WASHINGTON – In an apparent attempt to show empathy for Indian country,
Supreme Court nominee John Roberts Jr. twice told the Senate Judiciary
Committee confirmation hearings about his visits to Alaska Native villages.

But some of Roberts’ Native critics see irony in his statement, since at
the time he was helping the state of Alaska defeat tribal claims of
sovereignty and oppose Native assertions of hunting and fishing subsistence
rights.

His mention of the tours, confirmed by testimony from the former Alaska
attorney general whom he represented, could have been a bid to reassure
Indian critics he would not be the implacable foe that his legal work might
suggest. He also cited his Supreme Court argument on behalf of Hawaiian
Natives in the case of Rice v. Cayetano, where he represented the losing
side.

In turn, Indian legal groups have muted criticism of the nominee for chief
justice of the Supreme Court. If he wins Senate confirmation before the
fall Supreme Court term opens Oct. 3, they explain, they will be appearing
before him in the first case he hears, the important Prairie Band
Potawatomi tax case.

John Dossett, general counsel for the National Congress of American
Indians, said that Roberts might even turn out as a plus for tribes because
of his work on Native cases. “The ones who really scare us,” he said, “are
the justices who know very little about Indian law and don’t really care.”

U.S. Sen. Dianne Feinstein, D-Calif., set the stage by asking Roberts how,
with his cloistered background, he could keep in touch with the needs of
ordinary humanity. Roberts replied, “I know, for example, when I was a
lawyer and handling a case about Native village rights in Alaska, I went to
the Native villages. I’ve always thought that was an important part about
understanding the real world consequences of any case: to get on the
ground.

“I went to these villages that you could only reach by boat or by plane,
where they make do with so little because of the remoteness.”

Some Alaska Natives were not impressed, however. “He thought we were
incredibly poor,” replied Luci Beach, of the Gwich’in Steering Committee,
who was in Washington, D.C. with Alaska Natives maintaining a vigil against
legislation to open the Arctic National Wildlife Reserve to oil drilling.
“Although he wouldn’t recognize it, we’re incredibly rich with what we
have.”

In these visits, moreover, Roberts was working for a state government
opposing Native claims. He persuaded a unanimous Supreme Court to rule in
Alaska v. Venetie that Native lands in Alaska were not part of Indian
country, so that tribal villages weren’t able to exercise sovereign powers
of taxation.

He also persuaded the 9th Circuit Court of Appeals to give an en banc
hearing (all judges sitting) to the year 2000 round of the extremely
protracted subsistence fishing rights suit brought by Ahta elders Katie
John and Doris Charles and the Mentasta Village Council. But the final
result was less to his liking. In a terse one-paragraph ruling in May 2001,
the circuit court upheld the previous decision in favor of the villagers.
Two judges in a concurrence called the en banc hearing an “ill-advised”
mistake, causing “an inordinate amount of work.”

Then-Gov. Tony Knowles subsequently made his own village visit, spending a
day with John at her fishing site on the headwaters of the Copper River. On
his return, he announced that the state would forego an appeal to the
Supreme Court, giving Alaska Natives what their lawyers called a
“tremendous victory.”

“I learned more that day than is written in all the boxes of legal briefs
in this long-lasting court battle,” Knowles said on his return.

As John approaches her 90th birthday Oct. 13, the case – which has taken up
nearly 20 years of her life – is still going on. Her attorney, Heather
Kendall-Miller, of the Native American Rights Fund office in Anchorage,
said John is suing Interior Secretary Gale Norton in the U.S. District
Court in Alaska over a “too restrictive” rule implementing the Native
victory.

But Roberts’ work drew effusive praise from Bruce Botelho, the former
Alaska attorney general who hired him for the Venetie case in January 1997.
Roberts, then a private attorney with the Washington, D.C. firm of Hogan
and Hartson, went on to handle a number of other cases for the state over
the next six years, drawing a total fee of $1.75 million. Botelho, now the
mayor of Juneau, told the Judiciary Committee that the decision to retain
Roberts “was probably one of my best.”

“From the beginning, Judge Roberts wanted to know everything there was
about the case,” said Botelho in his written statement. “He wanted to learn
every detail, including the correct pronunciation of the village names, the
structure and role of Native organizations in Alaska, and the geography of
our vast state.”

Botelho said Roberts “flew to Alaska to observe life in the rural areas of
our state. He wanted to be able to personally represent the facts to the
court rather than rely upon a secondhand impression acquired from reading
about another person’s experience.”