Changing the federal judiciary: Calling for American Indian judges

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ALBUQUERQUE, N.M. - Only two-tenths of a percent or a total of three American Indian judges served at the federal level last year, according to the Judiciary Fair Employment Practices Annual Report.

Although 2,953 individuals have served as federal judges for the United States of America since 1789, It was not until 1994 when the first American Indian, Billy Michael Burrage, was appointed to the U.S. District Courts for the Northern, Eastern and Western Districts of Oklahoma in 1994. He resigned in 2001 to continue in private practice.

Both Republicans and Democrats claim they want the judiciary to look more like America. Native people represent 1.41 percent of the total U.S. population and if the Bush administration were to match statistics, another 19 judges should be serving on federal benches.

The Bush administration has a chance to realign those figures with a little help from Indian country.

Assistant U.S. Attorney Sam Winder, Southern Ute, is being considered for appointment to the federal bench in New Mexico. The National Indian Project on the Judiciary (NIPJ), an arm of the National Congress of American Indians' Sovereignty Protection Initiative, endorses Winder.

"Sam Winder is an excellent candidate. He's not only a Native American attorney, he's a conservative. He fits the bill that the president would be looking for," said Gregory Smith, a member of NIPJ and also an attorney with Johnston & Associates in Washington.

He said the project also endorses individuals who have an understanding and are generally supportive of tribal sovereignty.

"When you consider a place like New Mexico where there is a fair number of Native cases in the courts all the time, it becomes more compelling to go to the parties and nominate a Native American attorney," he said.

What is the importance of appointing an American Indian to a federal judgeship?

Several U.S. Supreme Court decisions have raised strong concern that the court is leaning toward removing tribal sovereignty and negating tribal jurisdiction.

Two cases are spotlighted: Nevada v. Hicks, where the court determined states had final jurisdictional authority over reservation Indians who violated state and federal laws, and Oliphant v. Suquamish Indian Tribe where tribal jurisdiction over non-Indians committing crimes on reservations was annulled.

The solution in the courts is getting Indians on the bench and convincing Congress to reverse those decisions corroding tribal sovereignty according to the National Congress of American Indians.

During a 2001 NCAI meeting tribal leaders reached consensus to mount an organized effort aimed at responding more forcefully to the erosion of tribal sovereignty by changing the face of the federal judiciary.

Supreme Court opinions on tribal sovereignty are based on the concept of "domestic dependent nations," a term coined by Chief Justice John Marshall in 1831, in a case between the Cherokee Nation and the state of Georgia. Marshall characterized the relationship of tribes to the United States as possessing attributes of sovereignty, yet are dependent on the protection of the United States.

"That phrase - we've spent the following 220 years trying to figure out what it means," said Smith.

"Many people looked to the Marshall decisions for support for tribal sovereignty, which is there, but I am of a slightly different school and I am somewhat troubled by those decisions because I think some of the doctrines that may have naturally developed from that are the very doctrines that are hurting us," he continued.

The Supreme Court is making what are called common law decisions, Smith explained: developing law through cases over the years. He feels what has been done to tribal sovereignty by recent Supreme Court rulings is subject to revocation by Congress, citing Duro v. Reina where judges ruled an Indian tribe has no inherent criminal jurisdiction over non-member Indians.

That decision was reversed by Congress in 1991.

"The ultimate decision maker is the Supreme Court and what they rule becomes the law of the land but they're all human beings," explained Smith.

"They're reading different things, going to conferences, all to provide information and training. A lot of them, when they're nominated, know nothing about Indian sovereignty and Indian tribes, so they're a blank slate upon which we would like to draw," he said.

Although NIJP is still assembling a board of directors and seeking financial resources, members have put together a map overlay of districts and tribes and complied and distributed a list of federal judicial vacancies.

After identifying potential candidates, NIJP members want to be part of a review process working with senators making recommendations to the president. Potential nominees often are recommended by senators or sometimes members of the House who are of the President's political party. The Senate Judiciary Committee normally conducts confirmation hearings for each nominee and when approved, judicial officers are appointed for a life term.

The NIJP also is planning an educational component targeting both houses of Congress about who tribes would like to see nominated.

"On a second front we want to educate people who have been nominated or even the judiciary itself, on the tribal perspective and scholarship of tribal sovereignty," said Smith.

The NIJP can be reached at (202) 659-8400.