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Indianz.Com Video: Sen. Alex Padilla (D-California) and Judge Ketanji Brown Jackson
Supreme Court nominee advances with show of support for tribal sovereignty
Tuesday, April 5, 2022

WASHINGTON, D.C. — The nation’s highest court is once again entering a season of significant change with major Indian law cases on the docket and a historic nominee nearing confirmation.

Ketanji Brown Jackson is slated to become the first African American woman to serve on the U.S. Supreme Court. But while she has more than enough votes to win confirmation in the U.S. Senate, her nomination encountered a temporary hurdle on Capitol Hill.

During an executive business meeting on Monday morning, every Republican member of the Senate Committee on the Judiciary refused to support Jackson. The result was an 11-11 vote on her nomination to be as Associate Justice of the Supreme Court.

“Judge Jackson is an outstanding nominee,” Sen. Dick Durbin (D-Illinois), the chair of the committee, said of the Jackson, who currently sits on the D.C. Circuit Court of Appeals, often considered one of the most important in the judicial system. “She has earned support across the political and ideological spectrum. And her qualifications are second to none. Perhaps most importantly, Judge Jackson’s record on the bench is one of evenhandedness.”

“Yet despite this, not a single Republican on the Judiciary Committee voted in favor of her nomination,” Durbin noted.

Sen. Dick Durbin (D-Illinois): Statement on the Successful Discharge Vote for Judge Ketanji Brown Jackson

Still, since Democrats control the Senate, Durbin has been working quickly to bring Jackson and her trailblazing record to a vote. Through a procedural motion known as a discharge petition, the chamber is able to break the deadlock encountered at the committee level.

Sure enough, by the end of the day, the Senate voted 53 to 47 in the early evening to approve the discharge petition. Another procedural vote on Tuesday morning cleared the path for Jackson’s eventual confirmation, likely by the end of the week.

And when Jackson is confirmed, she will have the support of key Republicans, including some with important ties to Indian Country. Sen. Lisa Murkowski (R-Alaska), the vice chair of the Senate Committee on Indian Affairs, plans to vote in favor of the nomination.

“While I have not and will not agree with all of Judge Jackson’s decisions and opinions, her approach to cases is carefully considered and is generally well-reasoned,” Murkowski said in a statement on Monday after holding “multiple in-depth conversations” with the nominee.

Speaking to major issues of concern in Alaska, Murkowski added: “She answered satisfactorily to my questions about matters like the Chevron doctrine, the Second Amendment, landmark Alaska laws, and Alaska Native issues.”

Murkowski was already facing pressure at home in Alaska. Tribal leaders welcomed Jackson’s nomination by President Joe Biden as a significant development for the nation’s highest court, where Indian Country is frequently at the losing end of cases.

“For more than two centuries, the U.S. Supreme Court has had a pivotal role in shaping federal law and policy toward tribal governments and Indigenous people. Judge Jackson is not only an exceptionally qualified nominee, she is an historic nominee,” said President Richard Chalyee Éesh Peterson of the Central Council of Tlingit and Haida Indian Tribes, the largest tribal nation in Alaska.

Sen. Mitt Romney (R-Utah), whose state of Utah includes the Navajo Nation and Goshute, Paiute, Shoshone and Ute tribes, is also going to support Jackson. So is Sen. Susan Collins (R-Maine), whose state of Maine is locked in a tribal sovereignty battle that could end up before the Supreme Court.

“As we sit here today, we have a Supreme Court petition that is a result of what I consider a territorial removal in Maine, deeming that 60 miles of our reservation is no longer our reservation,” Chief Kirk Francis of the Penobscot Nation said at a hearing on Capitol Hill last week.

Jackson was asked about her views on tribal sovereignty during her confirmation hearing in March. She told Sen. Alex Padilla (D-California) that she understands the trust and treaty obligations of the United States government.

“It is established in the law, the Supreme Court has established, that there is a special trust relationship between Indian tribes and the federal government,” Brown said on on March 22, on the second day of her four-day confirmation hearing.

Brown further noted that the U.S. government owes an obligation to tribes that is of a unique fiduciary nature. In Seminole Nation v. United States, the Supreme Court described the duties as “moral obligations of the highest responsibility and trust.”

“Indian tribes are, as a general matter, considered to be sovereigns in the relationship is a sovereign-to-sovereign relationship, but it’s one in which the federal government has some responsibilities related to the Indian nation,” Brown said. “And it’s very, very important care and trust responsibility that the federal government has in terms of making sure that the tribes are recognized in and cared for, in the context of our system.”

The questions from Padilla are significant in light of an Indian law dispute that will be heard by the Supreme Court during its forthcoming term, the one that starts in October. Assuming Jackson is seated by that time, she is going to participate in Haaland v. Brackeen, a closely-watched case that will determine whether tribes can exercise sovereignty over their most precious resource — their children.

