Alaska Federation of Natives urges no vote on Kavanaugh

Judge Brett Kavanaugh (Photo from US Court of Appeals)

Mark Trahant

AFN says President Trump's choice is troubling, particularly for Alaska Natives and Native Hawaiians.


The Alaska Federation of Natives Wednesday called on the Senate to reject President Donald J. Trumps nominee for the Supreme Court, Judge Brett Kavanaugh.

AFN joins our colleagues and friends across Indian country in strongly opposing Judge Kavanaugh for the Supreme Court because of, among other things, his views on the rights of Native peoples, the AFN said in a new release.

(Previous: Are Native issues enough to sink Kavanaugh nomination?)

The Alaska Federation of Natives is the oldest and largest Native organization in Alaska, its members include 186 federally recognized Indian tribes, 177 for-profit village corporations, 12 for-profit regional corporations, 12 not-for-profit regional organizations, and a number of tribal consortia that compact and contract to run federal and state programs.

AFN played a critical role in the 2010 write-in election of Sen. Lisa Murkowski after she lost a Republican primary. At the AFN convention in Fairbanks people were taught how to vote for a write-in candidate, including practicing spelling her name correctly (for some, writing her name on their hands). Alaska Native corporations also spent some $1.6 million supporting Murkowski in that successful effort.

Now Murkowski is a key player in a closely divided Senate.

The Senate Judiciary Committee will vote Sept. 20 on the nomination. After that vote the full Senate will vote on the nomination.

There are 51 Republicans, so it will take two no votes to sink the nomination, that is, if all Democrats vote against Kavanaugh. But that is not certain either. Many senators from states that supported Trump, especially those facing re-election contests of their own, are being pressured to support the nominee.

Alaska Sen. Dan Sullivan, also a Republican, has already said he will support the nominee. He has called the judge an inspired choice.

This week the National Republican Senatorial Committee started a campaign targeting Democrats who are running for reelection in states that Trump won, including North Dakota Sen. Heidi Heitkamp and Montana Sen. Jon Tester.

New Mexico Sen. Tom Udall, vice chairman of the Senate Indian Affairs, and a Democrat, said he disagrees with the nominee on Native issues. Judge Kavanaughs confirmation hearings have only reinforced my serious concern that his confirmation poses a real threat to bedrock federal Indian law and policy principles that have guided the high court for decades," Udall said. "Judge Kavanaugh has shown in his writings, opinions, and emails that he is a jurist who would call into question the basic principles of Indian law and fails to appreciate the rights of indigenous people in the United States."

AFN cited Kavanaughs view on the Indian Commerce Clause as a problem. The clause gives Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Judge Kavanaugh concedes this point. However, like Justice Clarence Thomasthe most senior justice on the Supreme Courthe challenges the clauses application to affairs beyond trade. This impacts Alaska Native tribes, corporations, organizations and consortia because their dealings with Congress presently extend to a host of federal programs concerning their members, resources and governments.

Another issue cited by AFN is the 2013 Adoptive Couple v. Baby Girl decision. Justice Thomas contested Congress authority to enact the Indian Child Welfare Act, reasoning the Indian Commerce Clause only provides federal authority over Indian trade. Because most federal laws concerning Indians lack a nexus to Justice Thomass narrow definition of trade, they would be unlikely to survive the scrutiny he urges. The result would be a wholesale reshaping of the body of law and policy that has governed Indian affairs for the past century and a half, AFN said. Legal observers tracking Judge Kavanaugh believe he is further to the right than Chief Justice John Roberts. Thus, he may agree with Justice Thomas that Congress only has plenary power to regulate direct commerce with Indian tribes, nothing more. Confirming a nominee with this viewpoint would be disastrous for Alaska, and would roll back the gains of self-determination and usher back in the losses of termination.

Another question centers on just what the judges understanding of federal-Indian law. Judge Kavanaughs writings demonstrate a limited view of the federal governments power to deal with Native peoples under this relationship. Specifically, he would only extend the special trust relationship to Indian tribes with his preferred history of federal dealings, including territorial removal and isolation. This, too, impacts Alaska, since Alaska Natives have a unique federal experience and few reservations were established in Alaska, AFN said.

During his Senate Judiciary Committee hearing, Judge Kavanaugh questioned the legitimacy of Native Hawaiian recognition, citing their different treatment by the federal government, and the fact that they do not live on reservations or enclaves, AFN said. If he remains of the view that the special trust relationship only extends to Indian tribes with his brand of federal history, including territorial removal and isolation, he could very well rule that Congress lacks the authority to deal with Alaska Natives. This thinking could overturn much, if not all, of the Alaska Native Claims Settlement Act, as well as all other federal legislation and regulations addressing Alaska Natives, tribes, corporations and organizations. To confirm a nominee who does not understand or appreciate the position of Native Hawaiians, and who could weaken the special trust relationship Alaska Natives share with the federal government, would be imprudent.

One key issue that has come up in the Trump administration is the weakening of the recognition of tribes as political units. The political classification doctrine announced in the 1974 Morton v. Mancari decision, that focuses on an Indian persons membership in a federally recognized tribe rather than his or her ancestry to avoid strict scrutiny of federal legislation and regulation that benefits Indians, would be extremely vulnerable if Judge Kavanaugh were to ascend to the Court, AFN said.

The National Congress of American Indians has yet not taken a position on the Kavanaugh nomination. However NCAI President Jefferson Keel urged tribal leaders to closely follow the confirmation proceedings: Justice Kennedy was a key vote on many important issues for Indian Country and the country at large. It is critical that we all communicate with our Senators about the pending confirmation vote to ensure that tribal sovereignty and treaty rights are honored by the Supreme Court for decades to come.

The liberal civil rights group Demos said an extensive review of Kavanaugh's record shows a history of disregard for racial equity. "In case after case, Kavanaugh has sided with the more powerful party, often at the expense of people of color. He has written and joined radical opinions addressing issues that were unnecessary to decide the caseand sometimes, that were not even raised by the partiesto promote legal theories that exacerbate rather than ameliorate inequality. For this, he has repeatedly drawn criticism from his colleagues on the D.C. Circuit, including his conservative colleagues. He has also ruled in ways that suggest he would swing the Court to the hard right on key issues like reproductive rights and fair housing."

Demos concluded: "No vision of racial justice is complete without equity and restorative justice for Native Americans. Kavanaughs record in this area has been downright dismissive. He characterized state programs on behalf of indigenous Hawaiians as a 'system of racial separatism' driven by 'political correctness.' He further denied that the islands indigenous people could ever be covered by the legal protections that apply to mainland tribes, because that would allow 'any racial group with creative reasoning [to] qualify as an Indian tribe.'"

Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter -@TrahantReports

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