President Trump's nominee loves beating tribal interests in court

Thursday, August 9, 2018  

An attorney who has defeated tribes in a slew of precedent-setting cases has been tapped by President Donald Trump to serve on a critical federal appeals court, Indian Country Today reports.

Eric D. Miller in fact has secured so many negative judgments that one prominent tribal citizen says his law firm, Perkins Coie, is the go-to for those who want to defeat tribal interests.

“If a jurisdiction wants to fight an Indian tribe, they hire Perkins Coie," Washington State Sen. John McCoy (D), a citizen of the Tulalip Tribes, told ICT.

Miller's specialty appears to be limiting the rights of tribes in gaming-related cases. Of five recent decisions cited by ICT, four were linked to tribal gaming establishments.

One of Miller's biggest victories was the U.S. Supreme Court decision in Lewis v. Clarke. The ruling opened up employees of tribal enterprises to lawsuits, merely for carrying out their duties.

The dispute originated at the casino owned by the Mohegan Tribe in Connecticut. In another case from the state, Miller secured a ruling which opened up the Mashantucket Pequot Tribal Nation to a local government's taxation of slot machines.

Further away in New Mexico, Miller helped the state defeat the Pueblo of Pojoaque not just once but twice. The defeats forced the tribe into signing a Class III gaming compact that requires more of its revenues to go to the state.

Should Miller be confirmed to a spot on the 9th Circuit Court of Appeals, his influence could spread even further across the nation. The court hears a significant number of tribal cases from nine western states, including Washington, where a closely-watched dispute involving the Tulalip Tribes is likely to end up.

Miller is not handling that case, ICT reports. But it bears his calling card -- a local government attempting to impose its will on a tribe through taxation.

Trump nominated Miller to the 9th Circuit on July 13. The White House touted his legal record in making the announcement.

"He has argued more than 60 appeals, including 16 in the Supreme Court of the United States," the administration said of Miller.

Miller has not yet secured a confirmation hearing before the Senate Committee on the Judiciary. He would need to be approved by the panel and then by the full Senate before joining the court.

Tribes historically have not played a role in federal court nominations but that has changed in recent years. In hopes of ensuring their voices are heard, they came out against another Republican nominee more than a decade ago due to his negative record on Indian issues. The nominee was defeated in the Senate.

More recently, tribes supported Neil Gorsuch to serve on the Supreme Court. Many were impressed by his Indian law record when he served on a federal appeals court.

Read More on the Story:
Trump's 9th Circuit Court nominee has record of litigating cases against Tribes (Indian Country Today August 9, 2018)