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Roberts cites Indian law work before Supreme Court
Monday, September 19, 2005

On the last day of his Senate confirmation hearings, U.S. Supreme Court nominee John G. Roberts Jr. cited his work in Indian law cases in an attempt to portray himself as open-minded justice who would understand the impact of his decisions.

As an attorney in private practice, Roberts argued two Indian law cases before the high court. In Rice v. Cayetano, he defended the state of Hawaii's Native Hawaiian programs by relying on the federal trust relationship. In Alaska v. Venetie, he argued the relationship no longer existed when it came to trust land in Alaska.

Roberts lost the Native Hawaiian case, leading to a flurry of challenges to Native Hawaiian programs, some of which are likely to end up before the court again. He won the Alaska case, much to the dismay of Native leaders who are still facing challenges to their sovereignty to this day.

Despite seeming to appear on different sides of the debate, Roberts told the Senate Judiciary Committee on September 15 that the work showed that he wouldn't come to the court with pre-conceived politics or notions. "I think there's a great deal in my background that you could look to in that respect," he said when asked about his commitment to a "diverse society" by Sen. Ted Kennedy (D-Massachusetts).

"For example, you could look to the cases in which I argued in favor of affirmative action," he continued. "I've argued on both sides of that issue. In the Rice v. Cayetano case, for example, before the Supreme Court, I argued in favor of affirmative action for Native Hawaiians. I lost that case but I was arguing on the side of affirmative action."

But Kennedy, who opposed one of President Bush's judicial nominees based on objections from tribes, disputed Roberts' characterization. "Well, as you know, in the Hawaiian case, that was not an affirmative action case," he said in response.

In his briefs, Roberts relied more on the political relationship the U.S. has with American Indians and Alaska Natives and argued that it should extend to Native Hawaiians. There was little mention of affirmative action programs, which are based on race. But the court, in a 7-2 decision on February 23, 2000, rejected the trust relationship argument and said a Native-only election was illegal because it was race-based.

Responding to another line of questioning by Kennedy, Roberts then cited the Venetie case and said it showed that he "recognized as a lawyer that these cases have impact on real people and real lives."

"I always insisted when I was a lawyer about getting out into the field and seeing," he testified. "If I was arguing a case involving Native villages in Alaska, I went to the villages."

The visit to Alaska was confirmed by former Alaska attorney general Bruce Botelho, a Democrat who hired Roberts to argue the case. "To prepare for the Venetie case, he flew to Alaska to observe life in the rural areas of our state," Botelho, who is now the mayor of Juneau, said in written testimony to the Senate committee. "He wanted to be able to personally represent the facts to the court rather than to rely upon a second-hand impression acquired from reading about another person's experience."

But according to a September 15 analysis in Indian Country Today, Roberts claimed that Indian people were often "deadly enemies" of state governments in a brief. for the Venetie case. However, this was a misquote of an 1886 Supreme Court decision that noted that states were the "deadliest enemies" of Indians.

Since the decision, state officials have cut funding for law enforcement in villages and have sought to limit tribal court jurisdiction. Some officials claim that tribes in Alaska shouldn't be federally recognized at all.

During oral arguments for the case, Roberts also failed to note the reality of the different types of land holdings in Indian Country. He acknowledged that Pueblo tribes in New Mexico own their land in fee while still retaining the protections of the trust relationship but said he wasn't "aware" of similar situations elsewhere. Tribes in New York have owned their lands in fee and individual Indians can hold restricted titles to their land.

In testimony to the Senate committee, Anne Marie Tallman, the president and legal counsel of the Mexican American Legal Defense and Education Fund, said Roberts' record showed that he wouldn't understand how his views affect "real people." She referred to a 1982 memo that he authored while working at the Justice Department that questioned the legitimacy of the Kickapoo Tribe of Texas. While the Reagan administration supported a bill to recognize the tribe, Roberts said its "provisions seem overly generous" and that the Kickapoos are "generally speaking, Mexican Indians and not American Indians."

Tallman said the Roberts, in the memo, "displayed a pattern of insensitivity and dismissive comments that show a lack of respect for ... the history of the Kickapoo Indian tribe." The bill was signed into law by the late president Ronald Reagan in January 1983.

With the hearings now closed, Roberts is surely headed to confirmation as the 17th chief justice of the United States. The Senate Judiciary Committee, tipped 10-8 in favor of Republicans, is expected to send the nomination to the floor by the end of this week. Debate would occur next week, with a final vote slated by the end of the month.

The Supreme Court's October 2005-2006 term official opens on October 3. The justices will hear arguments in 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.

Justice Sandra Day O'Connor is retiring from the court but previously said she would not leave until a replacement is confirmed. Since the death of former chief justice William H. Rehnquist, she has not publicly stated her plans.

Roberts Records:
Supreme Court Briefs and More

Relevant Documents:
Day 4 Transcript | More Day 4 Testimony on Roberts

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

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