Brett Kavanaugh, the New Supreme Court Associate Justice Nominee, Should be Questioned about Native Rights

U.S. Supreme Court nominee judge Brett Kavanaugh looks on in the East Room of the White House in Washington on July 9, 2018. REUTERS/Leah Millis via PBS

Commentary

Published July 10, 2018

Yesterday evening, President Trump announced his pick to replace Anthony Kennedy on the Supreme Court of the United States: Brett Kavanaugh. While the media has covered the potential impact of the court’s changing composition on many critical issues including reproductive health, workers rights, and marriage equality, what is distinctly missing from the national conversation is the future of Native American rights and tribal sovereignty.

U.S. Supreme Court in Washington, D.C. Native News Online photo by Levi Rickert

The Supreme Court has the authority to strengthen and diminish the laws that protect tribes’ treaty rights, jurisdiction, land rights, child welfare and more. Unlike almost every other area of law that is a combination of local, state and federal statutes, Indian law is distinctly federal. “Indians are more affected by federal law on a day to day basis than the average U.S. citizen,” says Dan Lewerenz staff attorney at Native American Rights Fund and citizen of the Iowa Tribe of Kansas and Nebraska.

If Brett Kavanaugh’s is confirmed, he will join a Supreme Court that has more Indian law cases on the docket this term than in years.

Kavanaugh is slated to face an intense battle over his confirmation. After Monday night’s announcement, Senate Democratic leader Chuck Schumer stated “I will oppose Judge Kavanaugh’s nomination with everything I have.” Kavanaugh currently sits as a Bush-appointed federal appeals court judge in the DC Circuit. As a former clerk for Justice Kennedy, Kavanaugh was considered a front runner for the nomination prior to Monday’s announcement. Kavanaugh famously worked for Kenneth Starr during the Bill Clinton investigation, but has more recently made statements that he believes the office of the president should be immune from criminal indictments.

When it comes to his record on Indian Law, Kavanaugh has written less than 10 relevant opinions, that “are not overtly pro-Indian or anti-Indian” says Matthew Fletcher, professor of law at Michigan State University and citizen of Grand Traverse Band of Ottawa and Chippewa Indians.

Kavanaugh’s most well known Indian law opinion is the 2012 Vann v the Department of the Interior, in which he ruled that the descendants of the Cherokee Freedmen had the right to bring suit against the tribe’s chief. The litigation ultimately resulted in a separate decision that granted Freedman descendents citizenship in Cherokee Nation based on their 1866 treaty rights.

Rebecca Nagle

Given his overall voting record, it is hard to say how Kavanaugh will rule on other important issues facing Indian Country. Appellate judges necessarily tend to follow precedent and thus appellate voting records are not an accurate indication of how a nominee will vote once on the Supreme Court. The National Congress of American Indians endorsed Gorsuch’s nomination based on his track record on the 10th Circuit, but, since taking the bench, he has decided against tribal interests in 2 out of 3 cases.

If confirmed, Kavanaugh would fill the vacancy left by the recently retired Anthony Kennedy. While Kennedy was seen as an important swing vote by the Left, his legacy on Native rights was distinctly one-sided. “From the point of view of tribal interests, his record was terrible,” says Fletcher. “He was adamantly opposed to any tribal jurisdiction over non-Indians.” Kennedy ruled against tribal interests more times than the late and ultra conservative Justice Antonin Scalia.  

Kennedy’s negative view of tribal jurisdiction was so radical, he ruled against tribes having criminal jurisdiction over any non-member, including other Natives. Writing for the Majority Opinion in Duro V Reina in 1990, Kennedy stated, “Criminal trial and punishment is so serious an intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States.” The decision was so disastrous it was quickly reversed by Congress.

With Kennedy’s legacy so clearly anti-sovereignty, will the new composition of the Supreme Court be better or worse for Native rights? While Kavanaugh’s personal record on tribal sovereignty is sparse, the people who picked his nominationTrump and the Federalist Societyhave a much more defined, and concerning, history.

Since taking office, Trump has moved to limit Medicaid access to Native Americans, diminished the Bears Ears National Monument, and greenlighted the controversial Dakota Access Pipeline. On the judicial front, the Trump administration petitioned SCOTUS to hear and overrule a 10th Circuit decision in Murphy v Royal, an important case affecting the treaty rights of Muscogee (Creek) Nation. The Federal government’s petition clearly favored the interests of oil and gas companies and in May the Supreme Court granted cert. Before taking office, Trump’s transition team promoted privatizing all remaining Native land to ease the path for oil and other resource extraction. While the office of the president does not have the authority to gut the statutes of federal Indian law that currently stand between the oil industry and minerally rich tribal lands, the Supreme Court does.

The Federalist Societythe organization that helped create Trump’s shortlist of nominees from which Kavanaugh was pickedseeks to reshape American democracy so that the role of the Federal government is limited and states have more authority. From Indian Removal to present day legal battles, the argument for states’ rights has a long history of undermining tribal interests and sovereignty. During the debate in the 2013 reauthorization of the Violence Against Women Act, the Federalist Society argued that expanding tribal jurisdiction over non-Indians was unconstitutional and that “tribal courts lack the experience or resources to protect constitutional rights of [non-Indian] criminal defendants.”

While Native American rights are unlikely to get much attention during the confirmation process, Supreme Court rulings on Indian law affect more people than just Indians. “The Supreme Court has tended to make big changes in core federal powers—and what I mean by that is gutting those federal powers—through federal Indian law,” says Fletcher. For organizations like the Federalist Society who seek to limit and shrink the reach of the federal government, Indian law is a convenient path to accomplish that mission, because no one is paying attention.

Reproductive health, marriage equality, voting rights and affirmative action are all issues that have a direct impact on the lives of Native Americans and will be closely watched by our communities. Yet, given the unique composition of federal Indian law, tribes have a deeply vested interest in the future of the Supreme Court. And while Kavanaugh is unlikely to be questioned about his position on issues like treaty rights or tribal jurisdiction over non-Indians, for the sake of Native rights and the integrity of the federal government, he should be.

Rebecca Nagle is a citizen of Cherokee Nation and a writer and organizer living in Tahlequah, Oklahoma.

 

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