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Mark Trahant and Patty Talahongva
Indian Country Today

A history of the Supreme Court’s role in Indian law offers an unsettling conclusion.

“There is strong evidence that an institutional bias against tribal interests drives the current Supreme Court, writes Matthew L.M. Fletcher for the American Bar Association. “Even when the federal government sides with tribal interests, the Court is unimpressed. This institutional bias runs against the now settled national policy favoring tribal self-determination.”

That’s not a good start. And as Fletcher writes in his blog, Turtle Talk, Supreme Court Associate Justice Stephen Breyer “was no tribal sovereignty warrior a la Sotomayor, but he was no Indian fighter, either.”

Breyer is expected to retire over the summer.

Indeed, he writes, “Justice Breyer’s voting patterns are striking for one reason only — he rarely dissented from the Court’s majority in the Indian law docket. He seems to have gone with the flow.”

That flow has a lot of implications for Indian Country. And this could be a significant shift in an upcoming judicial vote.

(Related: Justice Breyer to retire; Biden to fill vacancy)

There is a pending petition to consider three cases involving the Indian Child Welfare Act. One of those cases, Haaland v. Brackeen, is a challenge to the congressional authority for the 1798 law because adoptions have been a “virtually exclusive province of the States.”

Fletcher writes that Breyer was on the wrong side.

“In the bad stuff — and I do mean BAD — Breyer voted with the 5-4 majority in Adoptive Couple v. Baby Girl, swapping places with Justice Scalia, who dissented in favor of a Cherokee birth father," he wrote. "Breyer’s concurrence tries at least to limit the scope of the majority’s incredibly vicious attack on the Cherokee father, but offers absolutely no reason for the vote. Brackeen and all the attacks on ICWA are happening right now because of that vote. Period.”

So a new justice could mean a new point of view, one that respects tribal history and law.

“Well, we always need the votes of the justices on our federal Indian law cases that go before the court. So it always helps to have a justice who knows about Indian country, knows about federal Indian law,” said John Echohawk, executive director of the Native American Rights Fund, or NARF.

And, he adds, there is a way “to figure that out.”

NARF and the National Congress of American Indians’ Supreme Court Project will review the record when the president makes the appointment. “We report that information then to the tribal leaders at NCAI, and then they decide whether they're going to support the nominee or oppose the nominee, or stay neutral.”

President Joe Biden promised during his campaign to appoint a Black woman to the court. The judiciary is overwhelmingly White and male. And the president has had a record number of what the Brookings Institution calls “unprecedented demographic and career diversity” in his district and appeals court appointments, including the appointments of Judge Laren King, Muscogee Nation, in Washington state and Judge Lydia Griggsby, who the White House says is African-American and Native American.

There is a growing list of Native Americans who are more than qualified for a Supreme Court seat, or even a court of appeals seat since there is no Native American serving there either. Other presidents have turned to state appellate courts for Supreme Court nominees, such as Arizona’s Sandra Day O’Connor. Anne McKeig, White Earth Ojibwe, is on the Minnesota Supreme Court; Justice Raquel Montoya-Lewis, Isleta Pueblo, is on the Washington Supreme Court; and Mark Montour, a citizen of St. Regis Mohawk, is on the New York Supreme Court.

Echohawk said the priority, for now, is getting justices on the court that have an understanding of federal Indian law. “We've got very, very few Native Americans serving in the federal judiciary. And we're hoping to have more, and we just keep working hard to try to make that happen. And, you know, hopefully things will change.”

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