February 26, 2019

VIDEO: Udall Speaks Out Against Nomination of Eric Miller to U.S. Court of Appeals

Raises serious concerns regarding Miller’s troubling record on Indian law and policy

Udall: “He does not understand the inherent sovereignty of Tribal Nations”

VIDEO: Udall Speaks Out Against Nomination of Eric Miller to U.S. Court of Appeals

WASHINGTON – Today, U.S. Senator Tom Udall (D-N.M.), vice chairman of the Senate Committee on Indian Affairs, spoke on the Senate floor against the nomination of Eric Miller to be a Circuit Judge for the U.S. Court of Appeals for the 9th Circuit. Udall discussed his opposition to Miller, citing Miller’s deeply troubling record on Indian law and demonstrated lack of respect for Tribal sovereignty as an attorney in private practice. Udall also pointed out that if Miller were confirmed, he would receive a lifetime appointment to a federal court that has jurisdiction over 427 Tribal Nations.

“I am concerned that Mr. Miller’s record has not shown and does not have the proper respect for Tribal sovereignty,” said Udall. “As an attorney in private practice, Mr. Miller consistently advocated against Tribal interests and Tribal sovereignty.”

“In fact, Mr. Miller has donated over 675 hours of pro-bono work against Tribal sovereignty, against Native religious practices, federal recognition, and numerous other respected Tribal doctrines,” continued Udall. “For example… Mr. Miller argued [before the Supreme Court] that Tribal governments are not entitled to sovereign immunity… demonstrat[ing] that he does not understand the inherent sovereignty of our Tribal Nations.” 

“Mr. Miller’s record on Tribal issues is one-sided and extreme,” Udall concluded. “His history of advocating against Tribal interests does not give me confidence that he would be a fair and impartial jurist on the 9th Circuit Court of Appeals when Tribes come before him. I will vote no on Eric Miller’s confirmation and urge my colleagues to do so as well.”

Below are Udall’s full remarks as prepared for delivery. 

Madam President, I rise to oppose the nomination of Eric Miller to be a Circuit Judge for the United States Court of Appeals for the 9th Circuit.

Senate traditions command respect – traditions that have preceded and hopefully will succeed all the members of this body for generations to come. 

Senate traditions such as the blue slip, where the nominee’s home state senators are given the opportunity to object. This courtesy has been in place for more than 100 years as part of the Senate’s advise and consent responsibility. 

But if confirmed, Mr. Miller would be the first circuit court nominee in history to be confirmed without having a blue slip returned from either of his home state senators.

The lack of respect shown for this Senate tradition by the Republican leadership of the Judiciary Committee is as saddening as it is alarming.

Another Senate tradition, again flouted by the Majority, was holding Mr. Miller’s confirmation hearing during a Senate recess. 

The recess hearing, lasting only 30 minutes with only 2 Republican members in attendance, was objected to by Democratic members who sought to question Mr. Miller on a number of legal issues, including Indian law.  

Instead, the questioning lasted less than 5 minutes.

Bringing Mr. Miller’s nomination to the floor without an adequate hearing is an abuse of the confirmation process by the Republican leadership of the Judiciary committee.

Putting aside these abuses of the process, as significant as they are… Mr. Miller’s repeated willingness to side against Tribes in court and the likelihood that such willingness will follow him to the bench where he would have an outsize influence on the development of Indian law for decades – this concerns me deeply. 

As vice chair of the Senate Committee on Indian Affairs, I pay special attention to a nominee’s record on Tribal issues, especially if a nominee will preside in a jurisdiction that has 427 Tribal Nations, as is the case with Mr. Miller. 

I am concerned that Mr. Miller’s record has not shown, and does not have the proper respect, for Tribal sovereignty. 

As an attorney in private practice, Mr. Miller consistently advocated against Tribal interests and Tribal sovereignty. 

In fact, Mr. Miller has donated over 675 hours of pro-bono work against Tribal sovereignty, against Native religious practices, federal recognition, and numerous other respected Tribal doctrines. 

For example, in the case of Upper Skagit v. Lundgren, Mr. Miller argued that Tribal governments are not entitled to sovereign immunity because it interferes with the “States’ sovereign interest in adjudicating disputes over title to land within their territory and frustrate[s] the orderly adjudication of competing [ownership] claims.” His arguments in this case demonstrate that he does not understand the inherent sovereignty of Tribal Nations.

Mr. Miller has shown a lack of respect for Native American religious practitioners when he argued for a narrow application of the Religious Freedom Restoration Act when these practitioners argued that the construction of a solar farm would substantially burden their ability to conduct their religious practices.

Mr. Miller has argued for an extremely narrow reading of the Indian Reorganization Act when considering the federal recognition status of Tribes. 

He asserts that only Tribes that possessed federally managed lands when the Act was passed in 1934 should be federally recognized. 

This narrow view does not acknowledge the well-established principles of Indian law and can lead to the termination of Tribal Nations that do not meet his narrow and arbitrary standard.

Mr. Miller’s record on Tribal issues is one-sided and extreme.

His history of advocating against Tribal interests does not give me confidence that he would be a fair and impartial jurist on the 9th Circuit Court of Appeals when Tribes come before him. 

I will vote no on Eric Miller’s confirmation and urge my colleagues to do so as well.