Cobell | Law | Politics

Appeals court judge strikes blows against Indian rights

Monday, May 5, 2008

In just under three years on the bench, one of President Bush's controversial judicial nominees has written negative rulings in three high-profile Indian law cases.

Janice Rogers Brown sits on the D.C. Circuit Court of Appeals, one of the most important in the nation. Besides hearing a significant number of Indian law cases, the circuit is considered a stepping-stone for the U.S. Supreme Court.

Brown, a former California judge, is sometimes mentioned as a possible high court nominee. Going by her rulings, she'd likely fit in with the more conservative justices on the Supreme Court, which has slowly eroded tribal rights over the last two decades.

In the latest case, Brown authored a dissent that struck down key provisions of the Indian Reorganization Act of 1934. She is the only judge among three other circuit courts to rule that the land-into-trust process violates the U.S. Constitution.

The Supreme Court has been asked repeatedly to do the same by a number of states and will hear a land-into-trust case this fall. The justices, however, won't be addressing the constitutionality argument in Carcieri v. Kempthorne.

But Indian gaming opponents plan to use Brown's dissent to revive the issue, which last drew a critique from Justice Antonin Scalia Scalia is among the most conservative members of the high court and said he would have accepted a South Dakota case in 1996 that challenged the constitutionality of the IRA.

Even before the April 29 ruling in Michigan Gambling Opposition v. Kempthorne, Brown was well-known for another negative decision. This time, she wrote the majority opinion in San Manuel Band of Mission Indians v. National Labor Relations Board.

The case overturned 30 years of precedent and subjected tribes and their enterprises to federal labor law. In the February 12, 2007, decision, Brown wrote some sweeping passages about the nature of tribal sovereignty and Indian gaming.

By opening casinos, marketing them to non-Indians and employing non-Indians, tribes are stepping beyond "traditional" notions of self-governance, Brown wrote. She described tribal sovereignty as "far from absolute" and said tribal governments will suffer only a "modest" impact under federal labor law.

"First, operation of a casino is not a traditional attribute of self-government," Brown wrote for the majority. "Rather, the casino at issue here is virtually identical to scores of purely commercial casinos across the country. Second, the vast majority of the casino's employees and customers are not members of the tribe, and they live off the reservation."

The San Manuel Band of Mission Indians declined to ask the Supreme Court to review the case. Labor unions are now using the decision to bolster their attempts to organize at tribal casinos.

After joining the D.C. Circuit in June 2005, Brown was assigned to hear appeals in the Cobell v. Kempthorne trust fund case. She sat on two panels, one of which ended up removing Judge Royce Lamberth, who had repeatedly sided with the plaintiffs, from the long-running lawsuit.

In the first July 12, 2006, ruling, Brown agreed with the majority that Lamberth, a Reagan nominee, lost his impartiality. Although the D.C. Circuit noted that the federal government "remains in breach of its trust responsibilities" to Indian beneficiaries, the decision hasn't stopped the Bush administration from continuing to challenge the plaintiff's victories.

In the second ruling, Brown authored the decision that addressed information technology. Lamberth had ordered the Interior Department to sever its Internet connection in order to protect billions of dollars of trust funds from computer hackers.

Brown, however, lifted the injunction even though the Bush administration didn't challenge the facts behind the disconnection. She ruled that the government and the public were harmed more by the lack of Internet service than Indian beneficiaries.

President Bush nominated Brown to sit on the D.C. Circuit on July 25, 2003. Concerns over her qualifications and rulings in California led Democrats to block her confirmation for two years.

At the time, tribes did not take a position on Brown. They focused on Bill Myers, a 9th Circuit nominee whose actions as Solicitor for the Interior Department put him at odds with sovereignty and the trust relationship.

An agreement between Republicans and Democrats left Myers on the chopping block but Brown was put to a final vote on the Senate. She was confirmed by a 56-43 vote on June 8, 2005.

Sen. Hillary Clinton (D-New York) and Sen. Barack Obama (D-Illinois), the leading Democratic presidential candidates, voted against Brown. Sen. John McCain (R-Arizona), the presumptive Republican pesidential nominee who had brokered the nominee agreement, voted in favor.

Janice Rogers Brown and the D.C. Circuit:
MichGO v. Kempthorne | San Manuel Band v. National Labor Relations Board | Cobell: Lamberth Removal | Cobell: IT Injunction