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Roberts starts Supreme Court confirmation hearings
Tuesday, September 13, 2005

On the opening day of his Senate confirmation hearings as chief justice, U.S. Supreme Court nominee John G. Roberts Jr. pledged to be fair and open-minded in approaching and deciding cases.

With several high-profile disputes, including a critical Indian taxation case, on the docket, Roberts vowed to show restraint if he is confirmed to the nation's highest court. He said the role of the judiciary is not to make the law but to interpret it.

"I have no platform," the Washington, D.C., attorney told the Senate Judiciary Committee. "Judges are not politicians who can promise to do certain things in exchange for votes."

"I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented," he continued."

The six-minute statement, coming after more than three hours of opening remarks by members of the committee, gave no hint of the controversies that lie ahead for the court. The justices will resume for their October 2005-2006 session in less than a month, amid growing concern over judicial activism among tribal leaders, their advocates and the nation at large.

Several committee members, both Republican and Democrat, spoke of the lack of confidence in the judiciary. They said they hoped Roberts would help restore order in the nation's courts if he is confirmed at the 17th chief justice.

"Your prospective stewardship of the court," said Sen. Arlen Specter (R-Pennsylvania), the committee chairman, "would present a very unique opportunity for a new chief justice to rebuild the image of the court away from what many believe it has become as super legislature and to bring consensus to the court, with the hallmark of the court being 5-4 decisions."

The recent 5-4 splits include US v. White Mountain Apache Tribe, a 2003 decision that upheld the federal trust responsibility; Idaho v. US, a 2001 decision that upheld an Idaho tribe's ownership of the southern third of Lake Coeur d'Alene; and Minnesota v. Mille Lacs Band, a 1999 decision that affirmed the off-reservation treaty rights of Minnesota's Chippewa tribes.

None of these cases, or Indian law in general, were mentioned by Roberts or members of the committee yesterday despite Roberts' extensive background in Indian law. Of the 39 cases he argued before the Supreme Court, two cases touched directly on the familiar issues of sovereignty, taxation, the fiduciary trust relationship and state-tribal relations.

Roberts would confront these issues, and more, in his role as chief justice. On October 3, the first day of the upcoming term, the court is hearing Wagnon v. Prairie Band Potawatomi Nation, a case that will determine whether the state of Kansas can impose a distribution tax on gasoline sold on reservations.

Roberts would also play a big role in deciding which cases are accepted by the high court. The state of Kansas has already petitioned the court in another sovereignty case involving car tags issued by the Prairie Band Potawatomi Nation.

Two Native Hawaiian cases are also likely to end up before the court. Roberts, as a private attorney, defended Native rights in Rice v. Cayetano, a 2000 case that went against him by a 7-2 vote. It was one of only a handful that he lost.

Regardless of Roberts' experience, tribal leaders are extremely worried about the direction the court has taken in the last 25 years. Abandoning its role as the protector of Indian rights, the justices have slowly eroded the jurisdiction of tribal governments and have favored states in tribal-state disputes.

The court's 2000-2001 term, in which tribes lost 5 out of 6 cases, proved a major turning point, prompting tribes to take a more prominent role in the judiciary. The Tribal Supreme Court Project, an initiative of the National Congress of American Indians and the Native American Rights Fund, began coordinating cases that go, or might go, before the court.

Tribal leaders say the project has been successful. Since its inception in 2001, nearly every Indian law dispute that could have proved detrimental to tribes was rejected by the Supreme Court. Of the handful that were accepted, only one -- Sherrill v. Oneida Nation of March 2005 -- went outright against tribal interests.

That case, decided by an 8-1 vote, signified to many in Indian Country the activist role the court is taking in limiting tribal jurisdiction in favor of states despite laws that back tribal rights. "I just don't understand how this court, in my view, is seeming to legislate by some of their decisions that they're making," Keller George, an Oneida Nation official, told Indianz.Com in an interview.

As the confirmation hearings resume today and continue for the remainder of the week, Roberts is expected to restate his view of the judiciary as a strict interpreter of the law. Senators, in their opening remarks, indicated they would question Roberts on a wide variety of issues.

The hearing starts 9:30am and will be broadcast online [Committee Web Site | Capitol Hearings] by a variety of sources and by C-SPAN [Web Site].

Relevant Documents:
New York Times Day 1 Transcript | Washington Post Supreme Court Blog: Transcripts and More | Goldstein & Howe Supreme Court Blog

Relevant Links:
NARF-NCAI Tribal Supreme Court Project - http://www.narf.org/sct/index.html

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