indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Indian Law Online Master Degree - University of Tulsa College of Law
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:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Businesses show support for LNI tournament (3/27)
Lakota Country Times: Oglala Sioux fighter climbing in the ranks (3/27)
Mark Trahant: Alaska Natives look 10,000 years into the future (3/27)
Ivan Star: The influences of boarding school and Vietnam War (3/27)
Gyasi Ross: Funerals become family reunions in Indian Country (3/27)
Tim Giago hands over the reins as publisher of Native Sun News (3/27)
House committee passes Native American Children's Safety Act (3/27)
Bill to benefit Miami Nation moves forward in House and Senate (3/27)
City extended contract to send treated sewage to sacred peaks (3/27)
Oneida Nation welcomes ruling backing land-into-trust request (3/27)
Lawmakers want BIA to delay new federal recognition reforms (3/27)
Another conviction from Chippewa Cree Tribe corruption probe (3/27)
Editorial: Shakopee Tribe contributes $5M for health initiative (3/27)
Opinion: Navajo Nation enacts 'sin tax' on unhealthy products (3/27)
Editorial: Opposition to Pamunkey Tribe recognition 'revolting' (3/27)
Dennis Jenkins: Hypocrisy for new tribal casinos in Connecticut (3/27)
Supreme Court asked to hear Kialegee Tribal Town gaming case (3/27)
Ho-Chunk Nation extends agreement for off-reservation casino (3/27)
Indiana lawmakers seek role in Pokagon Band gaming compact (3/27)
Native Sun News: Oglala Sioux leader not pleased with boycott (3/26)
Lakota Country Times: Lakota Nation Invitational stays in Rapid (3/26)
Native Sun News: Mayor of Rapid City addresses race relations (3/26)
Jane Daugherty: Tribal e-commerce continues to draw scrutiny (3/26)
Witness list for Senate Indian Affairs Committee's field hearing (3/26)
Richard Iron Cloud: Remove murderer's name from sacred peak (3/26)
Native Youth: Bring dental therapy providers to Indian Country (3/26)
Steven Newcomb: Tribal nations still under dominating process (3/26)
Law firm hosts tribes for session on marijuana in Indian Country (3/26)
Judge upholds BIA decision on Oneida Nation land-into-trust bid (3/26)
Appeals court rules against Crow Tribe in housing grant dispute (3/26)
Ho-Chunk Nation raises minimum wage to $2.75 above federal (3/26)
Mishewal Wappo Tribe to appeal decision in recognition lawsuit (3/26)
Racist emails of former Montana federal judge to be preserved (3/26)
Shingle Springs Band considered but rejected indoor gun range (3/26)
House panel backs bill to block Tohono O'odham Nation casino (3/26)
Quapaw Tribe did not include casino on land-into-trust request (3/26)
Chumash Tribe never got apology for diplomat's casino remark (3/26)
Governor won't sign casino compact with Fort Sill Apache Tribe (3/26)
Cherokee Nation approves $6.9M renovation project for casino (3/26)
Native Sun News: Oglala Sioux veteran training for Paralympics (3/25)
Alaska Native musher Chuck Schaeffer completes 2015 Iditarod (3/25)
LTBB News: Michigan tribes come together for historic meeting (3/25)
Lecture focuses on repatriation of tribal intellectual properties (3/25)
Board still working on delivering money for Cobell scholarships (3/25)
Sen. Barrasso to chair field hearing on drugs in Indian Country (3/25)
Bill for tribal marijuana compacts up for hearing in Washington (3/25)
Choctaw Nation chief hopes to travel to Ireland for monument (3/25)
HHS urged to do more to help tribes with foster care programs (3/25)
Eastern Cherokees work to teach language to new generations (3/25)
Another suggestion for Indian woman on $20 bill -- Sakakawea (3/25)
Man from Crow Tribe cites self-defense in fatal casino shooting (3/25)
Shawnee Tribe sees opposition to off-reservation gaming plan (3/25)
Navajo Nation signs Class III casino compact with New Mexico (3/25)
Quapaw Tribe insists a casino isn't focus of Arkansas land plan (3/25)
Suquamish Tribe reaches deal to allow highway work at casino (3/25)
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.