President Obama reaffirms intent to fill vacancy on Supreme Court

Wednesday, February 17, 2016

President Barack Obama, center, meets with the US-ASEAN Business Council in Rancho Mirage, California, on February 16, 2016. Photo from White House / Twitter

President Barack Obama is rejecting calls by Republicans to leave the U.S. Supreme Court without a ninth justice following the death of Antonin Scalia.

Speaking to reporters at a summit in California, Obama said the U.S. Constitution is clear. The job of the president is to nominate a replacement and it's up to the Senate to confirm or reject the nominee, he said.

"There’s no unwritten law that says that it can only be done on off years -- that’s not in the constitutional text," Obama said, according to the Whtie House transcript. "I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there. There is more than enough time for the Senate to consider in a thoughtful way the record of a nominee that I present and to make a decision."

Scalia's passing on February 13 at the age of 79 gives Obama a historic opportunity to reshape the high court's impact in Indian Country. His prior two picks -- Sonia Sotomayor and Elena Kagan -- have shown a willingness to side with tribal interests and a similar nominee could help blunt the negative trend seen under the leadership of Chief Justice John Roberts.

"Since 2006, under John Roberts, there's been 11 Indian cases decided by that court and we have won only two of those cases," John Echohawk, the executive director of the Native American Rights Fund, said at the National Congress of American Indians annual convention last October.

Tribal leaders listen to a presentation about U.S. v Bryant and other Indian law cases at the National Congress of American Indians annual convention in San Diego, California, on October 19, 2015. Photo by Indianz.Com

The stakes are high since the court has a record four Indian law cases on the docket for its current term. Menominee Indian Tribe of Wisconsin v. US already went against the Menominee Nation in a dispute over contract support costs at the Indian Health Service. The decision was unanimous.

Decisions are pending in two more cases. The outcome in Dollar General Corporation v. Mississippi Band of Choctaw Indians will determine whether the courts of the Mississippi Band of Choctaw Indians can hear a lawsuit against a non-Indian who is accused of abusing a minor on the reservation. Arguments were heard on December 7, 2015.

The court heard Nebraska v. Parker on January 20. The outcome will determine whether the reservation of the Omaha Tribe of Nebraska has been diminished. Non-Indians claim their village does not fall within tribal boundaries.

The fourth case is US v. Bryant, a domestic violence case being watched by Native women and their advocates. Briefs are still being accepted and a date for oral arguments hasn't been scheduled.

The justices, who are currently on a break in their schedule, are due to consider petitions in pending cases on Friday. According to the Tribal Supreme Court Project, only one Indian law case is awaiting action at this point -- Jensen v. EXC, Inc., a tribal jurisdiction case involving members of the Navajo Nation.

The petition has been put off since November, according to the docket sheet, likely because the court has yet to issue a decision in the Dollar General case.

Scalia will lie in repose at the court on Friday. A mass and burial take place in Washington, D.C., on Saturday.

The court will hear resume hearing arguments in already accepted cases on Monday, Tuesday and Wednesday.