Eric Miller on the Ninth Circuit? Time for a more suitable candidate

ICT editorial team

Miller often takes extreme positions against tribes, treaty rights

John Echohawk

Native American Rights Fund

President Trump has nominated attorney Eric Miller to serve on the Ninth Circuit Court of Appeals. Last week the National Congress of American Indians and the Native American Rights Fund sent a detailed letter to the Senate Judiciary Committee reviewing his record and opposing his confirmation. I urge tribal leaders across the country to send similar letters to their Senators. Here is what your letter might say:

We oppose the confirmation of Eric Miller because he is a devoted opponent of the rights of tribal governments. Mr. Miller is a talented attorney. He clerked for Justice Clarence Thomas and served in the Solicitor Generals office. When entering private practice five years ago, he had a wide range of choices as to what legal legacy he would forge. Our concern is that he chose to build a law practice by mounting repeated challenges to tribal sovereignty, tribal lands, and the core attribute of the federal governments recognition of tribal existence. He has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights.

As an example, in recent Supreme Court litigation regarding treaty fishing rights, Mr. Miller brought together a group of business, real estate, and farming organizations and wrote a brief arguing that although tribes may have a treaty right to fish, the treaties did not guarantee that there would be any fish to catch. Under Mr. Millers theory, the State could block all the fish, or take all the water out of every river, and no treaty rights would be violated. This is an extreme anti-treaty rights position that dismisses the long-standing canon of construction that treaties are to be read as they would have been understood by the tribes at the time of their signing.

In the same term of the Supreme Court, he argued against tribal sovereign immunity in Upper Skagit v. Lundgren. He wrote: The limited nature of tribal sovereignty suggests that to the extent tribal sovereign immunity differs from that of other sovereigns, it should be narrower, not broader. Unlike foreign and state sovereignty, tribal sovereignty has been significantly divested. Millers embrace of the implicit divestiture of tribal rights is cause for serious concern.

In recent Ninth Circuit litigation, Mr. Miller labelled Buena Vista as a putative tribe and argued that the Ninth Circuit was allowing a would-be tribe to bootstrap its federal recognition into an immunity from any challenge to the lawfulness of that recognition, He urged that sovereign immunity cannot be invoked when tribal status is the ultimate issue. This legal standard urged by Mr. Miller is alarming, as it could be used to challenge the legitimacy of any federally recognized tribal government and would encourage a scorched earth approach to litigation involving tribal rights.

In just five years, Mr. Miller has managed to amass a record featuring eleven cases where he represented parties attacking tribal rights.Because of this, we do not believe Mr. Miller would be fair in hearing cases regarding tribal rights. We understand that judicial nominees may have differing opinions around the margins, but a commitment to fundamental Constitutional principles is essential. Upon our review of his record, we are concerned that Mr. Miller does not possess a mainstream understanding of tribal sovereignty, treaty rights, and the federal trust responsibility, or their role in the Constitution and federal law. The positions he has repeatedly advocated would have detrimental consequences for the federal-tribal relationship, and would undermine fundamental principles of tribal sovereignty, governance, and self-determination.

In the larger picture, Eric Miller is not a suitable judge for the Western United States. Native of Chicago, graduate of Harvard, he has spent most of his career in Washington, D.C. The Ninth Circuit is Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. In the West, we need judges who understand that Indian tribes are functioning governments governing real people in important places. We also need judges with experience and interest in the public lands and water law and natural resource issues that are critically important to the Western United States. Mr. Miller has only recently moved to Seattle, Washington, and we do not believe he understands western issues.

There are 427 federally recognized tribes in the Ninth Circuit, more than any other Federal Court of Appeals. Tribes in Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington would be directly and negatively impacted by Mr. Millers confirmation. But the danger is larger. Because the Ninth Circuit hears more tribal cases than any other, it is a leader in the field of federal Indian law. Other circuits often follow its example, and it feeds more tribal cases into the Supreme Court. For this reason Mr. Miller poses a threat to all tribes.

It is crucially critically important that tribes coming before any federal court are heard by judges who share the Constitutions fundamental understanding of tribal government rights. Eric Miller does not share these values, and we urge Senators to exercise their responsibilities to advise the President that they will not consent to this appointment.

John Echohawk, Pawnee, is executive director of the Native American Rights Fund in Boulder, Colorado.