What to expect from Supreme Court nominee

Indian Country Today

Native American Rights Fund Attorney Joel Williams tells us what the U.S. Supreme court nominee could mean for Indian Country. Also, Indian Country Today's Editor Mark Trahant takes a deep dive into the possibility of a Navajo Nation statehood.

Indian Country is closely watching the nomination of Amy Coney Barrett to the U.S. Supreme court. Cherokee citizen Joel West Williams of the Native American Rights Fund shares a memo his organization put together outlining judge Barrett's background and experience with federal Indian law.

Plus Indian Country Today's editor Mark Trahant is also on the show. He's exploring the idea of Congress considering the Navajo Nation for statehood. It's a deep dive into the complex relationship between tribes and the U.S. government that you won't want to miss. 

Some quotes from today's show.

Joel West Williams: 

"This morning those opening statements, I think we're kind of a preview of the likely issues that will be pushed by either side during the hearing. Seems pretty clear that the democratic side pretty focused on the Affordable Care ACT. I think that'll be a pretty strong theme throughout the hearings as they go forward in the coming days."

"Nothing that's directly federal Indian law. There was one case where she was on a three judge panel that involved a Native inmate incarcerated in Wisconsin. He was challenging some of the restrictions that the prison and put in place. Claiming that they interfered with as has religious exercise. But nothing that's directly an Indian law question."

"She's spent about three years as a judge. I think it was about 17 years as a law professor before that. With a lot of writing on constitutional law issues, statutory interpretation. Those have been big areas of her focus. A couple of mentions of Indian law doctrines in those writings, but not a significant amount of substantive analysis."

"Federal courts have a tremendous impact on the everyday lives of Native people and on Indian tribes. Indian law questions are primarily decided in the federal courts. And of course the U.S. Supreme court has the final say on that. Every year, every term, on average the court will decide two to three Indian law cases that are likely to have national impact. So for justices on the court to have a thorough understanding of federal Indian law and historical and cultural context for making those Indian law decisions, is tremendously important."

"Her scholarly writings don't demonstrate that she's had much exposure to Indian law, But one of the things that Justice Sotomayor described when she became a justice on the U.S. Supreme court is going back to square one. She didn't have a lot of Indian law exposure herself, but went back to the very beginning, to the earliest Supreme court cases on federal Indian law and started reading those and educating herself. And of course became an intellectual leader on the court, in the field of Indian law. So taking an inquisitive and curious approach to learning about a new area of the law and informing oneself on it could certainly be helpful. And I hope that she takes the opportunity to do that."

"She'll have her hearings this week. I don't recall the exact timing of the committee vote. I think that might come perhaps next week. And then a majority leader McConnell is looking to have a full Senate vote by the end of the month. And that goes pretty quickly, moving a nominee through the process fairly quickly. And in fact, that was touched upon a little bit in this morning's opening statements. Both sides unsurprisingly have different viewpoints about that. But I think it is unusually fast."

Mark Trahant:

"There is an interesting history here. A little more than a week ago Senate minority leader Chuck Schumer, a democrat from New York, told MSNBC that he’d love to make both Washington, D.C., and Puerto Rico states. This scenario could happen if the democrats win the election and especially if there is a sweep of the House, Senate and White House. This reminded me about the idea of a Navajo state, one that surfaces from time to time. The idea itself has a rich history both in the United States as well as around the world. Of course statehood will not fix the problems facing the Navajo Nation but it would do two things: add representation in congress and open up funding. This would mean two U.S. Senators and at least one member of the House. The federal government has a different formula for how to distribute money to states than it does for tribal governments. So much so that federal dollars are the single largest share of every state budget averaging about a third of all the money coming in. Nearly one out of every five dollars spent by congress is shipped to states."

"Some states do better than others. New Mexico is at the top of the list. The Brookings Institute estimates the “transfer of payments” between the federal government and that state reach more than $3,500 per person. If that same formula applied to the Navajo nation, the total funding would be around $600 million per year. As a comparison the emergency funding in the coronavirus aid, relief, and economic security act was $714 million. But that was a one time funding source and the most ever spent on Indian Country. There is no guarantee that a Navajo state would receive that much. But even if the state with the lowest percentage of federal transfers is used as a base number, it would still exceed $340 million a year. Then so much of federal spending is based on census data, including poverty levels. so a Navajo state is likely to be on the higher side of that equation."

"The constitution lays out the process for creating a state. About a century ago, congress considered the state of Sequoyah in what is now eastern Oklahoma. The people of what was then the Indian territory met, wrote a constitution, and then voted for statehood. But congress and president Teddy Roosevelt nixed the idea. They were afraid that the twin territories -- Oklahoma and Sequoyah -- Would send four democratic senators to Washington. And it was a republican era. So Oklahoma became the state. In terms of what it would take … one reading of the constitution says Utah, Arizona and New Mexico would have to agree to Navajo statehood. but there’s another reading, that says the Navajo treaty pre-dates those states and that would mean the congress could act without state consensus."

"In addition there are international examples ranging from Nunavut in Canada to Greenland. Nunavut is a self-governing territory of Canada. It elects representation in parliament and has its own legislature and government, very much like a state. One issue here is representation. There has never been a Navajo in congress. while U.S. territories, such as Puerto Rico, Guam and the Commonwealth of the Northern Mariana Islands have marginal representation in congress … a house delegate that can serve in committees but not vote. And even that is not equitable: the delegate that represents the Northern Mariana Islands with a constituency of about 55,000 people, less than a third of the population of the Navajo Nation."

"There are all sorts of possibilities, such as a formal U.S. territory, or commonwealth. But I think two elements would be really important to that discussion. First -- representation and second resources. Last week in Phoenix the democrat’s presidential nominee Joe Biden said on his visit. “Navajo Nation, stay strong … we need you because you’re going to have a seat at the table if we get elected.” in the end, statehood or not, that’s what this story is all about a real seat at the table."

Patty Talahongva, Hopi, is executive producer of Indian Country Today. She is also the anchor of the weekday newscast. Follow her on Twitter: @WiteSpider.

Also on today's show:

Mark Trahant, Shoshone-Bannock, is editor of Indian Country Today. On Twitter: @TrahantReports Trahant is based in Phoenix. 

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