It looks like Sen. Al Franken of Minnesota is the only Democratic member of both the Judiciary and Indian Affairs committees. Sen. Franken, who visited Indian Country a few times in his campaign for the Senate, may be the only Senator who would even consider asking Judge Sotomayor a question about Indian law.
A straight up question about Indian law doctrines is likely to get a response about how the nominee would not comment on a particular case, and a question asking her what she knows about Indian law might do nothing except embarass her, so here are a few potential topic areas that could get at how the nominee might view tribal interests.
1. Federalism. Would she be persuaded by a canon of statutory construction that would construe very narrowly a law that limits state authority? Does she think the Constitution establishes a hierarchy of sovereigns, with state governments at the virtual top?
2. Minority property rights. Is Judge Sotomayor aware of how the U.S. acquired sovereignty over Puerto Rico, or New Mexico and California, or Indian Country east of the Mississippi, or Indian Country west of the Mississippi? How about the different character of treaties that both established and preserved property rights for discreet catagories/classes of Americans? Would she respect them? One expects the answer to the Puerto Rico question is yes.
3. Rule of Law. Tribal interests, like many other plaintiffs, raise claims based on clear violations of law by state or other actors. The Roberts Court often reaches outcomes rejecting those claims by relying on arguments never or only partially presented by the parties, often creating entirely new law to undermine the claims. Would Judge Sotomayor respect the rule of law in these contexts? Under what circumstances would she be willing to go beyond the arguments of the parties to decide a case?
Sen. Franken would make a huge splash in federal Indian law and policy by even hinting at caring about Judge Sotomayor’s views on tribal interests. Here’s hoping he does it.
Turtle Talk 
Very good questions, but how credible would they sound coming from Sen. Franken? So he made a few visits to Indian country during a campaign. Does he know anything about Indian country?
With all due respect, that’s not the point. It doesn’t really matter if it comes from Franken, or any other Senator. What matters is if Indian affairs comes up at all.
Sadly, Indian affairs is so far below the national radar, there’s no real chance, unless someone says something snarky about gaming.
Actually, I heard Senator Franken speak in late 2005 in Shakopee Sioux lands, on the Abramhoff scandal–relating to Native American and how he spoke of his Native clients behind their backs. He had so many facts and delivered them so eleoquently before most others even took a stand. The e-mail exchanges that were made-and obtained by the freedom of information act–that Franken brought forth were jaw dropping. After his speech, you could have heard a pin drop. The shock waves that rippled through my body were something I haven’t felt in a long time.I don’t think it is fair to suggest he isn’t in touch with Native America. Doesn’t always matter how many visits a politician makes before elected, it matters what he follows through with after in office. And for Senator Franken, 9 months behind schedule!
Does anyone really expect Judge Sotomayor to know anything about Federal Indian case law, since the rest of the US Supreme Court (ie. their law clerks) clearly demonstrated their own ignorance in the recent Commerce v. Long Case (which should have been been a foregone conclusion given the “Montana” rule).
Any Native that think we can get “JUSTICE” in this legal system are fooling themselves. Ironically tribes have won more cases in the 19th Century than in the 20th or 21st. Even then the legislative branch usually enacted statutes that nullified the court ruling or the Executive branch refused to enforce the rules ruling.
So asks your questions Senator Franken, I’m sure it will make no difference in the end.
As a former congressional staffer, I would poise this question: don’t you think that Candidate Franken’s handlers prepped him before hand on what to say to the Dakota crowd.
Then again Candidate Obama didn’t know anything about Native housing in a meeting with tribal leaders when he visited Sioux Falls last Spring 2008, despite having former SD Sen. Daschle & McGovern in tow.
We are under the radar and that probably won’t change anytime soon.
Perry Mason?!?! He spent his judicial confirmation hearing time probing/talking about Perry Mason. Not a word about Smoke Signals, too bad.