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Courting Sotomayor

WASHINGTON – She grew up in poverty. She has diabetes. She has familial roots in a non-state with special rules of governance (Puerto Rico). She’s an underrepresented minority. She’s proud of her unique heritage.

She’s Sonia Sotomayor; President Barack Obama’s pick to replace retiring Justice David Souter to serve on the U.S. Supreme Court.

And some Native American legal advocates think all of the above qualities are some pretty good starting points to help her understand how much she has in common with many in Indian country.

“There’s probably a better chance to make a connection with her than with any justice in recent history,” said Richard Guest, a legal expert with the Native American Rights Fund.

“Tribes and Indian organizations should be getting ready to extend invitations and to educate her on our issues. The time is now.”

Many tribal legal experts note the Supreme Court has ruled exceptionally harshly on several tribal rights cases, especially in recent years. That reality, they say, is partially a result of not having a single justice on the high court of nine who truly understands Indian law and tribal sovereignty.

Associates of NARF, along with members of the National Native American Bar Association and other tribal and Native-focused legal experts, believe Sotomayor could be a force of understanding.

While she’s had very little exposure to federal Indian law, that might not be such a bad thing, say some legal officials who want the Supreme Court to start making better decisions for tribes.

According to a recent memo from NARF to tribal leaders and lawyers, “Sotomayor offers a fresh opportunity for Indian country to re-energize its efforts to slow and eventually reverse the erosion of tribal sovereignty by the court.”

The memo recommends that leaders in Indian country carefully consider expressing support for her confirmation, “perhaps exploring early opportunities for her to accept a role as their intellectual leader.”

The memo continues, “Once confirmed, Indian country can extend her an invitation to visit tribal courts, meet with tribal leaders and judges, and to observe first-hand the challenges confronting tribal governments.”

Matthew L.M. Fletcher, director of the Michigan State University Indigenous Law Center, agrees there are possibilities with Sotomayor, but for now, he thinks she would not be much more than a replacement vote for Souter – and his votes haven’t necessarily been sunshine and light for tribes.

“The only hope is educating the new justice,” Fletcher said. “I think tribal advocates need to keep doing what they’re doing – quality, if not excellent advocacy before the Supreme Court; carefully strategized amicus briefs; and desperately try to keep the cases out of the Supreme Court if at all possible.”

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Despite Sotomayor’s similar background to some Native Americans, Fletcher said she likely knows little about Indians, Indian tribes and Indian law. He strongly supports catering legal briefs involving tribes to her for the next several years.

“She is a relative blank slate on Indian law. I’m convinced the majority of the rest of the court has already made up their minds about Indians, Indian tribes and Indian law. Judge Sotomayor could be persuaded with the tribal interest point of view, I think, in ways the rest probably cannot.”

Fletcher agreed that Sotomayor should be invited to as many reservations and tribal courts as possible. But she’ll probably be wary of accepting any invitations until after she is confirmed and settled in, he added.

Tribes have had some success in courting seated Supreme Court justices in the past. In 2001, as a result of an internal connection, Justices Sandra Day O’Connor and Stephen Breyer visited the Navajo Nation and Spokane Reservation.

Some observers believe their decisions on tribal cases ended up being better informed as a result of their visit.

At a speech before the American Bar Association in August 2001, Breyer reflected on his reservation visits, which included a drug court tour and a review of tribal mediation techniques.

“We. … began to understand the great benefits that a few additional resources might bring.

“During these visits, we shared views and experiences – which, we hope, will prove beneficial in the continuing effort to improve the quality of justice (and therefore the quality of life) on Indian reservations.”

No Supreme Court justice has visited a reservation since 2001. National Indian organizations have extended invitations to newer justices, including Chief Justice John Roberts and Samuel Alito, but they have declined to make reservation visits.

Guest suspects that tribal invitations will soon be delivered to Sotomayor.

But few legal experts expect any miracles.

As the NARF memo says, “there is very little possibility that Judge Sotomayor’s vote on the court, by itself, will change the outcome in future Indian law cases, [but] Indian country needs a champion on the court – a justice who will look beyond just the last 30 years of Indian law.”

Even if Indian country were to make positive inroads with Sotomayor, it would only be a beginning to a long process, cautioned Fletcher.

“Sotomayor is just step one – an important step – in courting the court. Step two is another informed justice. And step three is yet another informed justice.”