Trump's 9th Circuit Court nominee has record of litigating cases against Tribes

President Trump’s nominee for the U.S. 9th Circuit Court of Appeals, Eric D. Miller, has a record of winning cases against Native Nations as an attorney for Perkins Coie LLP. A firm that one Native leader called the go-to firm for jurisdictions that want “to fight an Indian Tribe.” Miller photo on left: Trump photo: Tuesday, Aug. 7, 2018, at Trump National Golf Club in Bedminster, N.J. (AP Photo/Carolyn Kaster)

Richard Walker

State Sen. John McCoy, Tulalip Tribes: “If a jurisdiction wants to fight an Indian Tribe, they hire Perkins Coie, LLC.

SEATTLE – President Trump’s nominee for the U.S. 9th Circuit Court of Appeals, Eric D. Miller, is a highest-honors graduate of two major universities, has clerked for U.S. Supreme Court Justice Clarence Thomas, and worked as an attorney for the U.S. Justice Department, the U.S. Solicitor General, and the Federal Communications Commission.

However, Miller also has a record of winning cases against Native Nations as an attorney for Perkins Coie LLP. A firm that one Native leader called the go-to firm for jurisdictions that want “to fight an Indian Tribe.”

Eric D. Miller, 43, is chairman of the appellate practice at Perkins Coie LLP, a Seattle-based law firm with offices in 19 cities. He has argued more than 60 appeals, according to his bio on the Perkins Coie website. He was nominated on July 13; if confirmed by the U.S. Senate, he would succeed Richard C. Tallman of Seattle.

The 9th Circuit Court of Appeals hears appeals of cases decided by executive branch agencies and federal trial courts in nine western states and two Pacific Island jurisdictions. The 9th Circuit Court had 11,096 new case filings in fiscal year 2017, according to the court website.

ICT left messages for Miller on his office phone Aug. 6 and 7; Jena A. MacLean, a partner at Perkins Coie, said Miller is not talking with the press about the nomination.

A prominent Northwest Native leader expressed concerns about Miller.

“I have concerns about Mr. Miller’s nomination to the 9th Circuit and his position on Tribal issues,” said Leonard Forsman, chairman of the Suquamish Tribe, president of the Affiliated Tribes of Northwest Indians, and vice chairman of the U.S. Advisory Council on Historic Preservation.

“Federal judicial nominations have a disproportionate impact on Indian Country because Indian law is often made and changed more from the judicial bench than by Congress. As an attorney, the nominee has represented interests that were opposed to treaty rights. He has attacked Tribal sovereign immunity. He has disputed a Tribal nation’s ability to acquire trust lands under the Indian Reorganization Act and [shown] a repeated willingness to side against Tribes in court, and we fear this track record will follow him to the bench.”

Here’s what his record says

In 2017, Miller obtained a unanimous decision of the U.S. Supreme Court establishing that the Mohegan Tribe’s sovereign immunity did not protect its employees from lawsuit in the state court system for wrongful acts committed within the scope of their employment – in this case, a vehicle collision caused by a Mohegan Tribe employee transporting guests of the Tribe’s Mohegan Sun hotel casino resort. The high court’s decision reversed a decision of the Connecticut state Supreme Court (Lewis v. Clarke, 137 S. Ct. 1285).

However, the same year, Miller obtained a decision of the 10th Circuit Court of Appeals invalidating the U.S. Interior Secretary’s issuance of Tribal gaming procedures in New Mexico – on the grounds the Interior Department’s involvement violated the state’s sovereignty (State of New Mexico v. Department of Interior, 854 F.3d 1207).

In 2013, the Pueblo of Pojoaque asked New Mexico to enter into gaming-compact negotiations. When New Mexico didn’t respond within the 180 days established in 25 Code of Federal Regulations § 291, the Pueblo asked the Interior Department to issue Class III gaming procedures, again in accordance with 25 CFR § 291. New Mexico sought an injunction, which was denied by a lower court.

New Mexico’s lawsuit, which alleged that 25 CFR § 291 exceeded the Interior Department’s statutory authority, proceeded to the 10th Circuit Court, which ruled in favor of New Mexico.

In 2015, Miller obtained a decision of the 9th Circuit Court of Appeals denying the Kawaiisu Tribe of Tejon’s land claims at Tejon Ranch, at 270,000 acres the largest privately owned property in California. Indigenous peoples were living on the land in 1853 when the ranch was created from four land grants issued by Mexico when Mexico claimed ownership of California. Aboriginal claims to the land were never extinguished by treaty with Mexico or the United States.

