Bush nominee familiar with Indian law
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MAY 9, 2001

Indian Country will see a familiar face on the District of Columbia Circuit Court of Appeals with the nomination of John G. Roberts Jr. to the federal bench.

Roberts, a partner in the Washington, DC, law firm of Hogan & Hartson, is expected to be named to the position by President Bush today. He is one of 11 nominees the President will announce in a special White House ceremony and is part of a larger group that Democrat Senators have vowed to block due to wrangling with Republican leaders.

Political battles aside, Roberts is no stranger to Indian law and has argued two prominent ones before the Supreme Court. The outcomes of both cases were considered blows to tribal sovereignty with Roberts' clients sitting on the winning and losing ends of the stick.

In the first, Roberts' argued on behalf of the state of Alaska in a case challenging tribal sovereignty in Alaska Native villages. Arguing it retained authority over what had been the Venetie Reservation, the Neets'aii Gwich'in Tribe sought to tax a private contractor for construction of a public school in the village of Venetie.

After two lower courts came to opposite conclusions on whether the village was considered "Indian Country," the Supreme Court took up the issue. In a unanimous decision, the Court in 1998 ruled in favor of Roberts' client and held that the tribe had no authority over the land due to the Alaska Native Claims Settlement Act (ANCSA) of 1971.

In the second case, Roberts argued on behalf of the Ben Cayetano, the Governor of Hawaii. Harold "Freddy" Rice, a white private rancher, filed suit against Rice over the state's policy of limiting a vote to Native Hawaiians.

The Supreme Court last year weighed in on the issue and the majority ruled against Roberts' client, saying the policy was barred by the 15th Amendment prohibition on race-based voting. The decision resulted in forcing Hawaii to open voting to all residents, as well as allowing candidates of all races to run for Native Hawaiian affairs positions.

A bill to federally recognize Native Hawaiians is pending in Congress after it failed to pass the Senate last year. The Departments of Interior and Justice recommended the United States establish a government-to-government relationship with Native Hawaiians.

Roberts incidentally lost the Cayetano case to Theodore B. Olson, Bush's pick to be Solicitor General at the Department of Justice.

Should Roberts be confirmed by the Senate to the federal bench, he'd oversee a number of cases affecting tribes and American Indians. Just this past February, the District of Columbia Court of Appeals upheld the landmark trust fund class action lawsuit.

White House spokesman Ari Fleischer yesterday said he hoped Bush's nominations would not become "politicized" due to current debate in the Senate. He also said the American Bar Association would still have a role in evaluating the judges, just not the preferential one the administration eliminated in March.

Rogers has argued more than 30 cases before the Supreme Court, according to his law firm. He was former Principal Deputy Solicitor General in the Justice Department during the Clinton administration, a position he held from 1989-1993.

Bush is also nominating Miguel A. Estrada to the DC Circuit. Estrada is a member of the Gibson, Dunn & Crutcher law firm and is partner to Olson.

Bush Announces Nominees:
Video | Text | White House Factsheet

Get the Alaska v. Venetie Case:
Syllabus | Opinion

Get the Rice v. Cayetano Case:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Nominee Background:
Bush Nominees to Federal Bench (The Washington Post 5/9)

Relevant Links:
District of Columbia Circuit Court of Appeals -
Hogan & Hartson -
Native Hawaiians, Department of Interior -
More on Rice v. Cayetano:

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