Turtle Talk: Sen. Franken and federal Indian law
"It looks like Sen. Al Franken of Minnesota is the only Democratic member of both the Judiciary and Indian Affairs committees. Sen. Franken, who visited Indian Country a few times in his campaign for the Senate, may be the only Senator who would even consider asking Judge Sotomayor a question about Indian law.
A straight up question about Indian law doctrines is likely to get a response about how the nominee would not comment on a particular case, and a question asking her what she knows about Indian law might do nothing except embarass her, so here are a few potential topic areas that could get at how the nominee might view tribal interests.
1. Federalism. Would she be persuaded by a canon of statutory construction that would construe very narrowly a law that limits state authority? Does she think the Constitution establishes a hierarchy of sovereigns, with state governments at the virtual top?
2. Minority property rights. Is Judge Sotomayor aware of how the U.S. acquired sovereignty over Puerto Rico, or New Mexico and California, or Indian Country east of the Mississippi, or Indian Country west of the Mississippi? How about the different character of treaties that both established and preserved property rights for discreet catagories/classes of Americans? Would she respect them? One expects the answer to the Puerto Rico question is yes.
3. Rule of Law. Tribal interests, like many other plaintiffs, raise claims based on clear violations of law by state or other actors. The Roberts Court often reaches outcomes rejecting those claims by relying on arguments never or only partially presented by the parties, often creating entirely new law to undermine the claims. Would Judge Sotomayor respect the rule of law in these contexts? Under what circumstances would she be willing to go beyond the arguments of the parties to decide a case?"
Get the Story:
A Call to Senator Al Franken re: Sotomayor Confirmation Hearings
(Turtle Talk 7/13)
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