The state of California, as a government, has been supporting tribes as they defend the Indian Child Welfare Act from an attack initiated by non-Indians and Republican legal officials. At stake in Brackeen is whether ICWA, which was enacted to prevent Indian children from being separated from their communities, remains the law of the land.

“California is home to the largest Native American population in the country. In fact, more than one in ten Native Americans call California home,” Padilla noted. “California is also home to 109 federally recognized tribes who have a nation-to-nation relationship with the United States.”

“As a Senator from California, I believe that respect for tribal sovereignty is paramount,” Padilla told Jackson at the confirmation hearing.

After California, Oklahoma is home to the second-largest population of American Indians and Alaska Natives. There, the Republican governor is supporting another attack on tribal sovereignty in hopes of undermining a treaty rights victory that was delivered by the Supreme Court less than two years ago.

In McGirt v. Oklahoma, the court confirmed that the reservation promised to the Muscogee Nation by treaty continues to exist as Indian Country. The landmark decision, though split 5-4, was authored by Justice Neil Gorsuch, nominated to the bench by Republican former president Donald Trump.

Despite the ruling, Oklahoma Gov. Kevin Stitt (R), who has frequently portrayed himself as an ally of the one-term president, has coordinated a major attack on tribal sovereignty through dozens of petitions submitted to the Supreme Court. Though most have been rejected, the justices agreed to hear one of the cases, known as Oklahoma v. Castro-Huerta.

A hearing is scheduled for April 22, and Indian Country is closely watching. On Monday, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation, the Muscogee Nation and the Seminole Nation joined forces and submitted a brief that defends their treaty rights from Stitt’s legal assault.

“While Governor Stitt’s attempt to overturn McGirt was rejected, it did not mean an end to our work to protect our rights and sovereignty,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement about the filing.

“The Cherokee Nation’s brief today addresses the flawed arguments in the state of Oklahoma’s suit, which seeks to create chaos in our justice system by upending successful and long-settled law governing Indian Country across the United States,” Hoskin added.

After McGirt, the state of Oklahoma has been barred from prosecuting tribal citizens for crimes committed in Indian Country. Authority rests with the tribes and with the federal government for a wide range of offenses.

With his slew of petitions, Stitt has been attempting to chip away at McGirt. But in agreeing to hear Castro-Huerta, the Supreme Court only intends to consider whether the state of Oklahoma has jurisdiction over non-Indian defendants who commit crimes against Indian victims, in Indian Country.

In their brief, the Cherokee, Chickasaw, Choctaw, Muscogee and Seminole tribes, describe themselves as “willing partners” in efforts to address public safety on their reservations, which represent about 47 percent of the land base in the state of Oklahoma. Chief Hoskin stressed the need to cooperate, rather than litigate, in his statement.

“The best way to truly protect Oklahomans and to support public safety is to work together, as tribes have already been doing with our federal, state and local partners,” he said. “We once again call on Governor Stitt to give up his politically motivated attacks on our sovereignty and work with us to promote what is best for public safety.”

Following the hearing this month, the Supreme Court is expected to issue a decision in Castro-Huerta before the end of its current term, which began in October 2021. Decisions are also expected in two more Indian law cases that were heard in February.

It’s not known how the justices will rule on any of the Indian law disputes. But thanks to Donald Trump, the court now leans more conservative, with Republican-nominated judges holding six out of nine seats. The ideological bent won’t change even after Justice Stephen G. Breyer leaves and Jackson takes his place, pending Senate confirmation.

But the presence of Republican-nominated judges has not been kind for Indian Country. Between 2006 through 2016, tribes lost nine out of eleven cases that went before the court. The era of losses came under Chief Justice John G. Roberts, Jr., who was chosen by GOP former president George W. Bush.

Still, with a new justice on the horizon, tribes and their advocates are committed to making sure their sovereign rights are understood in the federal courts. The National Congress of American Indians, the largest inter-tribal organization, and the Native American Rights Fund, the oldest Indian law firm, are supporting Jackson as she awaits a final vote in the Senate.

“While Justice Jackson has limited experience in federal Indian law, she has expressly acknowledged the ‘sovereign-to-sovereign relationship’ between the United States and Indian tribes and ‘special trust relationship between Indian tribes and the federal government,'” NCAI President Fawn Sharp and NCAI Executive Director John Echohawk said in a letter to the Senate Committee on the Judiciary. “We hope Judge Jackson continues to build on this understanding, especially with the several cases that are coming before the U.S. Supreme Court next term that will impact Tribal Nations.”

“It is critical that Supreme Court justices understand the political status of Tribal Nations and the unique context, history, and application of federal Indian law to support tribal government sovereignty,” the March 28 letter continued. “We welcome the opportunity to further support this engagement and education.”

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