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Miers tells Senate of experience with tribal issues
Wednesday, October 19, 2005

U.S. Supreme Court nominee Harriet E. Miers told a Senate committee on Tuesday that she gained knowledge of Indian law through her work in Texas, whose officials have repeatedly challenged tribal sovereignty.

In a 57-page questionnaire delivered to the Senate Judiciary Committee, Miers cited her tenure as chairwoman of the Texas Lottery Commission. Asked to detail her experience with "constitutional" issues, she said her work dealt with Indian gaming and tribal sovereignty.

"Among the many issues before the commission were questions arising under the Federal Indian Gaming Regulatory Act, which implicates tribal sovereign immunity," Miers wrote in her response.

Beyond the short response in the questionnaire, however, it is not clear how Miers gained knowledge of Indian law. She failed to detail how IGRA or sovereign immunity came up before the commission, much less explain her approach to those issues. The White House didn't return a request for additional comment and clarification yesterday.

That's in marked contrast to Chief Justice John G. Roberts Jr., whose response to the Senate laid out in detail his work with tribal issues. During his confirmation process, he cited direct knowledge of the trust relationship and sovereignty. He also said his work on Native Hawaiian rights was one of his most important cases even though he lost it before the U.S. Supreme Court.

But what is known so far about Miers raises potentially troubling questions about her view of tribal rights. After she was appointed to the lottery by then-governor George W. Bush in 1995, she led the commission in restricting the use of electronic gaming machines.

A decade later, the Bush administration is proposing to impose the same limits on the $19 billion tribal casino industry despite a series of court decisions that favored tribes. The Department of Justice legislation would alter IGRA and the Johnson Act, another important gaming law, in a way that could lead to more litigation -- and possibly end up before the Supreme Court -- tribal representatives have warned.

"We don't think IGRA needs to be amended, since tribes have won five court cases on this issue –- tribes will stress to the DOJ that the foundation for any legislation has be those federal court decisions," said Ernie Stevens Jr., the chairman of the National Indian Gaming Association.

Another potentially troubling aspect of Miers' record involves her passing reference to tribal immunity. During the 1990s, the state of Texas successfully convinced the courts to allow the Tigua Tribe to be sued for operating a casino. The state argued that the tribe waived its sovereign immunity when it regained federal recognition through an act of Congress in 1987.

The 5th Circuit Court of Appeals agreed with the state, leading to the closure of the tribe's successful casino, whose revenues were being used for housing, education, health and other services for tribal members. The Supreme Court later refused to hear the case, and the state used the decision to shut down the casino operated by the Alabama-Coushatta Tribe.

Miers, an attorney by practice, didn't participate in any of those cases, according to a review of court documents. The Lottery Commission wasn't a party to any of the cases either, making it unclear to what extent, if any, she was involved in the decision-making, strategy or handling of the litigation.

By the time the two tribal casinos were shut down in 2002, Miers had already left the commission. In early 2000, she joined Bush's presidential campaign and then went to work at the White House after he won the election later that year.

Minutes of the public meetings that Miers chaired show that the commission occasionally dealt with tribal concerns but nothing specific was ever mentioned. Miers herself rarely spoke about tribes or the Indian gaming industry.

During an August 11, 1999, meeting, Miers asked about "possible action items" regarding the National Gambling Impact Study Commission that was created by Congress. At a February 29, 2000, meeting, she raised the possibility that Internet gaming or "casinos" could be cutting into state lottery revenues.

More recent meetings, however, have been specific with regard to tribal issues. The current commissioners have discussed legislation that would help the Tigua and Alabama-Coushatta tribes and other Indian gaming issues.

Miers is set to go before the Senate for her confirmation hearings early next month. A number of Republicans and conservatives have expressed doubts about her qualifications, citing limited knowledge about her record and views.

Miers Senate Questionnaire:
Text | PDF

Relevant Links:
Texas State Lottery - http://www.txlottery.org
Judicial Nominations, White House - http://www.whitehouse.gov/infocus/judicialnominees