Tags: native american, navajo, roger hollander, sonia sotomayor, supreme court
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Published on Tuesday, June 19, 2012 by Common Dreams
Native Americans to get millions after ‘big victory’
In a Supreme Court decision announced on Monday, justices ruled that the United States government has shortchanged the Ramah Navajo Chapter among several other Native American tribes by millions of dollars in public service contracts.
Navajo fire fighters head out for the night shift to put out a fire in 2011 (AFP/Getty Images/Kevork Djansezian) The justices sided 5-4 with the tribes in a class action suit claiming unfair treatment by the department of the interior.
Under the Indian Self-Determination Act of 1975 Native American tribes were given contracts from the federal government to run public services such as police, schools, hospitals, environmental services and more. According to the ruling, the government began to shortchange payments for these services by implementing a payment ‘ceiling’, which capped the amount of money allotted to the tribes for their services, no longer paying for each contract in full.
“Consistent with longstanding principles of government contracting law, we hold that the government must pay each tribe’s contract support costs in full,” wrote justice Sonya Sotomayor, delivering the court’s opinion.
“The government was trying to treat tribal contractors differently from all other contractors. If you were talking about a defense contractor, I don’t think this case would have reached the supreme court – the government would have paid up long ago,” said the tribe’s lawyer Jonathan Cohn.
Rodger Martinez, president of the Ramah Navajo Chapter in New Mexico stated, “This gets us back to the principle that the government must pay us what we are entitled to.”
* * *
Native American tribes are celebrating a major victory in their battle for equal treatment after the US supreme court ruled that the government could no longer short-change them over contracts for public services.
In a ruling announced on Monday, the justices sided 5-4 with the tribes, who had taken out a class action suit complaining that they were being treated unfairly by the department of the interior.
The suit claimed that the government had over many years withheld millions of dollars owed to the tribes by imposing a cap on the contracts it had taken out with them.
Native American leaders hailed the ruling as an important victory. Rodger Martinez, president of the Ramah Navajo Chapter in New Mexico that was a plaintiff in the case, said they had been saddened that they had to go all the way to the supreme court to find redress. [...]
Jonathan Cohn of the Washington-based law firm Sidley Austin, who jointly represented the tribes, said the judgment was a “big victory for the tribes. The government must fulfill its commitments and ensure the tribes get paid.”
Cohn said that it was rare for Native American issues to reach the supreme court, and even rarer for the court to side with the tribes. At the heart of the case, he added, was the principle of equal treatment.
* * *
Justice Sonia Sotomayor wrote the majority opinion for Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Elena Kagan. Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito dissented.
“We stressed that the government’s obligation to pay contract support costs should be treated as an ordinary contract promise,” Justice Sonia Sotomayor wrote in the majority ruling which confirmed a Colorado appeals court decision.
“The government was obligated to pay the tribes’ contract support costs in full.”
Congress allocated $1.6 billion to the Bureau of Indian Affairs for “the operations of Indian programs” in 2000, according to news agency AFP, but only $120.2 million was paid out.
“Between FY [financial year] 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs,” the judgment read.
The Supreme Court’s Ricci Decision June 29, 2009Posted by rogerhollander in Human Rights, Race, Racism.
Tags: affirmative action, Civil Rights, civil rights act, glenn greenwald, justice ginsburg, justice kennedy, Race, racial discrimination, racial disparities, racial segregation, racism, racism employment, ricci, ricci decision, ricci v. destefano, roger hollander, sonia sotomayor, supreme court, supreme court justices, title vii, white fireifghters
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In the now famous “white firefighter” affirmative action case — Ricci v. DeStefano — the Supreme Court today, in a 5-4 ruling (.pdf), reversed the decision of a unanimous Second Circuit Court of Appeals panel (which included Judge Sonia Sotomayor) and held that the firefighters were the victims of unlawful racial discrimination. The Court split along standard ideological lines (Roberts, Thomas, Scalia, Alito and Kennedy in the majority), with Kennedy writing the Court’s opinion. Four Justices agreed with the Second Circuit’s panel, including David Souter, the Justice whom Sotomayor has been nominated to replace. Several points are noteworthy about this decision:
(1) In light of today’s ruling, it’s a bit difficult — actually, impossible — for a rational person to argue that Sotomayor’s Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel’s ruling; and now: (d) four out of the nine Supreme Court Justices — including the ones she is to replace — agree with her.
Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It’s perfectly reasonable to argue that she ruled erroneously, but it’s definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.
(2) The irony of using Ricci against Sotomayor has always been that the reason this case resonates for so many people is due to empathy for the white firefighters. That irony is underscored by today’s ruling, as Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci. Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters ”understandably attract this Court’s sympathy,” but it must be the law — i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act — which determines the outcome.
From the start, those protesting Sotomayor’s decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of “fairness” and empathy — at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making.
(3) For all the chatter about “judicial activism” and that dreadful Roberts metaphor of “a neutral umpire calling balls and strikes,” it is so striking how frequently conservative judges invalidate policies which conservatives dislike as a political matter. Here we have the conservative wing of the Court declaring illegal the employment decisions of local government officials, who used a political approach — diversity — which conservatives dislike on policy grounds. So often, the outcomes of the allegedly neutral conservative judges are completely consistent with (and aggressively advance) the political preferences of conservatives (Bush v. Gore being only the most obvious example). Indeed, few things are rarer than conservatives Justices invalidating policies that conservatives like politically, or upholding policies they despise — the true test for whether one applies the law independently of political and outcome preferences.
(4) As is true for most discussions of affirmative action, the fight over Ricci has completely ignored the countless ways that whites in America have long benefited, and continue to benefit, from exactly the sort of non-merit considerations which affirmative action opponents decry. As Justice Ginsberg noted, whites had a virtual monopoly for decades on firefighter positions until Congress extended Title VII to public employment (“firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow”), and city officials in this case determined that the test in question was flawed because, among other things, it did not reward merit. The result of the Court’s decision in Ricci — barring the City of New Haven from invalidating metrics with a racially disparate impact — is this:
Regardless of one’s views on affirmative action, the complaints about not-merit-based factors cut both ways. As for Sotomayor, the Court’s 5-4 decision today ought to put an end to the attempt to use Ricci to depict her as being somehow out of the judicial mainstream and thus unfit for the Court.
UPDATE: Scotusblog’s Tom Goldstein makes several similar points about the decision:
I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the [five-member majority of the] Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive” . . . .
In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.
That last sentence is the key point and should end any attempts (other than by right-wing polemicists looking to raise money off her nomination) to use Sotomayor’s Ricci decision to depict her as out-of-the-mainstream.
Tags: hispanics, immigrants, Immigration, jeffrey rosen, latinos, leslie savan, letterman, luis ramirez, Media, mexicans, new republic, racism, racist violence, scapegoating, severin, sonia sotomayor, supreme court, us
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By Leslie Savan, TheNation.com. Posted May 13, 2009.
Mexicans have recently been the prime target of the most rancid typecasting in the media — can more racist violence be far behind?
Amid the anti-Mexican media hysteria festering since the outbreak of swine flu, Dave Letterman’s portrayal last week of potential Supreme Court nominee Sonia Sotomayor as a hot-blooded Hispanic Judge Judy wasn’t the ugliest stereotyping of Latinos. It was actually weak tea compared to the mouth-foamings of Jay Severin, the Boston radio host who called Mexicans “leeches,” “the world’s lowest of primitives,” and exporters of “women with mustaches and VD.” WTKK-FM has suspended but hasn’t fired Severin, even as some advertisers have bailed.
No, Letterman’s bit was far more mainstream, and more feasibly “acceptable” than, say, the kneeslappers of Betsy Perry, a branding consultant whose Huffpost musings about Mexican “banditos” and “the Mexican help with hands washed in parasite-infested tap water” resulted in Mayor Bloomberg axing her from the New York City Women’s Issues Commission. Clearly, not all Perry’s issues are about women. (She has since apologized.)
