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NCAI's Hall stresses sovereignty in high court debate
Wednesday, July 13, 2005

As President Bush met with Senate leaders on Tuesday to discuss a replacement for retiring U.S. Supreme Court Justice Sandra Day O'Connor, a key Indian leader said the nominee should understand and support tribal sovereignty.

Tex Hall, the president of the National Congress of American Indians, said tribes plan to play a role in the selection and confirmation of a new justice. The tribal Supreme Court Project is currently working on advancing a nominee for the high court, he said.

"The time clock is running," Hall said in an interview in Washington, D.C., yesterday.

The White House has been mum on a potential replacement and Bush has cast a wide net in meeting with Republicans as well as Democrats in the Senate. Dozens of names have popped up since O'Connor announced her retirement on July 1 but the president is not rushing to make a decision.

The deliberations give tribes a chance to make their views known. "We really need somebody who understands Indian Country and we'd like to pose our own [pick]," Hall said.

But if Bush goes with someone else, Hall said tribes should work with the Senate to ensure that the nominee has an understanding of sovereignty, taxation, jurisdiction and other legal issues facing tribes in the courts. He cited a number of recent Supreme Court decisions that he said have eroded the ability of tribes to exercise their rights and develop economies.

The stakes remain high because the new justice will have a chance to rule on the upcoming case of Kansas v. Prairie Band Potawatomi Nation, No. 04-631 [Docket Sheet]. The state is trying to impose a distribution tax on gasoline sold on the reservation.

"This issue is huge for Indian Country right now," Hall said of the Potawatomi case. Oral arguments have not yet been scheduled but will occur during the court's October 2005-2006 term.

Historically, tribes have not played a role in the judicial nominations process largely because the courts -- particularly the Supreme Court -- were seen as a place to seek final justice. But that has changed within the last 25 years as tribes have lost a series of critical cases.

A string of negative rulings during the 2000-2001 term prompted NCAI, in conjunction with the Native American Rights Fund, to form the Supreme Court Project. Participants have focused mostly on monitoring cases and drafting briefs but their work took on a higher profile when NCAI, NARF and numerous tribes and Indian organizations took a stand against a court nominee for the first time in history.

The opposition put a unique spin on the process as Senate Democrats cited tribal views in their successful campaign against William G. Myers III, a former Interior Department solicitor who was tapped for a spot on the 9th Circuit Court of Appeals, which hears a large number of Indian law cases.

Throughout the controversy, even other nominees began citing their tribal-related work as they went before their confirmation hearings. Two of those picks -- John G. Roberts Jr. and Jeffrey Sutton -- worked with the Supreme Court project on an informal and formal basis and were eventually seated on the bench after lengthy fights.

In writing about Sutton, a Supreme Court project lawyer once said that he "did not simply want to work on the matter for the small amount of compensation it would bring him ... but that he instead had a genuine interest in understanding why Native American tribes have fared as poorly as they have in front of the Supreme Court in recent years, and in trying to help improve that record."

Those kinds of views should be examined as the next Supreme Court nominee undergoes questioning, Hall said. "Your character and your values determine a lot of the philosophy behind their decisions," he said. "Do they understand federal Indian law and is it important to them? Is it part of their character and part of their values?

"That is essential for them to make good, unbiased decision," said Hall, who also serves as chairman of the Mandan, Hidatsa and Arikara Nation of North Dakota.

Republicans say Bush has already contacted or consulted more than 60 senators about a replacement for O'Connor, who will leave once someone is confirmed to the high court. An announcement could come by the end of the month with hearings anticipated in September. The court's October 2005-2006 begins in October.

Relevant Links:
NARF-NCAI Tribal Supreme Court Project - http://www.narf.org/sct/index.html

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