WASHINGTON - Supreme Court nominee John G. Roberts Jr. has as sparse a
judicial record on Indian law as on other hot-button issues, but briefs he
wrote as a private lawyer in several major Native cases show a radical,
possibly alarming critique of what he called the "decidedly mixed legal
legacy" of federal Indian policy.
The Gwich'in Steering Committee issued a statement of "grave concern" over
Roberts' nomination, calling attention to a brief he wrote for the state of
Alaska in the 1997 U.S. Supreme Court Venetie v. the State of Alaska case.
The court sided with Alaska, ruling that most Native lands there were not
part of "Indian country."
As a private lawyer much sought-after in Supreme Court cases, Roberts also
argued against Alaska Native subsistence fishing rights in the famous Katie
John v. Alaska case. The 9th U. S. Circuit Court of Appeals upheld the suit
brought by John, an 83-year-old Ahtna Athabascan, rejecting Roberts' brief
on behalf of the state.
Although tribal law practitioners caution against reading too much into
arguments made by a private lawyer on behalf of a client, a Gwich'in
spokesman said that Roberts' track record as an attorney carried greater
weight because of his short tenure as a U. S. Appellate judge. In a
statement, the steering committee said his nomination "signals [the]
potential for further erosion of tribal rights."
Said steering committee representative Luci Beach, "In two landmark cases,
Roberts has argued that the rights of the state of Alaska supercede the
sovereignty and subsistence rights guaranteed to Native peoples by the
federal government ...
"This is sadly indicative of the Bush administration's disregard and
contempt for basic tribal and human rights, which has also been signaled by
Bush's incessant push to drill in the Arctic National Wildlife Refuge
regardless of the impact to the land or the people."
The brief in the Alaska v. Native Village of Venetie Tribal Government case
could well be crucial, however, as an indicator of a potentially radical
departure on Indian law. Roberts, then a member of the Washington, D.C.
firm Hogan & Hartson, signed it as counsel to the state attorney general.
The case defined the Alaska Native Claims Settlement Act of 1971, at that
point the largest Native land claims settlement in U.S. history. Under the
shadow of North Slope oil finds and plans for a trans-Alaska pipeline, the
act made a radical break in policy and transferred nearly $1 billion and 44
million acres - not to Native governments, but to Native-owned and operated
business corporations. The land could be bought and sold without
The Gwich'in village of Venetie long resisted the corporation system of
ANSCA. The Supreme Court case arose when the tribal government regained
control of its Aboriginal land on the southern slope of the Brooks Range
and asserted its sovereign power of taxation.
Roberts argued instead that ANSCA superseded "outdated notions of
dependence and superintendence."
"Because of its unique history and geography," he wrote, "Alaska and its
Natives were spared the reservation policy adopted by the federal
government in its relations with Indians in the lower 48 states. That
policy has left in its wake a decidedly mixed legal legacy, including the
notion of a 'dependent Indian community' itself. As the ANSCA Congress
recognized, Alaska - the nation's last frontier - provided an opportunity
for a new approach, one freed from outworn entanglements with an Indian
policy formed for a different time and place."
Roberts' definition of this new approach, however, completely excluded
tribal sovereignty and the treatment of tribal governments as co-equal with
states. He emphasized that Alaska's Native corporations were subject to
"state law and even taxation." In a foreshadowing of the Supreme Court's
recent City of Sherrill v. Oneida Indian Nation of N.Y. decision, he warned
that the "unilateral" creation of Indian country would "create enormous
uncertainty and confusion over the boundaries and extent of state, federal
and tribal sovereignty within vast areas of Alaska." If tribal villages
regained governmental power they could frustrate state regulation, he said,
and even tax the Native corporations out of existence.
Roberts directed his argument against a "repudiated" reservation system,
but he could not conceal his rejection of any Alaska Native assertion of
tribal sovereignty. Even though his brief did not address the rights of
tribes in the lower 48, it raises the serious question whether his approach
to Indian law would be an updated version of termination.