WASHINGTON, D.C. – Heather Dawn Thompson, president of the National Native American Bar Association, said that while the association cannot officially endorse the nomination of Judge Sonia Sotomayor to the Supreme Court, they are strongly supportive of her.
An official endorsement by the group requires an extensive background in Indian law, which Sotomayor does not have. “We think it is important to have a diversity of experiences and feel she will have a lot of understanding for the American Indian community. She has been very open-minded as a judge, which is important in looking into new areas of law. Both her personal history and her intellectual capabilities, we think, will make her a very good justice.”
Sotomayor will be the third woman and the third racial minority on the Supreme Court. She will be the first minority justice with some insight into the special property and political rights of minority people – in her case, the people of Puerto Rico. In many ways, neither American Indians nor Puerto Rico wants complete integration into the American polity, preferring a sovereign existence within the United States.
She is a graduate of Yale Law School and was nominated to the Second Circuit Court of Appeals by President Clinton. She served as a judge on the U.S. District Court for the Southern District of New York and in private practice specialized in intellectual property law, international litigation and commodities export trading.
“It is gong to be very exciting to have a Latina on the Supreme Court,” Thompson said. We are very happy that Obama is being open-minded about his nominations in general. We are hopeful he will consider an American Indian for the next round of nominations.”
Although Sotomayor has limited experience in Indian law, she has written the majority opinions on two Indian law cases, Catskill Development v. Park Place Entertainment (2008) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved federal prosecution of Mohawk Indians for failure to report income to the IRS.
The NNABA, in a May 6 letter, asked President Obama to consider a Native American candidate to fill the vacancy on the Supreme Court.
According to Thompson, an individual indigenous to our country has never been appointed to its Supreme Court, and in the past 30 years only two American Indians have served on the federal bench.
Indian law has a unique relationship with the U.S. government; an entire code of federal law is devoted to tribal citizens. Since most Indian communities are in federal trust, federal criminal law applies, overseen by federal courts. For more than 200 years, the Supreme Court has sat in judgment over tribal families, their land and treaties. With such a direct route between tribes and the federal court system, the NNABA feels, according to Thompson, it is in the best interest of Indian country to have a voice on the Supreme Court that is knowledgeable about Indian law.
Two hurdles which have hindered the efforts of American Indians to participate in the federal bench are state nominating structures and a lack of understanding of tribal court experience. State nominating structures are often comprised of non-minority, older well-established attorneys who are not familiar with minority communities, attorneys, tribes and the tribal court system.
The result, said Thompson, is a lack of diversity in the names senators forward to the president for openings at the federal court level. Tribal courts, their judges and appellate court justices are often misunderstood. Tribal court judges, Thompson said, must not only have an understanding of oral tribal customs, but of tribal constitutions and laws, state laws and all federal laws.
Practitioners are often unprepared when they run into Indian law, and it is this lack of knowledge that has led to a number of bad decisions affecting all of Indian country.
“By educating people who don’t normally practice Indian law on a daily basis about at least the basics of our tribal courts, sovereignty and tribal government – they end up making better decisions for everybody,” Thompson said. “There have been years when as much as one-third of the cases in front of the Supreme Court have been Indian law related.”
At a minimum, the NNABA would like to raise awareness of Indian law and promote the need in Indian country that knowledge of the unique federal tribal governmental relationship is important to consider.
In response to the letter, Thompson and the presidents of the National Bar Association, the National Hispanic Bar Association and the National Asian Pacific American Bar Association met with White House council Greg Craig. “It was a very positive meeting,” Thompson said. “Craig reiterated what the president has been saying all along, that he wants a candidate who is empathetic and understanding of the impacts of law on communities in the U.S. We very much appreciated that.”
The Judiciary Committee is scheduled to begin confirmation hearings on Sotomayor’s nomination July 13. If confirmed, Sotomayor would be the first Hispanic to serve on the nation’s highest court.
In the interim, the NNABA is turning to the president and federal government and emphasizing the disproportionate effect the Supreme Court has on tribal communities.