Cante waste un nape ciyuzapi (We shake your hand with a good heart). As you weigh the various candidates for the upcoming Supreme Court vacancy, the National Native American Bar Association strongly asks you to consider a Native American candidate. While much of America is underrepresented on the Supreme Court, the U.S. has never appointed an individual indigenous to this country to its Supreme Court.
President Obama, the Native American community turns to you humbled. We recognize with a warm heart that many of our brothers and sisters also turn to you with sincere and important interests in seeing familiar faces on the Supreme Court. However, we turn to you with pleas and desperation. For more than 200 years the United States Supreme Court has sat in judgment over us, over our lands, over our treaties, and over our families. Not one single day have we ever had a voice in those decisions.
No Native American Supreme Court justice, Federal Judge, nor Supreme Court Clerk. Not only has a Native American never served on the Supreme Court, there is not a single Native on the federal bench in the entire country, and to the best of our knowledge there has never been a Native American Supreme Court clerk. There are 866 federal judgeships (nine on the Supreme Court, 179 on the Courts of Appeals and 678 in the District Courts), and not one Native American federal judge.
Dozens of Qualified Native American Candidates. While the Native bar is small, where we lack in quantity, we excel in quality. Because there are so few Native attorneys, they must each be excellent not only in their own field, but in tribal, state and federal law. There are dozens of Native attorneys qualified for the federal bench and a number of qualified Natives for the Supreme Court such as John EchoHawk (who many consider the Thurgood Marshall of Indian country), Larry EchoHawk and Kevin Gover.
Disproportionate Effect of Federal Courts on Native Americans. In addition, the Supreme Court and federal court decisions often disproportionately affect Natives. As outlined in the U.S. Constitution, tribal governments are nations pre-dating the formation of the United States, and the relationship is regulated by Congress. Most Indian reservations continue to be in “federal trust” and federal criminal law applies on most Indian communities. Not only do federal courts oversee this Congressional relationship with tribes and the treaty and trust responsibility to tribes and its citizens, tribal citizens are the only group in the country that has an entire code of federal law (25 USC) devoted to them.
Hurdles: State Acrimony/Value of Tribal court experience. Two additional hurdles continue to hinder ongoing efforts of Natives to participate in the federal bench: The state nominating structure and the lack of understanding of tribal court experience. Unfortunately, many states and state legal infrastructures continue to have a very acrimonious relationship with tribes and Native Americans. It is in these states where Natives are most desperately needed on the federal bench to bring forth an additional perspective. But it is often here where Natives are the most unlikely to be successful due to federal deference to the local state nominating process. In addition, a misunderstanding of tribal courts has often led to an incomplete valuation of the experience of our esteemed tribal court judges and tribal appellate court justices. In order to serve as a tribal court judge one must not only have an understanding of oral tribal customs, but of all written tribal constitutions and laws, all state laws, and all federal laws.
President Obama, we recognize and respect the difficult decision before you, and the many interests you must weigh. We ask only that our lack of voice for more than 200 years be a consideration in your decision.
Heather Dawn Thompson
Cheyenne River Sioux – Mnicoju/Itazipco
President, National Native American Bar Association