Concerns Abound over a Judicial Nominee’s Position on Tribal Sovereignty

Oct 25, 2018 | News

The Senate Judiciary Committee held a hearing on Wednesday to question Eric Miller, President Trump’s nominee to the 9th Circuit Court of Appeals, which is arguably the most influential circuit court as it covers nearly 20 percent of the U.S. population. Several Native groups, including the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF), oppose Miller’s nomination due to concerns over his views of Tribal Sovereignty.

The hearing was remarkably short with only two senators being present, Mike Crapo (R-ID) and Orrin Hatch (R-UT). During the hearing, Sen. Crapo revealed that tribal leaders reached out to him expressing their concern over his nomination and that “there is a belief you don’t have the appropriate view of tribal sovereignty.”

Tribal leaders have cited several cases, including Lewis v. Clarke, where Miller has argued against tribal interests. In Lewis v. Clark, Miller argued that tribal sovereignty should not protect a tribal employee acting in his individual capacity from a lawsuit.

Miller defended his previous actions as a lawyer by arguing that he was simply defending his firm’s clients while acknowledging that those clients “tended to be adverse to tribes in litigation.” Miller added that “tribes are independent sovereigns, [and that] the treaties with tribes must be respected and understood as the tribes would have understood them.” As a judge, Miller claimed that he would “neutrally apply the law.”

Miller’s defense will likely not be enough for Indian Country. “Our concern is that [Miller] chose to build a law practice on mounting repeated challenges to tribal sovereignty, lands, religious freedom, and the core attribute of federal recognition of tribal existence,” said a joint letter by NCAI and NARF. “His advocacy has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights.”

The concerns over Miller, whose home state is Washington, have caught the attention of Washington’s two senators, Patty Murray (D-WA) and Maria Cantwell (D-WA), who both announced their opposition to Miller’s nomination.

Nonetheless, Judiciary Committee Chairman Chuck Grassley (R-IA) opted to continue Miller’s nomination process, even if that meant breaking precedent. As reported by the Seattle Times, “In recent history, no nominee for the 9th Circuit Court has ever been confirmed without at least one blue slip (i.e. approval) from one senator from their home state.”

After the congressional recess, members of the Senate Judiciary Committee and eventually the full Senate will still need to vote on Miller’s confirmation. However, with Republicans in control of the Senate, Miller should be able to get enough votes to confirm his nomination to the 9th Circuit.

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