Are Native-related issues enough to sink the nomination of President Donald J. Trump’s choice for the Supreme Court?
The Senate is now considering Brett Kavanaugh’s nomination and a vote by the Judiciary Committee is expected on September 20. The president’s supporters are hoping that they have the votes to confirm Kavanaugh and he can begin his new job by the first Monday in October, the beginning of the new court term.
The Senate is closely divided, 51 Republicans and 49 Democrats. And if Democrats vote as a bloc, it will take two Republican Senators to reject the nominee. If there is a tie, Vice President Mike Pence would cast the deciding vote.
Alaska Native groups are counting on Sen. Lisa Murkowski to be one of those "no" votes. Alaska Sen. Dan Sullivan has said he will vote in favor of the nomination. Both are Republicans.
“Alaska tribes, despite being 4,000 plus miles away from the Capitol Hill hearing room, know the truth about Kavanaugh’s agenda and it could greatly endanger our rights and tribal sovereignty,” wrote Richard (Chalyee Éesh) Peterson, president of the Tlingit and Haida Tribes, in a letter to Murkowski.
Critics cites two reasons for Murkowski to vote no, Alaska Native subsistence fishing rights and Alaska Native voting rights. “The Supreme Court is set to hear Sturgeon v. Frost, a case that calls into question control of Alaska’s rivers. Currently, the feds have authority over the waters, protecting subsistence fishing rights for Alaska Natives through ‘rural preference.’ For many tribes and Alaska Natives, subsistence is a way of life rooted in the traditions of our ancestors and is foundational to the health and wellness of current and future generations. These are traditions that leaders like elder Katie John sacrificed greatly to protect.”
Peterson also cited Kavanaugh’s history on voting rights cases. “In 2011, the Justice Department objected to a South Carolina voter ID law that threatened to block tens of thousands of people from voting — many of whom were people of color. When South Carolina took the issue to court, Kavanaugh wrote the opinion upholding the state’s discriminatory law. And he refused to include language put forward by the other judges on the panel that acknowledged the critical role of the Voting Rights Act in preventing racial discrimination in voting,” Peterson wrote.
In an op-ed in the Anchorage Daily News, Native American Rights Fund attorney Heather Kendall-Miller said Kavaunaugh’s “harmful views on issues of import to Alaska Natives should caution against his nomination.”
Kendall-Miller cited the nominee’s record on environmental issues something that especially important because warming in the Arctic is occurring at a greater rate than in any other place in the Northern Hemisphere. “As a result, rural Alaskans dependent on subsistence resources are experiencing warmer winters, thinner ice, changing migration patterns, diseased fish and unpredictable weather patterns. In addition to affecting the food sources traditionally relied on by Alaska Native people, climate changes are affecting the very communities in which people live. As the land-fast ice and pack ice disappears, the coastlines, where most villages are located, are exposed to fierce winter storms that cause erosion and flooding, destroying homes, roads and infrastructure. Our senators are aware of these conditions, which should caution against his confirmation.”
She wrote: “Remember the significance of Katie John, the Ahtna elder who argued successfully for nearly 30 years that Title VIII of the Alaska National Interest Lands Conservation Act protected subsistence fishing in federal waters? Her legacy and court wins are now hanging in the balance due to Mr. Sturgeon and the state of Alaska's vigorous appeal. According to Mr. Sturgeon and the Walker administration, Congress left the state of Alaska in control of all waters within national parks, refuges and forests. He argues the term "public lands" doesn't include navigable waters anywhere. Mr. Sturgeon argues this is an issue of state sovereignty — "state's rights" — and wants to eliminate all federal power in these rivers. Again, Judge Kavanaugh's track record suggests he would support a state's rights approach to this controversy. His amicus brief supporting a white student's challenge to a Hawaiian trust set up to support educational endeavors of Native Hawaiians shows a level of insensitivity and outright animosity toward indigenous rights.”
Sen. Mazie Hirono, D-Hawaii, says Kavanaugh represents a particular threat to Native Hawaiians, especially in an era when President Trump has been attempting to zero out federal spending for Native Hawaiian housing and education programs. She posted leaked emails from Kavanaugh that showed his thinking about Native Hawaiians and race. The documents were stamped committee confidential.
“These are the docs Rs don’t want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form,” she said.
During the Senate hearings Hirono questioned Kavanaugh on Native Hawaiian issues and schooled him on the history. Kavanaugh has consistently argued as a lawyer and government official that Native Hawaiians should not have any legal status as Indigenous people (and even added that he did not view them as Indigenous.) He also co-authored a Supreme Court brief that said Hawaii violated the Constitution by permitting only Native Hawaiians to vote in elections for the Office of Hawaiian Affairs and that it represented a race-based approach.
Most Democrats have announced opposition to the Kavanaugh nomination.
Sen. Tom Udall, D-New Mexico, also cited Native issues in his declaration. “I believe Judge Kavanaugh poses a serious threat to the rights of native communities across this nation,” he said.
However two Democratic senators still on the undecided list are North Dakota’s Heidi Heitkamp and Montana’s Jon Tester. Both are facing re-election in states that Trump won easily.
A group of Native women recently published an open letter outlining their reasons for opposing Kavanaugh's confirmation to the Supreme Court.
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports