Briggs: Question Mukasey about Indian law

Author:
Updated:
Original:

The nomination of Michael Mukasey to be the next attorney general of the United States has been widely hailed in media as a major Bush administration departure from recently departed ideologue-Attorney General Alberto Gonzales.

Political watchers have spent the weeks since the announcement puzzling out the 66-year-old's character from a handful of columns that he published in the New York newspapers, and mostly from his record as a federal judge in the U.S. District Court for the Southern District of New York, where he served from the time that Ronald Reagan was president until last year.

Mukasey is best known for presiding over the trials connected to the 1993 World Trade Center bombing. For years after those trials, he and his wife lived under the guard of U.S. Marshals.

In the post-Sept. 11 case of Jose Padilla, who President Bush declared to be an ''enemy combatant,'' Mukasey ruled that the government had the authority to make the declaration, but not to deny Padilla access to attorneys. Mukasey's Padilla finding is cited frequently as a sign of an independent streak from the current president.

Mukasey is also lauded as a law and order judge, who could bring the notion of justice back to the department that he is nominated to lead.

But a hole in Mukasey's likely knowledge of U.S. law is Indian law. Mukasey has made his career in a district that expelled its indigenous nations more than two centuries ago.

That Mukasey has no apparent connection to Indian country strangely makes him a better choice than heir apparent and former U.S. Solicitor General Theodore Olson, who currently represents a Canadian company that is trying to avoid responsibility for polluting the reservation of the Confederated Tribes of the Colville. Mukasey is also no Slade Gorton, the former senator known for his midnight riders aimed at undermining Indian nations that he tacked onto unrelated legislation. Bizarrely, the Seattle Times suggested him to the Bush White House in an editorial.

Yet Mukasey's apparent absence of experience makes it all the more critical that the Judiciary Committee of the U.S. Senate take the time to ask this nominee about his understanding of the legal relationship between the United States and Indian nations.

Questions related to Native America rarely, if ever, are asked of high-level nominations. But in the wake of Gonzales' firing of five U.S. attorneys who were leaders in prosecution of cases of Native lands, it is critical that the Judiciary Committee make a priority of finding out where Mukasey stands on Native issues.

''He and all these individual nominees need to articulate an Indian policy,'' said Chief Harry Wallace of the Unkechaug Nation. ''They need to be called on that.''

The Unkechaug Nation's Poospatuck Reservation is located on Long Island, and in a different federal court district than Mukasey served. But like most leaders of Indian nations, Wallace has had to become a court-watcher. Besides, unlike most of Native America, Wallace is in the local news area of Mukasey's longtime federal district.

Yet putting Indian issues on the Judiciary Committee's plate could take the intervention from tribes located in the states that senators on the Judiciary Committee represent. These include Wisconsin, where on the Democrat side both senators are on the committee, and also on the Republican side by senators from Utah, Arizona, Kansas and Oklahoma.

''The attorney general has lots of constituents,'' said Kevin Washburn, Oneida Nation Visiting Associate Professor of Law at the Harvard Law School. ''Indian tribes are only one constituent. Everybody has sharp elbows. Everybody wants to get their issues on the agenda. It would be a success if there were even one question.''

Mukasey's dance card will quickly fill with questions about his stand on civil liberties and his defense of the Patriot Act. But no one should forget that the wrongful dismissal of some if not all of the eight U.S. attorneys fired last December is what brought Mukasey to the fore.

The connection of these firing to Indian country is little known outside of Indian country.

To talk about the connection to legal scholars, Washburn said, is to invite raised eyebrows and murmurs of conspiracy theorist.

Still, that controversy - exposed by three of the five former U.S. attorneys at the midyear conference of the National Congress of the American Indian - may be the thing that elevates Indian issues to the Judiciary Committee's sights.

It is critical because the Department of Justice is one of the key federal arenas in which the United States carries out its trust responsibility to Indian nations.

Federal agents and prosecutors are the front line of defense on Indian lands against felonious, violent crimes. The department also plays a critical role in filing lawsuits with and for tribes against states that would interfere with the practice of treaty-affirmed rights. If Indian country is going to get control of the epidemic of violence against women and girls, then it will need a Justice Department ready to work hand in hand.

With the Bush administration winding down, already key appointees are leaving. One of the recent resignations came from Assistant Attorney General Regina Scofield.

Since 2005, Scofield has shown herself willing to work with Indian country, including learning about what government-to-government relationship really means, said Juana Majel-Dixon, a leader in the Pauma Band of Mission Indians, and secretary of the NCAI. Scofield, Majel-Dixon said, was uniquely present in Indian country, as tribes figured out how to deal legislation concerning sexual violence on Indian lands.

Her departure makes the awareness of the next attorney general to Indian country all the more critical.

The Senate Judiciary Committee does not need to rush Mukasey's nomination hearing. It would be better to ignore the Oct. 8 deadline for the hearing that President Bush arbitrarily set, and take the time to investigate and consider all aspects of this complex nominee.

The questions posed to him must include ones about the unique relationship between the U.S. Department of Justice and Native America.

Kara Briggs, Yakama, is associate director of the American Indian Policy & Media Initiative of Buffalo State College and a columnist for Indian Country Today. She leaves at the Tulalip reservation in Washington state.