This has been another bad year for American Indians in the Supreme Court. In the final week of its term last month, the court issued a ruling that further limits the ability of tribal courts to hear disputes involving non-Indians who violate the rights of tribal members. That 5 - 4 decision was just the latest in a string of bad cases for Indians and Indian tribes, and it serves as a reminder of the federal government's shameful failure to integrate its court system with Native judges.
No American Indian has ever sat on the Supreme Court. That alone may not be surprising, particularly in light of the fact that Natives make up just 1.5 percent of this country's total population according to the Census Bureau's latest estimates. There have never been any Asian-Americans or Latinos on the court, either, even though both minority groups make up a larger share of the country's population than Natives.
But even more disturbing is the fact that there have never been any American Indians on the federal appeals courts. According to the Federal Judicial Center, a government agency that tracks the history of the federal judiciary, there have been 687 appellate judges in our nation's history - 273 of whom are still on the bench - and not a single one of them has been Native. This is particularly troubling in the U.S. Courts of Appeals for the 9th and 10th Circuits, where American Indians constitute a significant minority of the population. It's a disgrace that there is not even one Native among the 71 judges currently sitting on those two courts.
At the district court level, the lowest rung on the federal court ladder, there has been only one tribal member on the bench in all of U.S. history, and that judge is no longer serving. President Clinton appointed Michael Burrage, an enrolled member of the Choctaw Nation, to the U.S. District Court in Oklahoma in 1994. Judge Burrage resigned in 2001 to pursue other interests, and President Bush appointed a non-Indian to fill his seat. As a result, the federal judiciary is once again without a single tribal member.
Only one other judge on the federal bench has ever identified as Native. U.S. District Judge Frank H. Seay, appointed by President Carter in 1979, claims Cherokee ancestry but is not an enrolled member. He retired as an active judge in 2003 and Bush appointed a non-Indian to fill his seat too. He now hears a much-reduced caseload and could soon step down from the bench altogether.
Although all racial minority groups and Latinos remain under-represented in the federal courts, none faces the degree of exclusion that confronts Natives. Blacks constitute 13.5 percent of the country's total population and 8.5 percent of federal judges currently sitting on the bench. Latinos represent 15.1 percent of the population; 5.3 percent of federal judges. Asian-Americans make up 5 percent of the population and 0.8 percent of federal judges. These numbers are nothing to be proud of, but they suggest that blacks, Latinos and Asian-Americans are welcome on the federal bench. The absence of Natives from the federal bench, by contrast, sends just the opposite message.
That message is bad for everybody. As the Supreme Court has recognized repeatedly in jury desegregation cases, the appearance of discrimination in the courtroom undermines public confidence in the fairness of our judicial system and fosters racial stereotypes and prejudice. And nowhere is the need for public confidence higher than in violent criminal cases, where American Indians are substantially over-represented as victims and offenders. Many Natives already view the federal courts as agents of injustice, and that's not good for anybody.
All Americans should be embarrassed, if not outraged, by the absence of Natives on the federal bench. There are plenty of qualified American Indian judicial candidates - just ask the National Native American Bar Association or any one of its state-based counterparts - and there are plenty of judicial vacancies. There's simply no reason to tolerate any further segregation in our judicial system. We won't have ''liberty and justice for all'' until tribal members - the First Americans - have a place on the federal bench.
- Bryan Sells
Staff attorneyACLU Voting Rights ProjectAtlanta