With the rightwing smuggling in the lie that immigrants are responsible for swine flu in the U.S. (when, in fact, it’s been spread here primarily by Americans who’ve visited Mexico), Mexicans have been, of course, the prime target of the most rancid typecasting. But once the type has been cast, it has jumped easily to Latinos of any origins. A summa cum laude graduate at Princeton, an editor of the Yale Law Journal, now a judge on the Second Circuit Court of Appeals, and a Bronx native raised by her single mom (like Obama), Sotomayor is of Puerto Rican descent, and so this:
Not even a gulp from the Morning Joe gang. Mika laughed, and Willie Geist mumbled something about “fit for the Supreme Court.” We may never learn whether Sotomayor is or isn’t “fit,” because before we or the Senate Judiciary Committee see her in reality, we’ll visualize that hot tamale from the courtroom TV show losing control of her fellow Hispanic hotheads.
This particular ethnic skewering seems out of character for Letterman, who often slices through idiot-think brilliantly. Maybe he was, as conservative blogger Ann Althouse suggests, “mocking the mocking of Sotomayor.” What is up? I asked a Letterman show spokesperson, who answered, “We’re going to decline comment on this.”
Whatever Dave’s intentions, the Sotomayor brand he’s helped put into play seems to have grown out of a controversial post, “The Case Against Sotomayor,” by The New Republic‘s legal correspondent Jeffrey Rosen. Relying primarily on anonymous former law clerks as sources and admitting that he didn’t research Sotomayor’s opinions much, Rosen nevertheless deduced that “the most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench.’” His unnamed sources, he wrote, questioned “her temperament…and most of all, her ability to provide an intellectual counterweight to the conservative justices.” One of the unnamed said another unnamed said, “she’s not the brainiest.” From that, a National Review blogger further deduced that Sotomayor is “dumb and obnoxious.”
Rosen has since backpedaled a bit, and testimonies to Sotomayor’s intellect (“she’d be the kind of justice who could change some minds”) and temperament (“one of the best mentors I’ve ever had”) are coming in from named sources. But, as Media Matters asks, in a terrific, detailed piece, “Where does Sonia Sotomayor go to get her reputation back?” A TPM commenter adds, “It’s this allegation about intelligence that most deeply plays into the hands of anti-’affirmative action’ conservatives who just love to suggest that this woman, despite graduating summa cum laude at Princeton and so on, isn’t as smart as a white guy.”
Maybe playing fast and loose with Latino caricatures isn’t the best idea in times of plague and economic dislocation. Remember how Jews were blamed for bringing the Black Death to Europe in the 14th century, setting off the mother of all pogroms?
Last week, Maria Hinojosa, senior correspondent for NOW on PBS and managing editor of NPR’s Latino USA, spoke about how swine flu hysteria is hitting home. On New York radio’s The Brian Lehrer Show, Hinojosa said a friend of hers, a domestic worker in Spanish Harlem, told her that she was recently “hassled by groups of women who said, ‘Go ahead, tell them you’re sick.’” Later that same day, she “was hassled again on the bus, and she saw a group of women physically push a Mexican man away.”
“This has very human consequences,” said Hinojosa, who is amazed that “in 2009…all of us here, suddenly we have to protect the lives of Americanos in New York City. It’s crazy.”
Hinojosa also cited the case of Luis Ramirez, a 25-year-old Mexican immigrant who was killed 10 months ago in the predominantly white town of Shenandoah, Pennsylvania, apparently for walking with a white woman.
“A group of teenagers beat him to a pulp, beating his head in till his brains came out,” said Hinojosa. “All of them, last week, just a few hours from here, were found nonguilty, only guilty of lesser charges, and in the courtroom when that was announced there was a crowd of cheers and applause.
“That’s the country that we live in and the area that encompasses all of us.”
Leslie Savan is the author of Slam Dunks and No-Brainers: Language in Your Life, the Media, Business, Politics, and, Like, Whatever.