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Myers not included in compromise on Bush judges
Tuesday, May 24, 2005

Controversial Bush judicial nominee Bill Myers will not receive a Senate vote under a compromised reached by a bipartisan group of lawmakers on Monday.

The deal announced by 14 senators from both parties is aimed at ending a stalemate over Bush's stalled picks. Republicans were threatening to change the Senate rules to prevent Democrats from using filibusters to block any nominees.

"We have reached an agreement to try and avert a crisis in the U.S. Senate and pull the institution back from a precipice that would have had, in the view of all 14 of us, lasting impact, damaging impact on our institution," said Sen. John McCain (R-Arizona), a leader of the negotiations and the chairman of the Senate Indian Affairs Committee.

But the group made "no commitment" on Myers, a nominee for the one of the most important appeals courts in Indian Country. Tribes and tribal organizations have led the fight against the Interior Department's former solicitor, citing his record on sacred sites, sovereignty and the trust relationship.

"Mr. Myers' disregard for federal law affecting Native sacred places shows he is unable to fairly and impartially apply the law," said National Congress of American Indians President Tex Hall earlier this month. "His confirmation would be devastating to all Indian tribes because of the large number of Indian law cases heard by the Ninth Circuit Court of Appeals."

Also left out of the compromise is Henry Saad, a judge from Michigan who is nominated for a spot on the 6th Circuit Court of Appeals. The court hears cases affecting more than a dozen tribes in Michigan but has not played a significant role in Indian law cases.

The lawmakers, however, said they will allow votes on three appeals court nominees. They are: California Supreme Court Justice Janice Rogers Brown for the D.C. Circuit; Texas Supreme Court Justice Priscilla R. Owen for the 5th Circuit and former Alabama attorney general William Pryor Jr. for the 11th Circuit.

All three courts have heard some significant Indian law disputes. Most notable is the D.C. Circuit, which handles the Cobell v. Norton trust fund suit and cases resulting from actions by agencies like the Bureau of Indian Affairs.

The 5th Circuit has consistently ruled against tribes in Texas, Louisiana and Mississippi on gaming and sovereignty. The 11th Circuit has a mixed record on tribes in Florida and Alabama on the same issues.

Of the appeals courts, the 9th Circuit is viewed as one of the most critical. It hears cases affecting more than 100 tribes in nine Western states, more than 200 tribes in Alaska and Native Hawaiians in Hawaii.

In recent years, the court has favored tribes on a broad range of issues but it is criticized by conservatives who claim the judges interpret the law too liberally. Democrats and their allies say the nomination of Myers is an attempt to change the face of the judiciary.

The dispute has an impact on Indian Country because most of the favorable tribal rulings in the 9th Circuit are appealed to the U.S. Supreme Court. The Nevada v. Hicks case, considered by tribal leaders to be one of the most important in recent years, was reversed by the high court after the 9th Circuit ruled that a state raid of a tribal gaming facility violated tribal sovereignty.

Tribal leaders charged that Myers' handling of matters involving tribes in the 9th Circuit was a direct attack on their rights. He failed to consult the Quechan Nation before reversing a legal opinion that had blocked mining on the tribe's most important site in California.

However, Myers acknowledged that he met with the mining company, although he changed his explanation in two different Senate confirmation hearings. His strict view of the dispute was later slammed by a federal judge.

Myers also intervened in a mining dispute affecting the Reno Sparks Indian Colony in Nevada. The tribe and its non-Indian neighbors banded with local officials to oppose a round-the-clock kitty litter mine proposed on land next to the reservation.

Over the tribal and local objections, Myers submitted a legal brief backing the mining company's right. A judge eventually rejected the argument.

Myers, whose nomination was filibustered last year by Democrats, left the Interior Department in November 2003 after two years as solicitor. He rejoined the law firm of Holland & Hart, where he works in the Boise, Idaho, office.

Relevant Documents:
Inspector General Letter | NCAI Resolution | Environmental Group's Letter | Holland & Hart Biography

Indianz.Com Profile:
Industry insider named to Interior (March 30, 2001)

From the Indianz.Com Archive:
Myers reversing sacred site opinion (10/25)
Bush nominee has no 'agenda' on Clinton decisions (6/21)

Relevant Links:
Judicial nominees, Department of Justice site - http://www.usdoj.gov/olp/judicialnominations.htm

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