Obama vs. McCain and the Federal Judiciary

The NYT’s editorial today on the impact of the Presidential election on the federal judiciary should be especially salient to tribal advocates. Sen. McCain promises to continue to stock the federal judiciary and the Supreme Court with arch-conservatives like Justices Scalia and Thomas.  Sen. Obama has been more circumspect in his comments about federal judicial appointments, but the NYT editors (and we agree) assume he will appoint moderate liberals like Justice Breyer to the Court.

There are plenty of American Indian voters who have decided to back Sen. McCain, but they should reconsider in light of the import of his promises relating to the federal judiciary.

Consider what eight years of the Bush II Administration did to tribal interests, and add that to the 12 years of the Reagan and Bush I Administrations. Federal Indian law professors now recognize in general that 1986 or so was a major turning point in the success of tribal interests before the Supreme Court. From 1959 to 1986, tribal interests prevailed about 55-60 percent of the time before the Court, when the majority of the Court were liberals and centrists. Since then, they have lost more than 75 percent of the time. Seven of the nine current Justices are Republican appointees.

Though us law professors don’t like to say it much, there is a clear link to party affiliation and voting preferences.

It’s tempting for non-lawyers to ignore the federal courts. But consider the impact of the federal courts in recent years on terribly important tribal issues this year alone:

  • A multi-billion dollar potential award in Cobell v. Kempthorne cut down to mere percentage points of that sum
  • Affirmation of the National Eagle Repository’s constitutionality despite its obvious impact on Indian religious freedom
  • Application of the National Labor Relations Act to tribal casinos
  • Rejection of the Class III Gaming Compact Procedures promulgated by the DOI when a state government refuses to negotiate in good faith with Indian tribes
  • Rejection of tribal court jurisdiction over nonmember banks engaging in on-reservation predatory lending

Sen. McCain’s federal judiciary would perpetuate these kinds of decisions. It’ll take years, maybe decades, to reverse many of these outcomes. Sen. McCain often has been there for Indian tribes, but not this time. When push comes to shove, and the Republican base is pressuring him, don’t expect him to push back.

9 thoughts on “Obama vs. McCain and the Federal Judiciary

  1. E Zendejas September 22, 2008 / 5:52 pm

    I would agree that the judiciary is often overlooked by most voters during elections. I think we over generalize when we make assumptions like Republicans = bad, and Democrats = good for Indians and tribes. Lets look at the some of the examples cited in this article:
    1. Cobell v. Kempthorpe: This case was decided by Judge James Robertson, he was a Pres. Clinton (Dem) appointee in 1994. I believe that the Pres. Bush (Rep) administration offered to settle this case for approx. 5 Billion. I don’t have the exact figure, and I am subject to correction.
    2. The National Eagle Repository case, U.S. v. Friday, was decided by 10 Cir. Judges McConnell, George W. Bush appointee, Ebel, a Reagan appointee, and Seymour, a Carter (Dem) appointee. Given your argument, Seymour should have dissented in this opinion.
    3. Application of the NLRB to tribal casinos was decided by the D.C. Cir. in San Manuel Band v. NLRB. The Judges in that case were Brown, GW Bush appointee, Williams, a Reagan appointee, and Garland, a Clinton appointee. As reported on Indianz.com, the decision has little chance of being fixed by legislation because the DEMOCRATS are in control of Congress. Unions take precedent over Indian tribes in the Democratic party.
    4. As for the tribal court jurisdiction case, it appears to be a bit prejudicial to characterize this as a “predatory lending” case. The tribal members had done business with this bank for years, and this didn’t turn ugly until they defaulted on their loan. Even though the court ruled against the Indian petitioners, it is still difficult to determine which Justices will be friends of tribes based on political party affiliation. Justice Stevens and Souter were Republican appointees.

    I am not endorsing either party. My point is that it is difficult to base tribal support on party affiliation. Here in Nebraska, the Santee Sioux tribe fought Democratic Governor Ben Nelson for years in their attempt to negotiate in good faith for a casino. Currently, the Ponca Tribe is having to battle both a Nebraska Republican Governor and Attorney General, and an Iowa Governor and Attorney General for the right to exercise their sovereignty and open a casino in Iowa.

    The base of both parties push, and it is usually tribes and tribal members that feel the squeeze. I don’t expect Obama to push back either. Fixing the San Manuel v. NLRB could be an easy fix, if not for the Union push to keep it. Would a President Obama step in and tell the National Black Caucus to back down from the Cherokee Nation? The NBC has threatened funding for all tribes because of their position on the Freedman descendants. While an Illinois State or US Senator, did he take a position on the University of Illinois’ use of the racist Chief Illiniwek mascot? Has Senator Obama nominated any tribal members to serve as US Attorneys? Would he be willing to commit to the appointment of tribal members to the federal judiciary? Let me know, it may influence my vote.

  2. Matthew L.M. Fletcher September 22, 2008 / 6:17 pm

    I agree that for tribal interests, all politics is local. I cannot say for certain that there would be major difference between Obama or McCain on federal Indian policy. I have a great deal of respect for McCain’s past representation of tribal interests, but it’s not enough for me.

    And in each and every example you give where you think Obama will fail, so too would McCain — absolutely.

    For me, the VERY obvious tipping point is the judiciary. McCain has already promised us hard-right conservative judges and Justices. It’s an easy giveaway for him because he doesn’t really care about the judiciary.

