On Monday night, the Senate voted 51 to 46 to invoke cloture on the nomination of lawyer Eric Miller to the federal bench. The Senate could vote as early as today to officially confirm the 43-year old Miller to a lifetime appointment on the Court of Appeals for the Ninth Circuit.
That particular court just so happens to be responsible for 427 federally recognized Native nations, or roughly 75 percent of all federally recognized Native nations. As pointed out by John Echohawk of the Native American Rights Fund in a column opposing Miller’s nomination, the Ninth Circuit oversees more tribal cases than any of the other federal circuit courts and often sets precedents that trickle their way down to the lower regional and state courts. And now, the Ninth Circuit will add a man with a penchant for attacking the weak spots around the United States’ treaties with the Native nations.
Leonard Forsman, chairman of the Suquamish Tribe and president of the Affiliated Tribes of Northwest Indians, voiced the alarm to Indian Country Today last August—not that many folks outside that readership cared to listen.
“Federal judicial nominations have a disproportionate impact on Indian Country because Indian law is often made and changed more from the judicial bench than by Congress,” Forsman said. “As an attorney, the nominee has represented interests that were opposed to treaty rights. He has attacked Tribal sovereign immunity. He has disputed a Tribal nation’s ability to acquire trust lands under the Indian Reorganization Act and [shown] a repeated willingness to side against Tribes in court, and we fear this track record will follow him to the bench.”
If we go to the tape and believe Miller’s Senate Judiciary Committee questionnaire, he’s a good ole (conservative) Western lawyer, a man who just works the cases as they came across his desk. The resumé checks out: Miller clerked for Supreme Court Justice Clarence Thomas in the 1990s. He then worked in the Justice Department, in the Civil Division and the Office of Legal Counsel during the early 2000s. Like a great many of the Trump nominees, he is, unsurprisingly, an on-and-off member of the Federalist Society, as he admitted in his questionnaire. And unlike some Trump nominees, Miller received the highest possible marks from the American Bar Association.
All of this is to say that Miller is not the obviously wrong choice for this seat, or at least he isn’t to enough people. He is not, for example, Tom Farr, the North Carolina lawyer who rubbed elbows a little too closely with notoriously racist Senate power player Jesse Helms and as a result ultimately had his nomination undone by a last-minute reversal from Sen. Tim Scott of South Carolina. Miller’s resumé sparkles in all the right places, so much so that the glares against Indian Country were smothered—first by errant scheduling, then by Senate Majority Leader Mitch McConnell and his determination to place as many conservative judges on the bench as will fit.
A great deal of Indian law that bubbles its way to mainstream consciousness concerns the upholding (or ignoring) of treaties and the concept of land use and property rights. Exploring the latter, Julian Brave NoiseCat recently noted in The Guardian the difference between Western ideals of private property and those carried by the Indigenous people of this continent.
That is, in a capitalistic state, land is nothing more than a parcel to be sold and improved and flipped for profit, the process rinsed and repeated until the dirt crumbles and gives way or the apocalypse cuts a contract short. The few times it is cared for and preserved, it is done so with solely with the attitude of breaking from the norm of colonialist land dominance—national and state parks and open private land, all wonderful treats meant to erase the fact that those lands now used for leisure and escape were and are snatched from the peoples who once cared for them dearly.
In a great many Indigenous cultures, in contrast, the land and the water (regardless of location) are beings demanding of equal respect and care to human beings and animals. The idea that only a select few facets of nature should be respected is not one that produces a healthy, sustainable relationship with the earth. Understanding this concept—and the American government’s attempt to ignore it by way of measures like land allotment—is important, because Miller’s work strikes against those very Indigenous values. And when you strike against those values, you eventually run into some treaties.
To comprehend why tribes and Native groups are opposing Miller requires a little bit of lawsuit dumpster diving through his time as a partner at the Seattle-based law firm Perkins Coie. There, Miller earned a reputation as the go-to lawyer in the West for folks looking to tangle with Native nations.
