Indian Times
7:30 pm
Fri September 27, 2013

NARF And NCAI Advise Tribes To Stay Away From Supreme Court

The relationship between the Supreme Court of the United States and Native Americans has a rocky history and recent rulings have not gone the way Indian Country hoped. The Supreme Court, friend or foe, is charged with interpreting the law of the land.

John Echohawk
John Echohawk
Credit Native American Rights Fund

John Echohawk (Pawnee), Executive Director of the Native American Rights Fund (NARF) and Jefferson Keel (Chickasaw), president of the National Congress of American Indians, joined together to create the Tribal Supreme Court Project.

“We clearly saw, as tribal leaders did, this developing disturbing trend in the U.S. Supreme Court to basically rule against Indian tribes and Indian interest in virtually any case that came to the Supreme Court such that the winning record we had had beginning in the 1970's, when the Native American Rights Fund started, had turned into a losing record where basically three out of every four Indian law cases argued before that Court resulted in significant losses,” Echohawk said.

“Tribal leaders wanted to try to do something about that so they formed this project and basically what we do is, together with the National Congress of American Indians, is to work with tribal attorneys and tribal leaders and Indian law professors and supreme court practitioners across the country on each of these cases as it approached the Supreme Court or gets accepted by the Supreme court,“ Echohawk said.

“We try to help the parties involved come up with the best approach, the best arguments that all of us can help put together. And hopefully that will change our win/loss record in the US Supreme Court. But despite our best efforts it hasn't really happened.”

“We've got a situation here today where basically any issue headed for the Supreme Court is probably not going to be decided in favor of the tribes,” Echohawk said.

“So the advice going out from the National Congress of American Indian and the Native American Rights Fund and this Tribal Supreme Court Project work group of all these lawyers across the country we have working with us is we need to stay away from the Supreme Court if at all possible.”

A recent article co-authored by Echohawk and the president of the National Congress of American Indians, Jefferson Keel, was called “Keeping a Close Eye on Michigan v Bay Mills Indian Community.”

“The U.S. Supreme Court has accepted the case of Michigan v Bay Mills Indian Community in Michigan,” Echohawk said.

“It basically involves gaming issues and raises issues relating to the interpretation of the Indian Gaming Regulatory Act (IGRA), which of course, a lot of tribes utilize across the country and also raises a whole issue of sovereign prerogative that tribes have,” Echohawk said.

“That's their sovereign immunity from suit without their consent and both of those issues - interpretation of the Indian Gaming Regulatory Act and the extent of tribal immunity from suit - are raised in this case before the U.S. Supreme Court.”

“With the way the Court has been interpreting things in recent years we're just not very hopeful that any decision on those issues would be favorable to the tribes. And so we're working with Bay Mills Indian Community hopefully to try to get the case resolved in some other way so it doesn't get heard by the US Supreme Court later this year.”

Precedents not favorable to Indian Country could be set if the Supreme Court goes against the tribe.

“Many people don't understand that when a tribe's case goes before the Supreme Court, like the Bay Mills Community case here, the result not only affects the Bay Mills Indian Community itself, but it stands as a precedent that courts would use then to rule on the rights of any other tribe,” Echohawk said.

“So it’s a precedent that really is going to affect all tribes.”

Supreme Court Justices Roberts and Alito have never voted pro-Indian, another problem being addressed by the Supreme Court Tribal Project.

“We work with the National Congress of American Indians in monitoring vacancies in the federal courts and in the U.S. Supreme Court,” Echohawk said.

“Whenever one of these vacancies do occur then we work with all of Indian Country trying to identify qualified Native American attorneys or non-Indian attorneys who have experience and background with Indian law and see if we can't get them nominated to the courts.”

“And we have judges who are knowledgeable on these issues, we think that one of the biggest problems we have now is most of these justices and judges on the court now don't know anything about Indians or tribes or Indian law. And that's our really our biggest obstacle.”

Oklahoma attorney and member of the Kiowa Nation, Arvo Mikannen, was backed by the Tribal Supreme Court Project.

“Arvo Mikannen was one of these candidates who was identified when there was a vacancy there in Oklahoma and this Tribal Judicial Selections Project supported Arvo Mikannen as far as we could and unfortunately he didn't get confirmed,” Echohawk said.

“We were all really disappointed with that but we haven't given up. We keep looking at these vacancies across the country and keep looking for qualified Native American attorneys, native advocates who could be nominated and confirmed.”

Founded in 1970, the Native American Rights Fund (NARF) is the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations and individuals nationwide.

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