Justice Brett Kavanaugh’s impact on Indian Country

The recently confirmed justice was heavily opposed by Indigenous leaders.

 

On Oct. 6, Brett Kavanaugh was sworn in as a Supreme Court justice after a nomination process marked by explosive sexual assault allegations and extreme partisanship in the Senate Judiciary Committee. Much of Kavanaugh’s tumultuous confirmation process stood in contrast to President Donald Trump’s previous Supreme Court pick, Justice Neil Gorsuch, not in the least because of his record on cases regarding tribal law and reputation in Indian Country. Tribal leaders and organizations, including the Alaska Federation of Natives, which represents more than 186 federally recognized Indian tribes and 177 for-profit village corporations in Alaska, generally opposed Kavanaugh based on his understanding of the federal government’s relationship to Indigenous people, as well as the sexual assault allegations.

“The Alaska Native community, many tribes of which are our clients, have been unified in their opposition of him,” Native American Rights Fund Senior Attorney Natalie Landreth wrote in an open letter to Alaska Republican Sen. Lisa Murkowski. 

Murkowski ultimately voted no, though she added that she does “not think that he will be a threat to Alaska Natives.” But what does Kavanaugh foreshadow for tribal interests in the Supreme Court? So far the justices have agreed to hear three important tribal cases, and have yet to decide whether to hear six more this term.

President Donald Trump greets Brett Kavanaugh, newly confirmed justice of the U.S. Supreme Court, during a ceremonial swearing-in event on Oct. 8.
Oliver Contreras/AP Images

Kavanaugh’s record on Indian law is sparse, due in part because his years working for former President George W. Bush were kept mostly private. In an analysis by the Native American Rights Fund, Senior Staff Attorney Joel Williams wrote that a full evaluation “is not possible at this time” because of a lack of information about his record. But while working for the White House, Kavanaugh authored an op-ed about a Native Hawaiian preferred hiring policy, offering a window into his perspective on Indigenous people. In Rice v. Cayetano, a resident of Hawaii said that it was unconstitutional to require Native Hawaiian ancestry in order to vote for trustees for Office of Hawaiian Affairs, calling it “race-based,” in contrast with how federally recognized tribes are considered a political class. In a 1999 interview, Kavanaugh said that “this case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government.” 

That perspective concerns some when considering how it affects his view on tribal sovereignty. “Someone that would be willing to split hairs regarding the rights and interests of Indigenous groups based on the fact they are not technically a federal Indian tribe does not bode well for how he would treat other Indigenous groups of people in this country,” says Dylan Hedden-Nicely, director of Native American Law at the University of Idaho, and member of the Cherokee Nation.

Kavanaugh is replacing Justice Anthony Kennedy, who, while a moderate, voted against tribal interests 74 percent of the time. How Kavanaugh will vote remains essentially unknown, though some, like Hedden-Nicely, are not optimistic. “I think he’s going to set the tone in short order. It won't be a mystery for long,” he says. “I think that the Kavanaugh era has begun.”

Anna V. Smith is an assistant editor for High Country News. Email her at [email protected] or submit a letter to the editor

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