indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Kill The Tobacco Master Settlement Agreement
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Appeals court judge strikes blows against Indian rights
Monday, May 5, 2008
Filed Under: Cobell | Law | Politics

In just under three years on the bench, one of President Bush's controversial judicial nominees has written negative rulings in three high-profile Indian law cases.

Janice Rogers Brown sits on the D.C. Circuit Court of Appeals, one of the most important in the nation. Besides hearing a significant number of Indian law cases, the circuit is considered a stepping-stone for the U.S. Supreme Court.

Brown, a former California judge, is sometimes mentioned as a possible high court nominee. Going by her rulings, she'd likely fit in with the more conservative justices on the Supreme Court, which has slowly eroded tribal rights over the last two decades.

In the latest case, Brown authored a dissent that struck down key provisions of the Indian Reorganization Act of 1934. She is the only judge among three other circuit courts to rule that the land-into-trust process violates the U.S. Constitution.

The Supreme Court has been asked repeatedly to do the same by a number of states and will hear a land-into-trust case this fall. The justices, however, won't be addressing the constitutionality argument in Carcieri v. Kempthorne.

But Indian gaming opponents plan to use Brown's dissent to revive the issue, which last drew a critique from Justice Antonin Scalia Scalia is among the most conservative members of the high court and said he would have accepted a South Dakota case in 1996 that challenged the constitutionality of the IRA.

Even before the April 29 ruling in Michigan Gambling Opposition v. Kempthorne, Brown was well-known for another negative decision. This time, she wrote the majority opinion in San Manuel Band of Mission Indians v. National Labor Relations Board.

The case overturned 30 years of precedent and subjected tribes and their enterprises to federal labor law. In the February 12, 2007, decision, Brown wrote some sweeping passages about the nature of tribal sovereignty and Indian gaming.

By opening casinos, marketing them to non-Indians and employing non-Indians, tribes are stepping beyond "traditional" notions of self-governance, Brown wrote. She described tribal sovereignty as "far from absolute" and said tribal governments will suffer only a "modest" impact under federal labor law.

"First, operation of a casino is not a traditional attribute of self-government," Brown wrote for the majority. "Rather, the casino at issue here is virtually identical to scores of purely commercial casinos across the country. Second, the vast majority of the casino's employees and customers are not members of the tribe, and they live off the reservation."

The San Manuel Band of Mission Indians declined to ask the Supreme Court to review the case. Labor unions are now using the decision to bolster their attempts to organize at tribal casinos.

After joining the D.C. Circuit in June 2005, Brown was assigned to hear appeals in the Cobell v. Kempthorne trust fund case. She sat on two panels, one of which ended up removing Judge Royce Lamberth, who had repeatedly sided with the plaintiffs, from the long-running lawsuit.

In the first July 12, 2006, ruling, Brown agreed with the majority that Lamberth, a Reagan nominee, lost his impartiality. Although the D.C. Circuit noted that the federal government "remains in breach of its trust responsibilities" to Indian beneficiaries, the decision hasn't stopped the Bush administration from continuing to challenge the plaintiff's victories.

In the second ruling, Brown authored the decision that addressed information technology. Lamberth had ordered the Interior Department to sever its Internet connection in order to protect billions of dollars of trust funds from computer hackers.

Brown, however, lifted the injunction even though the Bush administration didn't challenge the facts behind the disconnection. She ruled that the government and the public were harmed more by the lack of Internet service than Indian beneficiaries.

President Bush nominated Brown to sit on the D.C. Circuit on July 25, 2003. Concerns over her qualifications and rulings in California led Democrats to block her confirmation for two years.

At the time, tribes did not take a position on Brown. They focused on Bill Myers, a 9th Circuit nominee whose actions as Solicitor for the Interior Department put him at odds with sovereignty and the trust relationship.

An agreement between Republicans and Democrats left Myers on the chopping block but Brown was put to a final vote on the Senate. She was confirmed by a 56-43 vote on June 8, 2005.

Sen. Hillary Clinton (D-New York) and Sen. Barack Obama (D-Illinois), the leading Democratic presidential candidates, voted against Brown. Sen. John McCain (R-Arizona), the presumptive Republican pesidential nominee who had brokered the nominee agreement, voted in favor.

