WASHINGTON – With Elena Kagan’s Senate confirmation hearing looming, top Harvard University officials are defending her record on Native American issues. Meanwhile, some Indian groups and individuals are supporting her nomination to the U.S. Supreme Court, despite her largely unknown positions on Indian law.
“Elena Kagan as dean [of Harvard Law School] had such a strong interest in the issues of Indian country and Indian law that she allocated funds from her discretionary funding to support work in that area,” said Martha Minow, current dean of Harvard Law School. She said Kagan used funds to support Indian scholars, conferences, and visiting tribal law officials.
Still, some scholars have blamed Kagan for failing to racially diversify her staff when she served as dean from 2003 – 2009. Of the 32 tenured and tenure-track academic hires she made while in the position, only one was a minority, of Asian descent.
“No dean can wave a magic wand and hire anybody on a law faculty,” Minow said. “It’s not by accident that the job is often described as herding cats.”
She said Kagan made decisions on hiring women and people of color “consistent with the standards of excellence at the school.”
Indian scholars have largely been concerned that Kagan failed to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, with the understanding that Harvard would hire a full-time, tenured faculty member dedicated to Indian law.
But Robert Anderson, who was selected after Kagan’s tenure to hold a 5-year guest position as Oneida chair, said her actions were consistent with what she could do in her position.
“It’s not really the dean’s decision to hire a person with tenure; the faculty ultimately has to decide,” said the Minnesota Chippewa tribal citizen who directs the Native American Law Center at the University of Washington.
Anderson said he supports Kagan’s high court nomination, given her background and his knowledge of her ideology from when they both served in the Clinton administration. He’s also confident that she met many scholars at Harvard who imparted the importance of understanding Indian law.
Regarding the Oneida chair, Minow said the institution is “very honored to have” the position, adding that the plan under Kagan had been to have visitors rotate into the job.
Anderson hopes that some senators will specifically ask Kagan about her knowledge of Indian law during her confirmation process.
“I don’t think she knows a lot about the intricacies of Indian law, but I believe they would find out that she knows it’s an important field.”
At least one senator seems prepared to question Kagan on tribal law. Some staffers for Sen. Al Franken, D-Minn., have requested information from Indian legal scholars in preparation for Franken’s questioning of Kagan. The senator sits on the Senate Judiciary Committee.
Beyond her involvement with Indian issues at Harvard, Kagan has had few known brushes with tribal law.
Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University, explained that Kagan was once heavily involved with the negotiation and execution of a major tobacco-related court settlement that resulted in what’s known as the master settlement agreement. The agreement is seen as harmful to some tribal tobacco interests.
Fletcher posited that if a tribal tobacco case reached the Supreme Court, “one would have to believe Kagan would not be sympathetic to Indian law claims there.”
On the more positive side, Fletcher noted that while dean, Kagan once introduced the Navajo Nation Supreme Court, calling it distinguished in quality and scope.
“She’s a relative unknown, but her centrist-liberal bona fides are established in all of her other work,” Fletcher said. “She’s no Thurgood Marshall or even a Sonia Sotomayor, but overall I’d support her.”
On the question of whether Indian country at-large should support Kagan, the Native American Rights Fund has circulated a briefing paper that says Kagan “offers another fresh opportunity for Indian country to re-energize its efforts to slow and eventually reverse the erosion of tribal sovereignty by the court.”
The document continues with the following advice: “Most observers already see a clear path for Elena Kagan’s confirmation. Indian country should carefully consider expressing their support for her confirmation, perhaps exploring early opportunities for her to accept a role as their intellectual leader. Once confirmed, Indian country can extend her an invitation to visit tribal courts, meet with tribal leaders and judges, and to observe first-hand the challenges confronting tribal governments.”
Leaders of the United South and Eastern Tribes are among those offering support, having approved a resolution at their recent conference in favor of Kagan.
“USET believes that Solicitor Kagan possesses the intellect and understanding to competently handle issues arising throughout Indian country and to dispense justice in a fair, impartial, and prudent manner with regard to all the issues that may come before her if confirmed to the United States Supreme Court,” according to the resolution.