Initial reaction cool to Indian judicial nominee

By Murray Evans
Oklahoma City, Oklahoma (AP) February 2011

Arvo Mikkanen would seem to be an ideal candidate to become the only current federal judge of Native American descent.

He’s a graduate of Dartmouth College and the Yale University Law School, has served as a trial and appellate judge on tribal courts in Oklahoma, clerked for two federal judges, spent time in private practice and worked as an assistant U.S. attorney in Oklahoma’s Western District since 1994. Mikkanen is considered by colleagues to be one of the nation’s top American Indian legal minds.

But his nomination by President Barack Obama earlier this month to an open district court judgeship in Oklahoma’s Northern District, based in Tulsa, drew quick opposition from the state’s two Republican U.S. Senators, Tom Coburn and James M. Inhofe, and the lone Democrat in the state’s congressional delegation, mostly for reasons of protocol. Now tribal groups are left to hope that Mikkanen’s nomination can somehow be salvaged.

If Mikkanen’s nomination is approved, he would be one of only three American Indians ever to serve as a federal district judge. The other two, Frank Seay and Billy Burrage, both worked in Oklahoma’s Eastern District, based in Muskogee.

“Minority judges are under-represented in the federal judiciary,” said John Dossett, the general counsel for the National Congress of American Indians. “Other groups have had to work on it. This is how you do it. You search around and find these highly qualified attorneys who have the resume, who are superstars, and you try to put them forward and get political support for their confirmation.

“It’s not an easy process but we’re committed to it.”

Mikkanen, a member of the Kiowa Tribe of Oklahoma, spent six years as a tribal court judge, working from 1991 to 1994 as the chief justice of the Cheyenne-Arapaho Supreme Court.

“One of Arvo’s strengths is he’s actually been a judge,” said Dan Webber, a former U.S. attorney in Oklahoma’s Western District who served as Mikkanen’s supervisor for three years. Webber believes that Mikkanen’s nomination “shouldn’t have anything to do with his heritage,” but acknowledges that “it does make him unique and he is an expert on certain areas of federal law that are often very hard to understand,” such as jurisdictional issues involving criminal cases in what’s commonly known as Indian Country.

Webber recalled that in a 2002 case, then-Oklahoma County District Attorney Wes Lane called on Mikkanen to testify in a case involving an Indian gaming issue. Mikkanen, Webber said, “testified how the supposed Indian status of the land in question was bogus and that was a turning point in the case. That is a perfect example of him appropriately applying the law to the facts.”

Obama nominated Mikkanen on Feb. 2 to fill the post being vacated by U.S. District Judge Terence Kern, who retired in January. The same day, Coburn – a member of the Senate Judiciary Committee – expressed “serious concerns” about the nomination.

“I believe (Mikkanen) is unacceptable for the position and another example of how politics in Washington neglect to take into account what is best for the people of Oklahoma,” Coburn said in a statement. “I am also deeply disappointed in the White House’s lack of consultation with me on this nomination. I hope we can work together in the future to find a nominee for this seat whom I can support.”

Inhofe’s spokesman, Jared Young, echoed that sentiment, saying Inhofe is “inclined to oppose the nomination on grounds of process. The nomination just came out of the blue. We don’t know who Arvo is or anything about his judicial philosophy. We haven’t seen any of his writings.”

As the only Democrat in the state’s congressional delegation, U.S. Rep Dan Boren has worked with the senators’ offices and the Obama administration in finding nominees for federal posts.

“I want to be clear,” Boren said. “My objection to this nomination has more to do with the process than anything else. In the past, the Oklahoma delegation has submitted multiple nominees for federal appointments. In many instances, our nominees have been vetted by the administration and told that their nomination would not move forward without any explanation to the nominee.”

Boren said Mikkanen’s name “was not submitted by the Oklahoma delegation.”

But Mikkanen has for years been on lists of “qualified candidates” for judicial positions submitted by American Indian groups, according to Dossett and John Echohawk, the executive director of the Native American Rights Fund.

“We think there are many qualified Native American lawyers who could serve on the federal bench,” Echohawk said. “Arvo is certainly among those.”

Mikkanen did not return a phone message left at his Oklahoma City office. Given the current opposition of Inhofe and Coburn, it seems unlikely the Senate would approve his nomination, although the process is in its early stages. Young, Inhofe’s spokesman, suggested that Mikkanen should speak with the senators about issues.

“I would think with the first interview, Arvo could alleviate some of the concerns,” said Kirke Kickingbird, a former Oklahoma City University law professor who now works with a legal firm specializing in Indian-related cases. “It would seem to be an easy way to deal with it. I certainly don’t think there are any political issues, because he’s more or less apolitical.”

Kickingbird said the protocol issue “seems like a minor thing. This guy appears to be the perfect candidate. . It’s puzzling to understand why (Coburn) would call him unacceptable. What does that mean? It would be unfortunate for the federal bench to lose this candidate, not only because he’s Indian, but because of his experience.”

Webber said it’s important for those who know Mikkanen to speak up on his behalf.

“I just hope (the senators) reconsider their statements and not hold any miscommunication at the staff level against Arvo and look at Arvo solely on his qualifications. If that happens, I believe he’ll be confirmed.”