation, it must say so.” 45Open this footnote Close this footnote 45 McGirt, 140 S. Ct. at 2462. …Open this footnote Close

Conclusion

Following the law is not as easy as it may sound. The law is complex, sometimes unclear, and often very old. 46Open this footnote Close this footnote 46 See, e.g., United States v. Marchant, 25 U.S. (12 Wheat.) 480, 481-85 (1827) (requiring the courts of the United States to apply the common law in federal criminal cases and referencing several authorities from the early common law in England). …Open this footnote Close But the difficulty of applying the law is a reason to demand good judging, not to give up on the project of the rule of law. For Native tribes, the law can be a key shield against potential abuses of power by state governments. The Framers’ presence of mind to defend federal authority in the area of Native provides tribes a key resource to declare that their sovereignty has never been extinguished—and to have this argument prevail in court.

Justice Gorsuch, for his part, may well continue to receive criticism from both pragmatists and those who deride his approach as “pirate” textualism. His consistent defense of tribal sovereignty has earned plenty of opposition. 47Open this footnote Close this footnote 47 See Castro-Huerta, 142 S. Ct. at 2504 (“From start to finish, [Gorsuch’s] dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be.”) …Open this footnote Close But Supreme Court jurisprudence is not a popularity contest, and over time, the Court tends to refine its reasoning and lay down clearer law for the future. 48Open this footnote Close this footnote 48 See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1923 (2024) (describing the Court’s Second Amendment doctrine’s progression from holding that there is an individual right to keep and bear arms, to holding that this right is incorporated against the states, to holding that there is a right to bear arms in public, to holding that there is not a right for individuals subject to certain domestic violence restraining orders to possess firearms). …Open this footnote Close Until then, it appears likely that Justice Gorsuch will continue to hold fast to his view of robust Native sovereignty under the law, sometimes writing for the majority, sometimes writing in dissent, but always writing according to what he believes to be the law.

The very first sentence of McGirt reads: “On the far end of the Trail of Tears was a promise.” 49Open this footnote Close this footnote 49 140 S. Ct. at 2559. …Open this footnote Close Put simply, the law consists of promises. There are promises to pay, promises to do things or refrain from doing things, and even promises to honor other promises. It is up to the Supreme Court to demonstrate that the United States, as a nation under the rule of law, is a nation that upholds its promises. Each promise kept is another step along the path toward rebuilding judicial—and social—respect for Native sovereignty.

* Juris Doctor candidate, Stanford Law School. I express my gratitude to Professors Jud Campbell, Elizabeth Reese, and Gregory Ablavsky for their helpful comments, Professor Jane Schacter for her insightful question, and Professor Dan Lewerenz for serving as my co-panelist at the Symposium. I also wish to thank my classmates Isaac Cui, Annelisa Kingsbury-Lee, and Ahnili Johnson-Jennings for their thoughtful feedback, their wealth of ideas about this subject, and, most of all, their friendship.