A Supreme Court Empathetic to American Indians?

As Justice Stevens retires, President Obama has the opportunity to nominate yet another Supreme Court Justice and affect not only future decisions, but the very composition of the highest court. Women dominate his short list with Elena Kagan, Diane Wood, and Janet Napolitano. Meanwhile, many American Indians have called for Native American Rights Fund Executive Director, John Echohawk to be seriously considered. A Facebook group has been dedicated to this mission.

John Echohawk, however, does not fit the mold of a Supreme Court Justice. For starters, he did not attend one of the select schools typically considered requisite for a Supreme Court nomination, but instead blazed trails as one of the first American Indian graduates at the University of New Mexico (well known for its Federal Indian Law program). Second, he has not practiced as a Judge. Third, while American Indians are certainly a minority group, they do not pose political clout. President Obama will be looking for a candidate that appeals to one of his political groups especially as the country nears midterm elections and Echohawk unfortunately does not carry such weight.

In a different world, however, Echohawk should be a serious consideration and properly evaluated. Depending on his other merits and judgment, Echohawk could represent a significant change to the perception that the Supreme Court does not rule favorably towards American Indians and tribes. One of the biggest complaints with the Supreme Court by American Indian groups is that there really has not been a judge well-versed in Federal Indian Law or empathetic (as the term used for Sotomayor) towards American Indians. Federal Indian Law is a rather niche field not available at all law schools, even at some of the "best" top 20 schools. Typically, when a course is offered, only one course is available and hands on practice is rare. Such limited availability is recent, so many Justices and nominees will not have the exposure that John Echohawk does.

This lack of exposure has made it so that in recent years American Indians rarely get their day in court (the Supreme Court that is). Federal Indian Law cases fuse with criminal, environmental, healthcare, and a multitude of other types of laws. Additionally, the complexities of Federal Indian Law are difficult to navigate in terms of jurisdiction and precedence. The recent cases over mascots and land trusts only exemplify this. Even one of the most significant cases establishing American Indian sovereignty, Worcester v. Georgia, rarely makes it to the list of significant study in a history class.

If President Obama is serious about the composition of the court and wants to follow through on change, considering Echohawk would be a good step. Maintaining the status quo of only nominating Judges that fit a certain stereotype (even Sotomayor fits the peg of an Ivy League education) will result in Federal Indian Law and American Indian interests always being secondary priorities. If President Obama deems that Judicial experience is a necessary requisite (a legitimate standard), then perhaps prepping Echohawk for a future Supreme Court role by nominating him to another judicial post would be an admirable step.