In Conf. Tribes of the Grand Ronde Cmty. of Or. v. Jewell and Stand Up for California! v. U.S. Dep’t of Interior, Miller argued against the tenants of land rights and tribal recognition. In the 2017 Washington case of Upper Skagit Indian Tribe v. Lundgren, Miller argued against the tribe, noting the limits and increasing divestment of tribal sovereignty:
The limited nature of tribal sovereignty suggests that to the extent tribal sovereign immunity differs from that of other sovereigns, it should be narrower, not broader. Unlike foreign and state sovereignty, tribal sovereignty has been significantly divested.
Then there’s the case of Friends of Amador Cty. v. Jewell, in which Miller went after the federal recognition status of the Buena Vista Rancheria of Me-Wuk Indians. To catch up on just a slice of Native injustice, the 1958 Rancheria Act was among the many attempts by California to wipe the cultural identity of Indigenous peoples from its land by disbanding the 40-odd Native rancherias, a common type of Native settlement in California. Miller’s lawsuit aimed to finish the job.
Now, there’s a point to be made that repeatedly depending on American governmental institutions for decency or legal justice, or even projecting the desire for inclusive power within those institutions, is a mark of assimilation at work. But for now, the question is when a subject is not flashy or clickbait fodder—when it really matters, but is still among the dozens of morsels of Indian Country news relegated to the sidelines—who in Washington has the ability to stand against the machinations of modern colonialism? More pressingly, who will stand to amplify the voice of Native nations and not solely partisan opposition?
In October, the National Congress of American Indians, the largest and oldest inter-tribal organization in DC, released a joint statement with the Native American Rights Fund detailing their opposition to Miller’s nomination. NCAI’s membership ultimately took it a step further and passed a resolution to voice their full-throated displeasure. But NARF and NCAI don’t get a Senate vote; they’re simply conduits, organized attempts to bring a Native influence and voice to the ear of America’s elected leadership and pray they listen.
There’s history snuggled in among all the other complexities of Miller’s nomination. If passed, he would stand as the first circuit judge ever cleared by the Senate without the approval of both home-state senators, as Democratic Sens. Patty Murray and Maria Cantwell of Washington have both voiced their opposition to Miller’s confirmation throughout the process. Murray spoke on the Senate floor on Monday, citing Miller’s record on tribal issues as her main cause for concern.
Elsewhere on the left, the fight against Miller’s nomination ranges from fierce to nonexistent. Bernie Sanders of Vermont was absent during the vote, as he was participating in a CNN-hosted town hall. Sanders was the foremost leader on Native issues in the 2016 election and filled his campaign staff with Indigenous voices; he has said little of the commitment thus far into his 2020 campaign. (We requested comment from Sanders, and will update when and if we receive a response.)
Meanwhile, his fellow left-friendly opponent in the 2020 race, Sen. Elizabeth Warren clearly stood against Miller in both voice and vote, publishing a short statement on Twitter and linking to NCAI and NARF’s opposition.
Sanders and Warren—as senators of Northeastern states in the Democratic caucus, not presidential candidates—do not represent a sizable Native population, nor are their “No” votes the ones that are most needed. The makeup of the current Senate requires the nay votes of at least four GOP members. And among the GOP members in the chamber that represent large Native populations—states like Arizona, Florida, North Carolina, and Oklahoma—the votes were all in favor of rubber-stamping Miller. (Democrat Kyrsten Sinema of Arizona voted against Miller.)
GOP Sen. Lisa Murkowski, who on Monday touted her legislation for improvements to the tribal Veteran Affairs, was absent from the Senate floor on Monday, missing both the vote for Miller and another on an abortion-related topic. Murkowski has not yet offered a public comment on Miller’s nomination; we’ve reached out to Murkowski’s office, and will update when and if we receive a response.
This all might seem a bit dry to those fresh to Indian Country matters. But given the United States’ long history of using its own court system to legally steal and undercut Native nations, Miller’s probable lifetime appointment to the Ninth Circuit should serve as a fairly terrifying prospect. Instead, like a great many Indian Country matters, it will slide under the radar—and Native nations will be left holding the bag for a man they never chose.
Update, 5:35 p.m. ET: The Senate confirmed Miller 53-46 on Tuesday afternoon.