Democrats warn of 'termination of tribal nations' as Trump nominee lands spot on key court

Tuesday, February 26, 2019  

By Acee Agoyo

Democrats are sounding the alarm after Republicans approved a Trump nominee for a lifetime spot on a key federal appeals court despite objections from Indian Country.

By a vote of 53-46 the Senate on Monday evening confirmed attorney Eric Miller to the 9th Circuit Court of Appeals. The action came after a slew of Democrats -- citing opposition from tribes across the nation -- warned of the nominee's negative record on Indian law and policy.

"He has spent much of his career fighting against the interests of tribal governments and tribal sovereignty," Sen. Maria Cantwell (D-Washington) said in a speech in the morning that led off the Democratic assault.

"He has argued against tribal fishing rights, challenging tribal sovereignty, and fighting against the protection of Native American religious and traditional practices," added Cantwell, a member of the Senate Committee on Indian Affairs who was the first woman to serve as its chair.

In case after case, Miller represented numerous clients who have worked to undermine tribal rights in a number of key areas. Sen. Dick Durbin (D-Illinois), the second highest-ranking Democrat in the Senate, said his professional biography looks like a hit list against Indian Country's interests.

"His law firm website touts his record -- with over half of his private practice achievements coming at the expense of tribal governments," said Durbin, who serves on the Senate Committee on the Judiciary. 'Given his strong preference for clients who oppose tribes, there are considerable questions about whether he would be fair in hearing cases regarding tribal rights."

Later in the day, Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, went further in discussing those doubts. Calling Miller's views "one-sided and extreme," he said they would "lead to the termination of tribal nations" if he adopted them as a member of a court that decides cases affecting more than 400 tribes in several Western states.

"His history of advocating against tribal interests does not give me confidence that he would be a fair and impartial jurist on the 9th Circuit Court of Appeals when tribes come before him," said Udall.

Concerns also centered on the unusual manner in which Republicans have handled the nomination. They did not hold a confirmation hearing for Miller this year, instead advancing him on a party-line vote at a Judiciary committee meeting earlier this month, only two weeks after President Donald Trump submitted him to the Senate in late January.

Miller, however, has appeared before the committee -- at a hearing that took place during a recess period last October, when almost every member was away from Washington. That also happened to be the same week of the 75th annual convention of the National Congress of American Indians, whose leadership was forced to adopt an "emergency resolution" as they met in Colorado for their milestone event.

"We must do all we can to prevent anti-sovereignty judges from rising up through the ranks," NCAI President Jefferson Keel said at the historic meeting of the largest inter-tribal advocacy organization in the U.S.

NCAI was joined by the Native American Rights Fund, the largest Indian law and policy organization in the U.S., in urging key lawmakers last year to reject Miller due to his record on tribal rights. But if they were looking for assurances that he wouldn't turn his private views into precedents for their governments and peoples, they didn't get any this week.

The Senate just voted 53-46 to confirm Eric Miller to the 9th Circuit Court of Appeals despite objections from Indian Country. Sen. Tom Udall (D-NM), one of several Democrats who spoke out, said Miller's work as an attorney would "lead to the termination of tribal nations." pic.twitter.com/julxD8XqJ7

— indianz.com (@indianz) February 26, 2019

As Republicans brought up Miller for an initial procedural vote, only one of them spoke about his background and qualifications. On Tuesday, all were silent before the final vote.

"His record of public service at the Justice Department and in private practice reflects a legal mind of the highest," Sen. Mitch McConnell (R-Kentucky), the Republican majority leader in the chamber, said of Miller on Monday. In total, he devoted just six sentences to the nomination in his remarks.

The lack of focus was apparent during Miller's hearing last October. Only two GOP members of the Senate were there, and they only spent a few minutes going over his record.

In front of the nearly empty crowd, Miller said his private work would not influence his rulings. “It’s a foundational principle of Indian law that tribes have an independent sovereignty that pre-exists the Constitution,” he told the committee.

And in written responses, Miller repeated some of those same principles, saying they have already been settled by the courts. Though he acknowledged that his efforts against tribal interests "appears long" he downplayed the significance of it resembling any sort of hit list against Indian Country.

He told the committee that "it is worth noting that the list below — which appears long in part because it includes the same case listed several times —represents a small fraction of the matters I have handled during my time in private practice, which itself has been significantly less than half of my legal career."

But Miller's work has had widespread ramifications. His biggest victory to date was the U.S. Supreme Court decision in Lewis v. Clarke, which opened up employees of tribal enterprises to lawsuits, merely for carrying out their duties.

Lewis v. Clarke was cited as precedent as recently as last week, with a district court ruling that opened officials of Salish Kootenai College, an arm of the Confederated Salish and Kootenai Tribes, to a lawsuit alleging fraud. Previously, the case went on appeal to the 9th Circuit -- the same court where Miller is now headed.

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. Those wins forced the tribe into signing a Class III gaming compact that requires more of its revenues to go to the state.

With a seat on the 9th Circuit, Miller's 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 taxation dispute involving the Tulalip Tribes is likely to end up after a negative ruling from the district 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 to the 9th Circuit 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 the 10th Circuit Court of Appeals.

Thumbnail photo of James R. Browning Courthouse in San Francisco, California, by Ken Lund

AUDIO: Sen. Maria Cantwell on Trump nominee and tribal sovereignty (February 26, 2019)
Cronkite News: Trump nominee defends Indian law record at nearly empty hearing (October 30, 2018)
Tribal officials, Democrats push back on 9th Circuit judicial nominee (October 23, 2018)
President Trump's nominee loves beating tribal interests in court (August 9, 2018)
Supreme Court hears argument in lone Indian law case on docket (January 9, 2017)