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Kavanaugh’s problematic track record on Native and Indigenous rights

Indigenous groups say the newly minted Supreme Court justice is not on their side.

Brett Kavanaugh has a history of issuing decisions that target the rights of Indigenous groups, and his record of questioning the necessity of federal programs or protections that benefit Native Americans and Native Hawaiians has many of them concerned. (Photo credit: Win McNamee/Getty Images)
Brett Kavanaugh has a history of issuing decisions that target the rights of Indigenous groups, and his record of questioning the necessity of federal programs or protections that benefit Native Americans and Native Hawaiians has many of them concerned. (Photo credit: Win McNamee/Getty Images)

Newly confirmed Supreme Court Justice Brett Kavanaugh has a history of issuing decisions that target the rights of Indigenous groups, and his record of questioning the necessity of federal programs or protections that benefit Native Americans and Native Hawaiians has many of them concerned.

On Indigenous Peoples’ Day, it’s worth exploring that history further.

This past summer, shortly after Kavanaugh was named as President Trump’s pick to fill Justice Anthony Kennedy’s vacant Supreme Court seat, Native groups and civil rights advocates stepped forward, arguing his past decisions suggested that he might ignore or trample the rights of Indigenous people as a Supreme Court justice.

“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,” queer, Indigenous activist and writer Rebecca Nagle wrote in a July column for Native News Online.

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Nagle specifically highlighted Kavanaugh’s past ruling in favor of allowing descendants of the Cherokee Freedmen to sue the tribe’s chief, who they said denied them citizenship owed them under an 1866 treaty. Additionally, in the years prior to his nomination, Kavanaugh ruled against the Hoopa Valley Tribe, which in 2012 had challenged the Federal Energy Regulatory Commission’s decision to grant power company PacifiCorp a renewed dam license the tribe claimed was detrimental to the fish in the Klamath River.

“If Brett Kavanaugh is confirmed, he will join a Supreme Court that has more Indian law cases on the docket this term than in years,” Nagle wrote. “…Given his overall voting record, it is hard to say how Kavanaugh will rule on other important issues facing Indian Country…but since taking the bench, he has decided against tribal interests in 2 out of 3 cases.”

Other Native groups have cited Kavanaugh’s past positions on relevant topics as proof he presents a danger to Indigenous tribes.

“AFN strongly urges the U.S. Senate to vote against Judge Kavanaugh,” the Alaska Federation of Natives wrote in a statement on September 12, opposing Kavanaugh’s nomination. “…The documents that have been released so far in relation to his nomination demonstrate how troubling his confirmation would be for Native peoples, particularly Alaska Natives and Native Hawaiians.”

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AFN, a statewide Native organization made up of 186 federally recognized tribes, criticized Kavanaugh’s past stances on the Indian Commerce Clause — which allows Congress to “regulate commerce with…Indian tribes” — as well as his positions on the special trust relationship between the government and Indigenous groups across the country, and political and racial classifications of groups like Native Hawaiians and Alaska Natives.

Of the Commerce clause, AFN argued that Kavanaugh “challenges the clause’s 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,” they wrote.

That same week, the Alaska House Bush Caucus, which provides tribal and rural representation in the state legislature, wrote a letter to Alaska Sen. Lisa Murkowski (R), who was considered a key swing vote in Kavanaugh’s confirmation, urging her to vote against him. The group pointed to concerns over Kavanaugh’s positions on “health care, women’s reproductive rights, and the United States’ special trust relationship with federally recognized tribes,” as well as the issues outlines in AFN’s letter two days earlier.

“Supporting Mr. Kavanaugh’s nomination is at odds with the interests and well-being of all Alaskans,” they wrote. “For the good of your constituency, we urge you to oppose his confirmation.”

Earlier in September, during Kavanaugh’s official confirmation hearing, Hawaii Sen. Mazie Hirono (D) pointed to the judge’s past comments on Native Hawaiians as particularly troubling.

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Kavanaugh had previously stated in a 2002 email, made public during the hearing, that “any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution” — in short, questioning whether native Hawaiians should be legally considered “Indigenous.” Kavanaugh also wrote an op-ed in the Wall Street Journal three years earlier, titled, “Are Hawaiians Native Americans?” in which he argued they should not be considered Indigenous because they “came from Polynesia” (Hawaii is part of Polynesia), had no independent governing system and elected leaders, and “[didn’t] even live together.”

“Judge Kavanaugh, it’s hard to believe you spent any time researching the history of Native Hawaiians,” Hirono said at the hearing. “…I think you have a problem here. Your view is that Native Hawaiians don’t deserve protections as indigenous people.”

Kavanaugh responded by suggesting Congress had the power to declare certain groups tribes if it wanted, and that the Supreme Court had sided with him previously.

Melissa Merrick-Brady, a former Spirit Lake Victim Assistance director in Fort Totten, North Dakota, offered a more dire outlook on Kavanaugh’s Supreme Court tenure in an op-ed last Thursday, warning Kavanaugh posed a dire “threat to tribal sovereignty and Native American rights.”

“His record makes clear that if a federal program that serves tribes or Native Americans were to be challenged before the Supreme Court he would take a ‘strict scrutiny’ approach to the issue and fail to support our rights,” she wrote.

Merrick-Brady, who also spent years working as an advocate for Native survivors of sexual assault, also homed in on the multiple allegations of sexual misconduct against Kavanaugh, all of which he has denied.

“As a survivor, I have spent my career fighting for a Native woman’s right to freedom from physical and sexual violence. Much of my work has been supported by the tribal provisions of the 2013 Violence Against Women Act Reauthorization Act which gave tribal nations an unprecedented ability to protect their female citizens,” she wrote. “…It pains me to think that our country’s leadership might allow such a figure to ascend to the highest judicial office in this land, allowing him to opine on whether I should be protected from violence, whether Native people deserve protections, and whether tribes possess sovereignty.”