A conservative appellate court judge with significant experience in Indian law was nominated as the 109th U.S. Supreme Court justice on Wednesday.
John G. Roberts Jr., an attorney who is well known in Washington legal circles, was introduced to the nation at a 9pm White House briefing. "He's a man of extraordinary accomplishment and ability," President Bush said with the nominee at his side. "He has a good heart. He has the qualities Americans expect in a judge: experience, wisdom, fairness, and civility."
"He has profound respect for the rule of law and for the liberties guaranteed to every citizen," Bush continued. "He will strictly apply the Constitution and laws, not legislate from the bench."
Roberts, 50, had few words of his own but noted that he is no stranger to the place he will call home once confirmed by the Senate. As an attorney with the Hogan & Hartson firm, he argued more than 30 cases before the nation's highest court.
"I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court," he observed, "and I don't think it was just from the nerves."
One of those cases was considered a major blow to tribal rights. On behalf of the state of Alaska, he argued that Alaska Natives lacked sovereign authority over their village lands due to the Alaska Native Claims Settlement Act (ANCSA) of 1971.
"[A]ccordingly, the village is not sovereign over the land and lacks authority to tax non-members doing business upon it," he wrote in a brief for Alaska v. Venetie
, No. 96-1577.
In a unanimous opinion, the justices agreed with Roberts and held that Congress in passing ANCSA, "clearly" extinguished reservations in Alaska and the sovereignty associated with them. The ruling is still cited by some Republicans in Alaska for their belief that there are no federally recognized tribes in the state except for one that was exempted from ANCSA. The U.S. recognizes more than 220 tribes in Alaska.
In a second case, Roberts was on the other side of the Native rights debate. This time, he represented the state of Hawaii and defended an election that was restricted to Native Hawaiians.
Roberts argued that Native Hawaiians have historically been
treated like American Indians and Alaska Natives. Programs
that benefit Native Hawaiians should be viewed in light of
the special trust relationship, he said in Rice v. Cayetano
This time, the justices rejected the theory and
held that the Native Hawaiian-only election violated the
constitutional rights of non-Natives.
The decision have opened up other programs to non-Natives
and led to a still-ongoing battle over a bill that
would treat a Native Hawaiian governing entity much
in the same manner as U.S. tribes.
case was brought up during Roberts'
January 29, 2003, confirmation hearing for the
D.C. Circuit Court of Appeals.
It was cited as proof that Roberts, as an experienced
lawyer, represented a wide range of clients on diverse
subjected and that he wouldn't base his judicial
decisions on any personal views he might hold.
"I found that particularly
gratifying because it indicated that they thought my abilities
were such that I would be able to represent them effectively,
and certainly wouldn�t be dissuaded in any way by any political
considerations," he told the Senate Judiciary Committee.
Roberts was later confirmed to the D.C. Circuit on May 8, 2003,
an important court in terms of Indian law. It hears
the Cobell v. Norton trust fund case and dozens of other
tribal rights cases that deal with actions by federal
But Roberts hasn't written any opinions in any of those cases, much less sat on a panel that decided them. The only exception is Roseville v. Norton
in which the court upheld the Interior Department's acquisition of non-reservation land for a California tribe that opened a casino. Roberts sat on the panel but didn't write the ruling.
Despite his legal achievements, the lack of a voluminous record extends further back in Roberts' career. In addition to being a lawyer in private practice, he served as the principal deputy solicitor general from 1989 to 1993 in the first Bush administration, a key position in an office that helps decide which cases go to the Supreme Court.
During this time, important cases like Duro v. Reina
, No. 88-6546, which held that tribes lack inherent criminal jurisdiction over Indians of other tribes, went before the court but Roberts' name doesn't appear on the Department of Justice's briefs, according to a preliminary search of documents from that period. Duro
was largely overturned by US v. Lara
No. 03-107, which held that Congress can recognize that tribes have sovereignty over members of other tribes.
Prior to working at the Department of Justice, Roberts was an aide to former Reagan administration attorney general William French from 1981 to 1982. He also served as a law clerk to Judge Henry J. Friendly of the 2nd Circuit Court of Appeals and later for Chief Justice William H. Rehnquist, who was
then an associate justice.
Bush pressed the Senate last night for a speedy, civil and respectful consideration of his nominee.
He said Roberts should be seated in time for the Supreme Court's October 2005-2006 term,
in which he would help decide a significant Indian taxation case and another one that could affect
Native religious freedoms.
The Senate Judiciary Committee, dominated by a 10-8 Republican majority, is responsible for holding the confirmation hearings. Republicans praised the selection while Democrats promised an extensive look into the nominee's background.
Get the Alaska v. Venetie
Get the Rice v. Cayetano
| Concurrence (Breyer)
Federal Judicial Nominees, DOJ - http://www.usdoj.gov/olp/nominations.htm
NARF-NCAI Tribal Supreme Court Project - http://www.narf.org/sct/index.html