Appeals court nominee favored industry over tribes

Thursday, December 18, 2003

The nation's largest inter-tribal organization took the unprecedented step last month of opposing one of President George W. Bush's judicial nominees.

If confirmed by the U.S. Senate, Idaho attorney William G. Myers III would make decisions on a large number of Indian law cases. The 9th Circuit Court of Appeals covers more than 100 tribes in eight Western states, including California. It also hears cases affecting Alaska Natives and Native Hawaiians.

But the National Congress of American Indians (NCAI) says the confirmation "will not be in the best interest of the tribes." Actions taken by Myers as the Department of Interior's top lawyer "show a deep lack of respect and understanding of the unique political relationship between the federal government and tribal governments," a resolution passed at NCAI's annual convention states.

Last month, Myers stepped down as Solicitor of the Interior. It was a post he held since July 2001, when he was confirmed along with several other Bush nominees, including former assistant secretary Neal McCaleb, who resigned a year ago this month amid controversy.

Before he left office, Myers played a role in a number of high-profile Indian cases, including the Cobell v. Norton lawsuit, two tribal trust fund lawsuits that went to the U.S. Supreme Court and several disputes that pitted tribes against the mining industry, which he used to represent in private practice.

On at least three occasions, Myers sided with mining interests. He cleared the way for a proposed gold mine that threatens the sacred sites of the Quechan Nation of California; he worked to lift a ban on drilling near a lake used by several northern California tribes for religious purposes; and he supported a mining company that wants to open a kitty litter plant next to a reservation just across California's border in Nevada.

It was these cases that prompted California tribes to take the lead in registering NCAI's first official opposition to a judicial nominee. The Coyote Band of Pomo Indians introduced the resolution that the organization passed last month. In October, the California Nations Indian Gaming Association (CNIGA), which represents 57 tribes, also voted to oppose Myers.

The Senate Judiciary Committee has yet to schedule a nomination hearing for Myers, who has since rejoined the Boise, Idaho, office of the Holland & Hart law firm. Over the past year, Republicans and Democrats on the panel have been squabbling over some of Bush's more controversial nominees.

The committee did ask Myers to list "the ten most significant litigated matters that you personally handled." In response, Myers named a Supreme Court case involving the Bishop Paiute Tribe of California.

On behalf of the Bush administration, Myers and other government attorneys argued that the tribe did not have a right to sue county law enforcement officials who seized records from the tribe's casino armed with boltcutters. In a unanimous decision in May, the high court agreed.

Myers also listed the Navajo Nation and White Mountain Apache trust cases that were decided by the Supreme Court this year. On behalf of the administration, Myers and other government attorneys argued that the U.S. was not liable for the mismanagement of tribal trust assets without an explicit law. In siding with the Apaches while turning away the Navajos, a majority of justices rejected this defense.

NCAI and the California tribes aren't the only groups opposing Myers. In a letter to the Senate Judiciary Committee this October, a coalition of 23 national environmental organizations accused him of ethical lapses for deciding on matters affecting former clients. The letter also stated that no members of the American Bar Association rated Myers "well qualified" and six or seven rated him "not qualified" to hold a judicial post.

Interior's Inspector General has opened an investigation to determine whether Myers violated his promise to recuse himself from matters affecting former clients. The review is not complete. A separate investigation centers on a settlement Myers' office negotiated with a rancher in Wyoming over the objections of the U.S. Attorney's office there.

Relevant Documents:
NCAI Resolution | Environmental Group's Letter | Holland & Hart Biography