U.S. Senate Republicans question Oklahoma judicial nominee on tribal sovereignty

Republicans on the U.S. Senate Judiciary Committee grilled former Cherokee Nation Attorney General Sara Hill on tribal sovereignty issues at a hearing Wednesday for Hill, nominated to serve as a U.S. district court judge in Oklahoma.

Hill, who would be the first Native American woman to be a federal judge in the state, said she understood she’d play a different role in the legal system as a judge than she had as a top attorney for the Cherokee Nation.

“Certainly, taking on the role of the federal district judge is one that leaves behind the life of advocacy and embraces the job and the life of a jurist, one who takes the cases before them and looks at them fairly, impartially and applies the law to the facts” she said. “I understand very much that that’s the job of the district judge and not to serve as an advocate.”

As the Cherokee Nation’s attorney general from 2019 to August 2023, Hill advocated for stronger tribal sovereignty and oversaw a radical restructuring of the tribe’s criminal prosecution after the McGirt v. Oklahoma Supreme Court decision removed Oklahoma’s authority to prosecute tribal members accused of crimes in the eastern half of the state.

The ruling multiplied the workload of the state’s major tribal governments, and Hill has talked about the administrative challenge of scaling up a department that went from 50 to 100 cases per year to nearly 4,000.

She said Wednesday that she oversaw the department’s expansion from one full-time prosecutor to nine.

“It was quite the effort,” Hill said. “But that’s what the law required. The Nation’s jurisdiction was larger than had previously been understood.”

Criticism from Oklahoma governor 

But the ruling has raised the ire of some Republicans, including Oklahoma Gov. Kevin Stitt, who has called the resulting jurisdictional fights between the state and tribes “a fight for the very fabric of our state.”

Stitt, who is a member of the Cherokee Nation, criticized President Joe Biden’s nomination of Hill in an October statement, noting her past advocacy.

“Is the best choice an attorney general of a tribal government who has spent a great deal of time and resources actively suing the state of Oklahoma in an effort to overturn 116 years of Statehood and working to strip the state of our authority to enforce laws,” Stitt wrote.

At Wednesday’s hearing, Utah Republican Mike Lee also took issue with Hill’s public support of the ruling and her criticism of a subsequent Supreme Court case, Oklahoma v. Castro-Huerta, that limited the scope of McGirt.

“Your apparent desire to remove the state’s authority to prosecute non-Indian offenders would, in my view, only weaken law enforcement’s ability to remove violent offenders from the streets,” Lee said. “And it’s dangerous to place loyalty to any particular group over your loyalty to long-established principles of law or the Constitution.”

Hill answered that her statements as the Cherokee Nation attorney general didn’t necessarily reflect how she’d rule as a judge.

“On behalf of my client, I was critical of the decision in Castro-Huerta,” she said. “I certainly believe and understand that I will be required to follow the law if I’m so fortunate as to be confirmed.”

Sen. Thom Tillis, a North Carolina Republican, opened his turn to question the nominees by telling the two others also having their hearings, John David Russell of Oklahoma and Ramona Villagomez Manglona of the Northern Mariana Islands, he would support their nominations.

Addressing Hill, Tillis explained a dispute in North Carolina between the state and the Eastern Band of Cherokee Indians and asked if she would recuse herself from any case involving tribal sovereignty to avoid the appearance of a conflict of interest.

Hill responded that she would follow the rules of judicial conduct to decide when to recuse herself, an answer that didn’t seem to satisfy Tillis.

“So that’s a maybe,” he said. “If it’s an appearance thing, it’s a maybe.”

Supported by Lankford, Mullin

There is no indication that any Senate Democrats, or the independent senators who caucus with the majority, will oppose Hill. And with the support of at least her home-state Sens. James Lankford and Markwayne Mullin among Republicans, Hill’s nomination is not seriously in doubt.

Introducing Hill on Wednesday, Lankford praised Hill’s intelligence, calling her “exceptionally impressive,” “highly respected” and possessing “traits that will make an excellent judge.”

“Over the many years that my staff have worked with Sara, we have found her to be one of the smartest people in the room in just about any room she walks in,” Lankford said. “When she speaks, even those who have a different legal opinion often listen and respect the argument she makes.”

Lankford added that more federal judges were desperately needed in the Northern District of Oklahoma, where Russell has also been nominated. The district has only one full-time judge and a backlog of 500 criminal cases, he said.

Janelle Stecklein contributed to this report.