Janice Rogers Brown and the D.C. Circuit:
MichGO v. Kempthorne | San Manuel Band v. National Labor Relations Board | Cobell: Lamberth Removal | Cobell: IT Injunction

Related Stories:
Appeal planned in Gun Lake casino land case (5/2)
Gaming opponents seek delay on Gun Lake casino (4/30)
Appeals court backs Gun Lake land-into-trust (4/29)
California tribe loses major sovereignty court case (2/12)
Lamberth's removal a 'fresh start' in eyes of appeals court (7/12)
The day the Supreme Court said no (10/16)



Copyright © Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Lakota Country Times: Rosebud housing program wins top award (12/9)
Native Sun News Today: More tribal citizens sign up for Medicaid (12/9)
Elizabeth Cook-Lynn: Maybe we can learn from our tragic history (12/9)
Mike Myers: What Trump's election means for indigenous nations (12/9)
Bureau of Indian Affairs opens door to big shift in tribal economies (12/8)
Tribes promise fight against Dakota Access ahead of court hearing (12/8)
Tribes bringing #NoDAPL battle to international human rights forum (12/8)
Dakota Access Pipeline disputes small fine for disturbing tribal site (12/8)
Harold Frazier: 'Wopila tanka' to all the #NoDAPL water protectors (12/8)
Native Sun News Today: Temporary win on Dakota Access Pipeline (12/8)
Lakota Country Times: Arrests made in fatal Pine Ridge shootings (12/8)
Native Sun News Today Editorial: A bumpy ride with Donald Trump (12/8)
Delphine Red Shirt: We must step up and take care of our children (12/8)
James Giago Davies: Obama could have stopped #NoDAPL abuses (12/8)
Steven Newcomb: 'Unjust' war against #NoDAPL water protectors (12/8)
Keweenaw Bay Indian Community starts work on casino upgrades (12/8)
Seminole Tribe still shares gaming revenue despite lack of compact (12/8)
Chukchansi Tribe finally distributes $1.4M in overdue gaming funds (12/8)
Tribal sovereignty foe slated to join Donald Trump's administration (12/7)
Rep. Markwayne Mullin denies speculation of 'privatizing' tribal land (12/7)
Sen. Barrasso passing on gavel at Senate Indian Affairs Committee (12/7)
North Dakota county wants 'Sheriff Kirchmeier' account off Twitter (12/7)
Indian Health Service plans to award $1.4M in Native youth grants (12/7)
Rosalyn R. LaPier: How Standing Rock became a site of pilgrimage (12/7)
Lakota Country Times: North Dakota county sheriff hit with lawsuit (12/7)
Vi Waln: The #NoDAPL movement reminds them we are still here (12/7)
Native Sun News Today: Lakota artist designs 'Water is Life' tipi (12/7)
Ivan Star Comes Out: The lust for oil and the #NoDAPL movement (12/7)
Common Dreams: Veterans ask for forgiveness at Standing Rock (12/7)
Tiffany Midge: Don't shame Standing Rock Sioux Tribe for pipeline (12/7)
Editorial: A 'false victory' on the Dakota Access Pipeline easement (12/7)
Nick Zaiac: Let tribes decide what to do with their own homelands (12/7)
Redding Rancheria 'excited' about bid to move casino to new site (12/7)
Aquinnah Wampanoag Tribe defends right to use land for gaming (12/7)
Dakota Access resumes push to complete final portion of pipeline (12/6)
Dave Archambault: It's time for water protectors to return home (12/6)
Kirk Francis: Tribes must remain vigilant despite #NoDAPL victory (12/6)
Tracy Loeffelholz Dunn: Numbers behind Standing Rock's victory (12/6)
Supreme Court schedules oral argument in tribal immunity case (12/6)
Congress passes long-awaited land bills for two tribes in Oregon (12/6)
USDA awards first $10M loan to help consolidate Indian land base (12/6)
Native Sun News Today: Lone Indian Republican wins in Montana (12/6)
Lakota Country Times: New rule curbs waste of tribal resources (12/6)
Clara Caufield: Indian Country in good hands with young leaders (12/6)
Non-Indian gaming firm fighting Wilton Rancheria casino project (12/6)
Chukchansi Tribe casino dispute leads to lawsuits in federal court (12/6)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.