indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Jobs at the Bureau of Indian Education
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:
Wrapup from National Congress of American Indians DC meeting (2/27)
Native Sun News: Rapid City leader calls for tax on alcohol sales (2/27)
Mark Trahant: Beautiful trend emerges with power of Native vote (2/27)
Ivan Star: Lakota traditional history tells the true untold stories (2/27)
Audio: House Appropriations Committee hearing on BIA budget (2/27)
Senate Indian Affairs Committee to hold hearing on irrigation bill (2/27)
National Indian Gaming Commission choice gets another hearing (2/27)
Kevin Abourezk: Omaha language advocate passes on at age 58 (2/27)
Gyasi Ross: Yawna Allen shares her Native and African ancestry (2/27)
Frank Hopper: Alaska Native Brotherhood was about resistance (2/27)
Stanley Heller: Don't forget the Sand Creek Massacre in Colorado (2/27)
Cherokee Nation chief faces at least four challengers in election (2/27)
BIA and DOJ seek to mediate Cayuga Nation leadership dispute (2/27)
Non-Indians guilty for hunting incidents on Montana reservation (2/27)
Man from Te-Moak Tribe pleads guilty to voluntary manslaughter (2/27)
Administrator for Alaska tribe cuts her position out of the budget (2/27)
Opinion: Find common ground on Indian mascots in Connecticut (2/27)
Hannahville Indian Community starts $8M casino expansion work (2/27)
Wilton Rancheria still waiting for BIA movement on casino project (2/27)
Lytton Band paid $4.6M to use land as parking for Class II facility (2/27)
Opinion: Menominee Nation might turn to tokers instead of poker (2/27)
Opinion: Poarch Creeks come with slot machines and marijuana (2/27)
Updates from National Congress of American Indians meet in DC (2/26)
Native Sun News: Rosebud Sioux Tribe leader sidelined by council (2/26)
James Giago Davies: Native activism must embrace all relations (2/26)
Donna Ennis: Obama budget supports tribal self-determination (2/26)
Rich Winter: Let's keep Lakota Nation Invitational in Rapid City (2/26)
Oglala Sioux Tribe wants Lakota Nation Invitational out of Rapid (2/26)
Former Sisseton Wahpeton chairman joins marijuana company (2/26)
Hoopa Valley Tribe places marijuana referendum on April ballot (2/26)
Blog: Firm saves billions by exploiting Native 'loophole' at FCC (2/26)
Klamath Tribes aid investigation into stolen artifacts in Oregon (2/26)
Alaska Native community still waiting on funding for relocation (2/26)
Alaska Native lawmaker in hospital after emergency at capitol (2/26)
Elise Patkotak: Alaska must acknowledge high rate of violence (2/26)
Mishewal Wappo Tribe waits for decision in recognition lawsuit (2/26)
Muscogee Nation seeks 5000 workers for big casino expansion (2/26)
Little River Band expects wait for $180M off-reservation casino (2/26)
Northern Arapaho Tribe plans to open casino food court in May (2/26)
Cherokee Nation promotes citizen to manager of $80M casino (2/26)
Tribes share nearly $16M in casino revenues with New Mexico (2/26)
Connecticut tribes face threat from casinos in Massachusetts (2/26)
Updates from National Congress of American Indians meeting (2/25)
Native Sun News: Artist Del Iron Cloud wins top award at show (2/25)
Witness List: Senate Indian Affairs Committee budget hearing (2/25)
Steve Russell: Cherokees learned discrimination from colonists (2/25)
Mary Pember: Tlingit masks appraised on 'Antiques Roadshow' (2/25)
Julianne Jennings: Keep talking about race in American history (2/25)
Bill to create day to honor late Elouise Cobell stalls in Montana (2/25)
Washington tribes head to trial in dispute over fishing grounds (2/25)
Mobile dental clinic takes service to Navajo Nation communities (2/25)
Shingle Springs Band gun range draws questions from neighbors (2/25)
NCPR: St. Regis Mohawk Tribe continues land claim negotiations (2/25)
Opinion: Oklahoma attempts to rewrite role of Whites in history (2/25)
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.