Diane J. Humetewa, the first American Indian woman to serve on the federal bench, could be in line to become the first American Indian U.S. Supreme Court justice when President Barack Obama nominates a replacement for Justice Antonin Scalia, who died on February 13. Humetewa, 51, is a member of the Hopi Tribe.
The National Congress of American Indians has strongly urged the president to nominate Humetewa, citing her unique qualifications and the fact that “Indian tribes are affected by the federal courts to a greater degree than almost any other group in the country. Many issues of daily life on Indian reservations are matters of federal statutes and federal common law.”
Humetewa currently serves as U.S. District Court Judge for the District of Arizona, a position to which the president nominated her in 2013. She was confirmed unanimously by the Senate in 2014. Sen. John McCain, R-Ariz., a staunch supporter of her nomination, said in a Senate floor statement before she was confirmed, “Diane Humetewa has an impressive legal background, ranging from work as prosecutor and an appellate court judge to the Hopi Nation to service as U.S. Attorney for the District of Arizona [from 2007 to 2009]. Plus, hers is a truly historic nomination. If confirmed, she would be the first Native American woman to ever serve on the federal bench.”
Obama has shown a commitment to diversity on the nation’s high court with the nomination of Sonia Sotomayor in May 2009. She was confirmed by the Senate and become the first Supreme Court Justice of Latin American descent the following September.
This nomination, however, is fraught with difficulty, coming as it does in an election year. The president has said he will fulfill his constitutional responsibilities and put forward a nomination, but Republicans in the Senate have said they will not consider – or even meet with – anyone the president might name.
Partisan politics may have trumped even geographical loyalty. McCain’s office told ICTMN: “As one of the strongest supporters of Judge Humetewa’s historic confirmation as federal district judge, Senator McCain has long expressed his confidence and appreciation in Judge Humetewa’s commitment to public service and the rule of law. With regard to the Supreme Court vacancy, Senator McCain understands the extraordinarily unique circumstances that exist in filling a Supreme Court vacancy during an election year, including the fact that there has not been a nomination and confirmation to the Supreme Court in a presidential election year in 80 years. With less than a year left in a lame-duck presidency and the long-term balance of the Supreme Court at stake, Senator McCain believes the American people should have a voice in the direction of the Supreme Court by electing a new president.”
The office of Sen. Jeff Flake, R-Ariz., provided a statement expressing the same sentiments: “One would have to go back more than a century to find a scenario where a president’s nominee for the Supreme Court was confirmed by the opposition party in the Senate when the vacancy occurred during an election year. I’m not about to break new ground in the Senate, particularly when any nominee could so drastically shift the balance of the court.”
A spokesman for Sen. John Tester, D-Mont., vice chairman of the Senate Committee on Indian Affairs, said the senator was not going to comment until the president named his nominee and the office of SCIA Chairman John Barrasso, R-Wyo., had not returned calls by press time.
The president wrote in a February 24 SCOTUS blog post that he would nominate someone who is “eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity… someone who recognizes the limits of the judiciary’s role [and someone who has] a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook.” White House observers have said he should name someone Republicans would pay a heavy price for rejecting out of hand, and Humetewa seems to fit all these criteria.
But it is far from certain that a new Supreme Court Justice will be confirmed before next year and in that eventuality, the court would be comprised of only eight members, pretty evenly split between conservative and liberal.
Native American Rights Fund attorney Richard Guest explains what that could mean for Indian Country. Of the three Indian cases pending before the Supreme Court, Dollar General Corporation v. Mississippi Band of Choctaw Indians is by far the most important, says Guest.
That case was argued in December and the vote was expected to go 5-4 against the tribes. Scalia was with the majority and may have been writing the majority opinion. If the court splits 4-4 without Scalia’s vote, it has two options. “The first is to issue a ruling that affirms the lower court decision, which would be very, very good for tribes,” says Guest. Or the court could decide to rehear the case when a new justice comes on board. The court is probably not inclined toward the second option because this is not a constitutional case, Guest says.
In Nebraska v. Parker, which pertains to the original boundaries of the Omaha Indian Reservation, it appeared that Scalia would have voted to back the tribe. Even though that vote is lost, Guest says he does not think the other side has five votes. If the court is tied, the lower court’s decision in favor of the tribe would stand.
United States v Bryant is the case about whether a United States Attorney can use tribal court convictions in a domestic violence case when the defendant did not have counsel. The 9th Circuit Court of Appeals said the U.S. attorney erred in using the convictions because the defendant’s sixth amendment rights were violated. The 8th and 10th Circuits ruled that the defendant’s rights were not violated because he did not have a sixth amendment right to counsel in a tribal court; therefore, the U.S. attorney could use the convictions to make his case. Oral arguments are scheduled for April.
The court needs to decide this case one way or the other, says Guest, because if it does not an inconsistency will be created where a U.S. Attorney arguing before the 9th Circuit could not use prior tribal court convictions, but a U.S. Attorney arguing before the 8th and 10th Circuits could use those convictions. The Supreme Court will want to create uniformity, he says.
A petition has been started asking President Obama to nominate Humetewa. If it receives 99,999 signatures in the next 30 days, the petition will be reviewed by the White House.
Humetewa had not returned calls requesting a comment by press time.