Indian Country Today
The government-to-government relationship tribes have with the United States is unique. With 574 federally recognized tribes, it is also complex.
The Supreme Court plays a special role in this relationship, hearing two to three Indian law cases on average per term, according to Joel West Williams, Cherokee Nation, a senior attorney with the Native American Rights Fund.
On Monday morning, Amy Coney Barrett began her confirmation hearings in the Senate Judiciary Committee to potentially fill the high court seat left vacant by the death of Justice Ruth Bader Ginsburg.
Williams says it is important for Indian Country to pay attention to who is appointed to the Supreme Court because when a federal Indian law case makes it all the way to the nation’s highest court, it is likely to impact all tribes.
“Even if it's just litigation involving one tribe or one individual Indian person, that case is likely to have significant impacts all across Indian Country,” Williams said. “So paying attention and having input on those new justices that are going to be on the court for probably decades is very, very important.”
No Native person has ever been nominated to the Supreme Court, and only three Native judges serve on the federal bench across the country.
Among the current Supreme Court justices, Justice Neil Gorsuch has the most experience with federal Indian law from his time on the 10th U.S. Circuit Court of Appeals, which includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah.
In the case of Barrett, there is not a lot on her record when it comes to federal Indian law, according to Williams.
Over the course of her career, she clerked for a judge who presided on the D.C. Circuit Court of Appeals, as well as for the late Justice Antonin Scalia on the Supreme Court.
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After the clerkships, Barrett spent two years in private practice before becoming a law professor, first at Georgetown University and later at Notre Dame.
Most recently, she served just under three years on the 7th U.S. Circuit Court of Appeals, which covers Wisconsin, Illinois and Indiana.
During her remarks at the White House accepting President Donald Trump’s nomination to the Supreme Court, Barrett noted Scalia’s “judicial philosophy is mine, too.”
In a memo sent to tribal leaders on Oct. 6, the Native American Rights Fund wrote that more often than not, Scalia voted against tribes.
“Justice Scalia voted against Tribal interests more than 86 percent of the time and wrote several majority opinions harmful to Tribal sovereignty,” the memo states. “Yet, occasionally he did cast votes favoring Tribal interests in cases involving, for example, the Indian Child Welfare Act and Indian reservation boundaries.”
Although, that is not to say a justice cannot grow into their federal Indian law knowledge. Along with Gorsuch, Justice Sonia Sotomayor has taken an interest in the field since being appointed to the Supreme Court.
“Justice Sotomayor in particular has been an intellectual leader in the area of Indian law on the Supreme Court. Justice Gorsuch came to the court with a significant amount of Indian law experience already,” Williams said. “I think that it's hard to predict how any particular justice might view these issues once they're on the court.”
Regarding Ginsburg’s record, a law review article by Carole Goldberg, published in 2010 by the Native American Rights Fund, cited the case City of Sherrill as evidence that Ginsburg did not “get” Indian law and was unsympathetic to tribal claims. Ginsburg later said she regretted her role in that case “more than any other case.”
In later cases, she was more aligned with tribal views: Ginsburg sided with the majority in McGirt v Oklahoma as well as a Crow tribe hunting case. Both cases strongly supported the ideas that treaties are the law of the land.
With the confirmation process officially underway, Trump and the Republican Party are aiming to have Barrett on the Supreme Court before Election Day. Senate Majority Leader Mitch McConnell, a Republican from Kentucky, has publicly stated he wants a vote on the Senate floor before the end of October.
It remains unclear whether any of the senators who sit on the Senate Judiciary Committee will ask questions pertaining to federal Indian law, even though it’s been a concern long voiced by Native organizations like the Native American Rights Fund and the National Congress of American Indians.
Many of the topics during the first hearing surrounded Barrett’s stance on the Affordable Care Act, the coronavirus and abortion.
As it stands, the Native American Rights Fund plans to monitor this week’s hearings and continue its evaluation of Barrett. But it doesn’t believe her nomination warrants support from Indian Country.
“For Indian country, Judge Barrett’s background, legal experience and judicial record offer little substance to solicit support for her confirmation,” the organization concluded in its memo.
Kolby KickingWoman, Blackfeet/A'aniih is a reporter/producer for Indian Country Today. He is from the great state of Montana and currently reports for the Washington Bureau. For hot sports takes and too many Lakers tweets, follow him on Twitter - @KDKW_406. Email - firstname.lastname@example.org
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