At the urging of the Superintendent of Indian Affairs, the Sebastian Indian Reservation was established in 1853 at Tejon. The reservation was ordered closed in 1864 and approximately 200 Native people were relocated to the Tule River Reservation, although several Indigenous peoples – among them Chumash, Kawaiisu and Kitanemuk – continued to live on Tejon Ranch well into the 20th century.

In 2013, Miller obtained a decision of the 2nd Circuit Court of Appeals establishing the authority of the State of Connecticut and the Town of Ledyard to tax companies on their slot machine leases with the Mashantucket Pequot Tribe’s Foxwoods Resort Casino (Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457.)

A similar case involving the Tulalip Tribes -- in which Miller and Perkins Coie are not counsels — is awaiting a U.S. District Court decision and both sides expect it to go to the U.S. Supreme Court. The Tulalip Tribes is challenging state and local taxation of business transactions conducted by non-Indians in the Tulalip Tribes community of Quil Ceda Village. In addition to taxing business transactions, the County of Snohomish imposes a leasehold tax on businesses that lease land from Quil Ceda Village, even though the leases are on Indian land and were negotiated between the Tulalip Tribes and the businesses.

The United States intervened in support of the Tulalip Tribes and is a co-plaintiff in that case.

State Sen. John McCoy, a citizen of the Tulalip Tribes and a former general manager of Quil Ceda Village, was not familiar with Miller and declined to comment on the attorney’s nomination to the court. But, he said of Miller’s law firm, “If a jurisdiction wants to fight an Indian Tribe, they hire Perkins Coie, LLC.”

Bryan Watt, a spokesman for Sen. Maria Cantwell, D-Washington, told The Seattle Times on July 13 that the senator “did not and does not consent to Eric Miller’s nomination.” Cantwell is a senior member and former chairwoman of the U.S. Senate Indian Affairs Committee.

Robert Miller, Eastern Shawnee, professor at Arizona State University’s Sandra Day O’Connor College of Law, said he’s hesitant to predict how Eric Miller (no relation) might perform as a judge based solely on the position of the attorney’s past clients.

“An attorney is hired by a client to do a job,” Professor Miller said. “That doesn’t necessarily mean he holds the same opinion as his client. We don’t know what the attorney believes. Attorneys represent the best interests of their clients. They have to be able to analyze both sides and develop a winning and legal argument.”

MacLean, Miller’s colleague at Perkins Coie, agreed.

“I’ve seen his work in a number of practices. He’s one of the most open-minded lawyers I’ve seen and he has the temperament to treat all sides fairly,” she said. She noted that when Miller was assistant to the U.S. Solicitor General, he argued before the U.S. Supreme Court on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians in a land-into-trust case (Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 2012).

While many cases Miller has worked on at Perkins Coie have been “adverse to Tribes,” MacLean said, “he approaches each case with an open mind.”

Thomas P. Schlosser has a similar opinion. He is an adjunct professor at Seattle University and is an attorney representing Tribes in cultural resources, energy, fisheries, timber, water, taxation, and federal breach of trust. In an emailed response to ICT, he wrote of Eric Miller: “He's quite young -- admitted in Washington in 2012. He has good experience at the Office of the Solicitor General. I know nothing of his politics. I don't hold against him his advocacy in [Lewis v.] Clarke and Upper Skagit. If anything, those cases make him familiar with federal Indian law.” (The Upper Skagit case involves a property line dispute between a neighbor of the Upper Skagit Reservation and the Upper Skagit Tribe. Miller represents the neighbor. The U.S. Supreme Court remanded the case to the Washington state Supreme Court.)

Some background: Eric Miller received an undergraduate degree from Harvard University and his J.D. from University of Chicago Law School. He served as a law clerk to U.S. Supreme Court Justice Clarence Thomas and Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia.

He served as an attorney in the U.S. Department of Justice in 2003-2006; as deputy general counsel of the Federal Communications Commission from 2006-2007; and assistant to the U.S. Solicitor General from 2007-2012, representing the U.S. government before the Supreme Court cases involving administrative law, communications, energy, and employment.

Miller is a part-time lecturer at the University of Washington School of Law.

Richard Walker (Mexican/Yaqui) is a correspondent reporting from the Seattle area.

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