From ICT’s Rob Capriccioiso:
WASHINGTON – Justice John Paul Stevens’ retirement from the U.S. Supreme Court has some tribal legal advocates calling for an American Indian replacement.
Stevens, who announced April 9 he would retire in late June or early July, has served on the court since 1975. A member of the court’s liberal voting bloc, he slowly grew stronger on tribal issues, including sovereignty, during his tenure, legal observers said. Still, the consensus is, he had a long way to go.
“Justice Stevens’ record on Indian issues is a mixed bag,” said Chris Stearns, a Navajo attorney for Hobbs Straus Dean & Walker and a commissioner with the Seattle Human Rights Commission. “His 35-year tenure on the court meant he was involved in some of the most significant cases in Indian law history.
“He wrote the Supreme Court’s [1979] opinion affirming the Boldt decision upholding Washington tribal fishing rights and rejecting the state of Washington’s appeal led by then-Attorney General Slade Gorton. That case remains one of the most profound recognition of the power of treaties.”
Stearns added that Stevens was “the lone voice of reason” on the court during the controversial Carcieri decision of 2009, in which he argued in favor of the Narragansett Tribe’s position.
On the other hand, Stearns noted that Stevens sometimes dissented against tribal interests in cases favoring tribes, such as Cabazon, which involved gaming, and Holyfield, which involved the Indian Child Welfare Act.
Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, expanded on Stevens’ anti-tribal decisions, saying that his legacy in Indian law is “very, very bad.”
Fletcher said that Stevens was particularly tough in the area of federal Indian law preemption cases, where all tribal taxation cases fit.
“During the 1970s and through the 1980s, the tax cases were hit and miss because the court was unsure how to handle them. But in 1989’s Cotton Petroleum case (authored by Stevens), the court placed the advantage squarely with the states and local governments. From then on, the court only took cases far out of step with its settled understanding. …”
Fletcher also believes Stevens would “have eviscerated tribal sovereign immunity long ago,” since he often has argued against any form of immunity, tribal, federal and state, for decades, to little or no avail.
Many Indian law experts believe the Supreme Court is weak on tribal issues because it has never had any knowledgeable members of that field.
To remedy the situation, some Native American-focused organizations are rallying for an Indian face on the bench. John Echohawk, director of the Native American Rights Fund, has been floated as the most common name, even receiving a nod in The Nation publication, which is influential in some Washington circles.
Richard Guest, a legal expert with NARF, said officials with his organization are soon to have a meeting with White House officials regarding Echohawk’s qualifications, which range from tribal and federal expertise to nonprofit and legal aid issues.
“We believe we have a strong case to share regarding John Echohawk – not only because he is a strong Native American legal authority, but he also has diversity of perspective.”
The National Native American Bar Association is also pushing for a Native candidate, sending the White House a letter April 14 to make
that case.
“Our first goal is to try to get a Native person in there,” said Heather Dawn Thompson, the immediate past president of the organization. “It’s always a long shot, but we actually think we have as good a shot as anyone else.”
Reasons for hope include a USA Today poll last year that indicated a majority of American people saying they’d like to see an Indian nominated to the court.
Plus, Thompson said the wide-ranging legal experience of Indian law experts should be a factor.
“Every Native attorney is a constitutional scholar, by definition. In this field, you just have to be a state and federal law expert. … every single issue that could come up is addressed in this field.”
Fletcher took a hesitant view of the likelihood of a Native selection.
“Sadly (very, very sadly), John Echohawk (or any other American Indian, or Indian law-focused practitioner) is definitely not a serious contender. Most realistic possibilities for the Supreme Court nomination are already federal or state judges in order to avoid the obvious question, ‘What is the nominee’s judicial experience?’ And there simply are not any American Indians on the federal bench, and only a small handful on state appellate benches.”
The NNABA has long made the case that the absence of Indian federal judges across the board needs to be remedied, especially since such cases tend to disproportionately affect Native Americans.
Among the non-Indian names mentioned for the bench, none are notable on Indian issues, and there is little consensus on who would be best in terms of tribal affairs.
President Barack Obama is expected to make a decision on his selection by summer. No matter the candidate, a tough confirmation battle is expected in Congress, given the increased politicization in that body lately.
Turtle Talk 