Matthew Fletcher: Sotomayor's difference

Law | Opinion

Friday, August 14, 2009

"Indian Country is celebrating the confirmation of Justice Sonia Sotomayor to the United States Supreme Court – and rightfully so. But those observers hoping for a quick turn-around of the Supreme Court’s pitiless assault on tribal interests as evidenced by cases like Carcieri v. Salazar, United States v. Navajo Nation, and Plains Commerce Bank v. Long Family Land and Cattle Co. may be disappointed.

Justice Sotomayor is just one vote, and replacing Justice Souter’s vote would not have made a difference in the outcomes of any of the cases mentioned above, or literally any Indian law case since Souter began on the court. Moreover, Justice Sotomayor is not a guaranteed vote for tribal interests, though there is good reason to think she will be more sympathetic of the legal arguments made by tribal advocates. As a judge on the Second Circuit, she heard very few Indian law cases, and none involving a hotly-disputed subject. As such, she could be considered a kind of blank slate on Indian law issues.

Justice Sotomayor will be only the third racial minority and the third woman on the Supreme Court. Importantly, she will be the first minority justice with an inkling about the special property and political rights of certain minority groups – in her case, the people of Puerto Rico, home of the Taíno indigenous peoples.

In some ways, American Indians and Puerto Ricans have much in common. Neither group wants complete integration into the American polity, preferring an existence on the fringes of the United States. And both groups have long existed on the fringes of the American constitutional mainstream. Her knowledge and experience may help to shake up the mentality and presuppositions of the rest of the justices, who seem a bit surprised and annoyed that Native people don’t want to give up their separate political and ethnic identities."

Get the Story:
Matthew L.M. Fletcher: Sotomayor could make a difference (Indian Country Today 8/14)