3 Questions for Justice Alito About Native American Concerns

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Surprise, surprise! United States Supreme Court Justice Samuel Alito was in South Dakota this past week. He is the justice assigned to the 8th U.S. Circuit, which comprises South Dakota and five other states. Here is how the Rapid City Journal wrote it up:

Supreme Court Justice Samuel Alito and other federal judges visited Pine Ridge Indian Reservation on Wednesday and were briefed on Lakota culture and talked with tribal officials about issues facing Native Americans.

Alito and the other judges were invited to Pine Ridge by Chief Judge Karen Schreier of the U.S. District Court for South Dakota. They were hosted by Red Cloud Indian School, where they saw young powwow dancers showcase their skills and enjoyed a traditional Lakota meal.

"Our main purpose for the visit is that a lot of our judges did not come from districts that had any Indian Country issues. We're trying to educate them -- and ourselves -- on the issues Native Americans face," Schreier said.

Oh, to have been a fly on the wall! I suspect that Judge Schreier was too courteous to go down this road but here are three questions I would have asked Justice Alito upon his arrival on the reservation. 

1. Does the justice support the nomination of Arvo Mikkanen to a federal trial spot in Oklahoma? Mikkanen is a well-educated, experienced, popular, Native American federal prosecutor in Oklahoma City who is eminently qualified for a spot on the bench. President Barack Obama nominated him nine months ago. Yet Oklahoma's Congressional delegation seems to have killed the candidacy,  in its cradle, without offering a public reason, before Mikkanen could even get to the Senate Judiciary Commitee. He would be only the third recorded Native American federal judge is U.S. history. The third.  

So would Justice Alito care to throw his considerable chops with Senate Republicans behind the Mikkanen nomination?

2. Does the justice care to further explain his opinion this past term, just two months ago, in the case of the Jicarilla Apache Nation? He wrote the opinion for a 7-1 Court (Justice Kagan had recused herself) which overturned two lower federal courts to rule against Native American interests in a case involving access to their trust records. The lone dissenting justice, Sonia Sotomayor wrote:

Although today's holding pertains only to a narrow evidentiary  issue, I fear the upshot of the majority's opinion may well be a further dilution of the Government's fiduciary obligations that will have broader negative repercussions for  the relationship between the United States and Indian tribes.

So would Justice Alito care to allay Justice Sotomayor's fears?

3. Does the justice care to respond to serious allegations that the Supreme Court's certiorari process favors opponents of Native American interests? In an important 2009 study titled "Factbound and Splitless," Matthew Fletcher concluded:

In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them "factbound" and "splitless." The impact of this weighted review of cert petitions is that a disproportionate number of state government petitions are granted while very few tribal petitions are granted.

So would Justice Alito care to look into those numbers once he returns to the Court?

I am sure that Justice Alito's visit to the reservation was a cordial and polite affair. But I hope, amid the pageantry, that the justice was pressed about these and other issues of concern to Native Americans.  Those folks have a right to feel these days like the federal judiciary is no friend of theirs. And powwow dance or no powwow dance, Justice Alito is in part to blame.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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