TBD on Ning

American Indian Supreme Court push

by

Rob Capriccioso

Story Published: Apr 16, 2010

WASHINGTON – Justice John Paul Stevens’ retirement from the U.S. Supreme Court has some tribal legal advocates calling for an American Indian replacement.

Stevens, who announced April 9 he would retire in late June or early
July, has served on the court since 1975. A member of the court’s
liberal voting bloc, he slowly grew stronger on tribal issues, including
sovereignty, during his tenure, legal observers said. Still, the
consensus is, he had a long way to go.

“Justice Stevens’ record on Indian issues is a mixed bag,” said Chris
Stearns, a Navajo attorney for Hobbs Straus Dean & Walker and a
commissioner with the Seattle Human Rights Commission. “His 35-year
tenure on the court meant he was involved in some of the most
significant cases in Indian law history.

“He wrote the Supreme Court’s 1989 opinion affirming the Boldt decision
upholding Washington tribal fishing rights and rejecting the state of
Washington’s appeal led by then-Attorney General Slade Gorton. That case
remains one of the most profound recognition of the power of treaties.”

Stearns added that Stevens was “the lone voice of reason” on the court
during the controversial Carcieri decision of 2009, in which he argued
in favor of the Narragansett Tribe’s position.

On the other hand, Stearns noted that Stevens sometimes dissented
against tribal interests in cases favoring tribes, such as Cabazon,
which involved gaming, and Holyfield, which involved the Indian Child
Welfare Act.

Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center
at Michigan State University, expanded on Stevens’ anti-tribal
decisions, saying that his legacy in Indian law is “very, very bad.”

Fletcher said that Stevens was particularly tough in the area of federal
Indian law preemption cases, where all tribal taxation cases fit.

“During the 1970s and through the 1980s, the tax cases were hit and miss
because the court was unsure how to handle them. But in 1989’s Cotton
Petroleum case (authored by Stevens), the court placed the advantage
squarely with the states and local governments. From then on, the court
only took cases far out of step with its settled understanding. …”

Fletcher also believes Stevens would “have eviscerated tribal sovereign
immunity long ago,” since he often has argued against any form of
immunity, tribal, federal and state, for decades, to little or no avail.

Many Indian law experts believe the Supreme Court is weak on tribal
issues because it has never had any knowledgeable members of that field.

To remedy the situation, some Native American-focused organizations are
rallying for an Indian face on the bench. John Echohawk, director of the
Native American Rights Fund, has been floated as the most common name,
even receiving a nod in The Nation publication, which is influential in
some Washington circles.

Richard Guest, a legal expert with NARF, said officials with his
organization are soon to have a meeting with White House officials
regarding Echohawk’s qualifications, which range from tribal and federal
expertise to nonprofit and legal aid issues.

“We believe we have a strong case to share regarding John Echohawk – not
only because he is a strong Native American legal authority, but he
also has diversity of perspective.”

The National Native American Bar Association is also pushing for a
Native candidate, sending the White House a letter April 14 to make
that case.

“Our first goal is to try to get a Native person in there,” said Heather
Dawn Thompson, the immediate past president of the organization. “It’s
always a long shot, but we actually think we have as good a shot as
anyone else.”

Reasons for hope include a USA Today poll last year that indicated a
majority of American people saying they’d like to see an Indian
nominated to the court.

Plus, Thompson said the wide-ranging legal experience of Indian law
experts should be a factor.

“Every Native attorney is a constitutional scholar, by definition. In
this field, you just have to be a state and federal law expert. … every
single issue that could come up is addressed in this field.”

Fletcher took a hesitant view of the likelihood of a Native selection.

“Sadly (very, very sadly), John Echohawk (or any other American Indian,
or Indian law-focused practitioner) is definitely not a serious
contender. Most realistic possibilities for the Supreme Court nomination
are already federal or state judges in order to avoid the obvious
question, ‘What is the nominee’s judicial experience?’ And there simply
are not any American Indians on the federal bench, and only a small
handful on state appellate benches.”

The NNABA has long made the case that the absence of Indian federal
judges across the board needs to be remedied, especially since such
cases tend to disproportionately affect Native Americans.

Among the non-Indian names mentioned for the bench, none are notable on
Indian issues, and there is little consensus on who would be best in
terms of tribal affairs.

President Barack Obama is expected to make a decision on his selection
by summer. No matter the candidate, a tough confirmation battle is
expected in Congress, given the increased politicization in that body
lately.

American Indian Supreme Court push

American Indian Supreme Court push

by

Rob Capriccioso

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