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Pauly Denetclaw
Indian Country Today

The historic confirmation of Ketanji Brown Jackson as the first Black woman to become a Supreme Court Justice cannot be understated, especially given the sexism, racism and anti-Blackness that is entrenched in American society. The Supreme Court has existed for 233 years and this is the first time a Black woman will sit on the bench and Jackson will be the fourth woman to ever be appointed.

When Jackson became a district court judge in 2013, she became part of one-percent of Black women to ever hold that position. In 2020, the American Bar Association released a diversity report showing that only 36.5 percent of active attorneys identified as female and only 5 percent as Black.

A Supreme Court justice with a background in criminal defense has not been heard in over three decades. For a few years early in her career, Jackson served as a federal public defender, representing those who could not afford an attorney to handle their case. She spent most of her career sitting as federal judge for the U.S. District Court for D.C. Then, one year with the D.C. District Court of Appeals before becoming a Supreme Court justice.

This is a huge moment in history and one that will surely change the dynamic of the court, which is hearing cases that challenge the Indian Child Welfare Act and Indian gaming later this year.

Record on federal Indian law

Many Indigenous leaders, organizations and nations have praised the confirmation of Jackson. However, she has only ruled on two cases, out of some 500 during her tenure as a federal judge, that involved federal Indian law or Indigenous nations, making it too hazy to deduce her judicial philosophy, knowledge of federal Indian law or more importantly how she will rule.

One of the few opinions she wrote involving federal Indian law was in Fredericks v. Department of the Interior.

“Children of a deceased member of the Three Affiliated Tribes of the Fort Berthold Reservation sought to cancel an oil and gas lease on land belonging to their father and held in trust by the Department of the Interior,” the Native American Rights Fund wrote in its report on Jackson. “They argued that the lease was invalid under the Fort Berthold Mineral Leasing Act, and that, pursuant to the American Indian Probate Reform Act, existing lease proceeds should be distributed to them rather than to their late father’s non-member widow.”

The descendent’s children requested an injunction on payments being paid out to the non-member widow until the merits of their case was determined. Jackson denied the injunction for two reasons, the case had likely no merit under the Interior’s interpretation of the American Indian Probate Reform Act and the decedent's children claimed “irreparable harms” if the payments were given to the non-member widow, but that was not entirely true as the descendant’s children filed a claim with the Court of Federal Claims to regain their losses.

In Mackinac v. Jewell, the Mackinac Tribe, a tribe not federally recognized, signed a treaty with the U.S. in 1855 but had not gone through the federal recognition process, requested that the court declare the tribe a federally recognized tribe and order the Interior to assist the tribe in organizing a government under the Indian Reorganization Act. Jackson wrote a memorandum opinion, which is a statement that gives the opinion of the court but cannot be cited as precedent, stating that federally recognized tribes “enjoy a ‘government-to-government’ relationship with the United States.” However, a tribe has to be federally recognized to have that government-to-government relationship.

“Plaintiff (Mackinac Tribe) must exhaust its administrative remedies by undergoing the administrative process for formal recognition before it may file a lawsuit seeking the benefits of the (Indian Reorganization Act),” Jackson wrote.

In these two cases, Jackson ruled against Indigenous plaintiffs but these cases were fact-based and centered on specific statutes that didn’t require an in-depth analysis of federal Indian law, concluded NARF. In both her rulings it was clear that Jackson understood the unique, nation-to-nation relationship that Indigenous nations have with the United States. She also stated that the federal government does have treaty obligations to meet in the areas of health, education and other social programs.

Reactions from Indian Country

In a joint letter the Native American Rights Fund and the National Congress of the American Indians stated, “It is critical that Supreme Court justices understand the political status of Tribal Nations and the unique context, history, and application of federal Indian law to support tribal government sovereignty. We welcome the opportunity to further support this engagement and education.”

“What is clear from Judge Jackson’s judicial record and Senate Judiciary hearing is that she is eminently qualified, a person of the utmost integrity, and incredibly respected by her colleagues and peers. Further, her educational and professional backgrounds will add additional perspectives to the highest court in the United States which are essential to ensuring that we have a court that understands and represents the wide spectrum of the legal profession.”

On the day of Jackson’s senate confirmation, NCAI tweeted they were looking forward to seeing the new justice build her knowledge of tribal sovereignty.

Others in Indian Country had this to say:

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