    I guessed that if I gave specific examples of cases that someone would try to pick it apart, but the overall Supreme Court stats don’t lie. And in the lower courts, where the relatively invisible judges work, the reality gets worse pretty much every year.

  3. E Zendejas September 22, 2008 / 7:14 pm

    I too respect Sen. McCain for what he has done in behalf of Indian tribes and tribal members. At this point, that means more to me that what Sen. Obama has said he will do for tribes and tribal members. I believe that Sen. McCain would nominate a Diane Humetewa, Hopi AZ US Attorney or an Hon. Darold McDade, Shoshone UT Dist. Ct. Judge, for either a federal district or circuit ct. of appeals judgeship.

    Sen. McCain has proven his ability to work with Democratic Senators, and I believe he is smart enough, at least pragmatic enough, to know that with a Democratic Senate majority, it would be virtually impossible to get a “hard” conservative judge through the Judiciary Committee. Sen. Obama just hasn’t done anything in Indian country to show me that he would reach out to the Indian legal community to put qualified tribal members on the federal bench.

    I have been General Counsel to 2 Indian tribes, and in that capacity, I have been lied to by Governors, senators and congressional representatives of both parties. Actions mean more than their words. I certainly respect your opinion, and I have enjoyed the debate. Thanks!

  4. Matthew L.M. Fletcher September 22, 2008 / 7:16 pm

    Man, I thought you said you did not endorse either party! 🙂

  5. E Zendejas September 22, 2008 / 7:47 pm

    I am NOT endorsing a party. I said at this point in time, I tend to believe Sen. McCain has done more for tribes/tribal members. I am supporting Sen. McCain because of his proven track record with tribes and tribal members. I certainly respect Sen. Obama for what he has said, and I hope that if he is elected he will follow through. I am just not ready to believe what a politician says he/she is going to do for tribes and/or tribal members. We need to get us a show, sort of a rez version of Hannity and Colmes!

  6. Sog September 22, 2008 / 8:41 pm

    A very recent 9th circuit opinion in Borona Tribe of Mission Indians v. California Board of Equalization was written by a judge named Kim Wardlaw. Ms. Wardlaw is a democratic party loyalist who was appointed to the Federal bench by Clinton. She is regarded by many experts as the likely Obama appointee to the S. Court to replace Ginsburg who has already said she wants off the Court. This is important to Tribes because Ms. Wardlaw’s opinion in Barona was wrong on the law, created a bad result for Tribes, and the tone was blatently anti-Indian. I would suggest the her appointment to the Supreme Court would make another Scalia or Thomas seem very welcome.

  7. Jackson B September 23, 2008 / 1:11 am

    Mr. Zendejas,
    I wish to address your point about Sen. Obama being unable to stand up to the Congressional Black Caucus (CBC) on the controversial Cherokee/Freedman issue. In fact, Sen. Obama is the only candidate from any party that has addressed the issue and in my mind he addressed it perfectly. He sided unequivocally with Tribal Sovereignty. I’ve pasted the text of his response below. You can also read a little about the heat he took and withstood as a result of his progressive stance. Thank you.


    From Sen. Obama’s Campaign:

    Barack Obama has reiterated his support for tribal sovereignty. Senator Obama said, “Tribal sovereignty must mean that the place to resolve intertribal disputes is the tribe itself. Our nation has learned with tragic results that federal intervention in internal matters of Indian tribes is rarely productive – failed policies such as Allotment and Termination grew out of efforts to second-guess Native communities. That is not a legacy we want to continue.”

    With respect to the Cherokee Freedman issue, Senator Obama said that while he is opposed to unwarranted tribal disenrollment, congressional interference was not warranted at this point. “Discrimination anywhere is intolerable, but the Cherokee are dealing with this issue in both tribal and federal courts. As it stands, the rights of the Cherokee Freedmen are not being abrogated because there is an injunction in place that ensures the Freedman’s rights to programs during the pendency of the litigation. I do not support efforts to undermine these legal processes and impose a congressional solution. Tribes have a right to be self governing and we need to respect that, even if we disagree, which I do in this case. We must have restraint in asserting federal power in such circumstances.”

    Obama also reiterated his support for fulfilling the treaty obligations to tribes. “The Cherokee Freedmen issue highlights the larger issue of the unfulfilled treaty promises made by the federal government to tribes. It is these promises that Barack is most concerned with as the future president. Barack understands that the federal government owes a legal and moral obligation to tribes to provide health care, education and other essential services to tribes. This is not a handout, but compensation for millions of acres of land relinquished by tribes.”

  8. E Zendejas September 23, 2008 / 3:24 am

    To Jackson B and Sog:
    Thanks for the update on BO’s response to the Black Caucus on the Freedmen issue. However, all this tells me is that if he can’t persuade the Black Caucus, how can he be the unifier he claims he can be? He certainly says the right things, but once again, he just hasn’t done enough to back up his words. A year and a half in the Senate is not enough time to back up his words. As I said earlier, if he is elected, I hope he lives up to his words. If not elected, lets see how he does as a Senator.

    The comment by Sog makes my point that you cannot tell just by party affiliation how a judge is going to rule when it comes to Indian issues.

    Once again, thanks for the opportunity to discuss these issues without all of the usual name calling you find on comment boards. Maybe in the not too distant future, we will see tribal members sitting on the federal bench having input on issues that matter most to tribal members and tribes.

    Mr. Fletcher, maybe the next topic for discussion is why tribal governments continue to appoint non-Indians to tribal court judgeships when there are certainly plenty of qualified tribal members for those positions? What say?

Comments are closed.