Brett Kavanaugh Poses a Threat to Native American Tribal Sovereignty

Donald Trump has a long history of racism when it comes to Native Americans. Since he’s become president, his constant references to Sen. Elizabeth Warren as “Pocahontas” are indicative of actual policy positions that are harmful. Rebecca Nagle at Native News sums up the record.

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.

Last April, I noted that the Trump administration’s position on work requirements for Medicaid signaled a threat to Native American tribal sovereignty. As Nagle points out, those rights are protected by federal Indian law, so they can’t be overturned simply by executive order. But the Supreme Court could step in to do it. That is one of many reasons why Native Americans are organizing to oppose the confirmation of Brett Kavanaugh.

When Sen. Mazie Hirono (D-HI) joined Sen. Cory Booker in releasing emails from Kavanagh that Republicans had labeled “committee confidential,” it was to highlight his statement that “any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.” Watch her grill the nominee on his ignorance about Hawaiian and Alaskan Natives.

While it’s true that Kavanaugh poses a threat to women’s reproductive rights, marriage equality, voting rights, and affirmative action, those things all affect Native Americans just as they do the rest of us. The impact he could have related to attempts by the Trump administration to gut environmental protections will have an immediate affect on Alaskan Natives, who are already experiencing the devastating impact of climate change. But it is the possibility that tribal sovereignty could be discarded in order to feed the coffers of oil and other extraction industries that would devastate Native communities.

Politicians don’t typically cater to the interests of Native Americans because they haven’t wielded much power in Washington. But as Jennifer Bendery points out, there is one critical vote in the Senate who owes her election to Native Americans: Sen. Lisa Murkowski (R-AK).

…the Republican senator owes her 2010 re-election to tribal communities, so anything harmful to them is going to be a significant issue for her.

That year, Murkowski unexpectedly lost her primary to a tea party challenger. She responded by running as an independent, launching a write-in campaign and winning the race against all odds. Whose support didn’t she have? The Republican Party. Whose support did she have? Alaska Natives, who turned out for her and fueled her victory.

“If the Alaska Native community raises its decibel level on matters from subsistence to civil rights, that would register with Sen. Murkowski,” said a source familiar with Murkowski’s thinking, who requested anonymity to speak freely.

Those communities are definitely speaking up.

In a letter sent to U.S. Senator Lisa Murkowski (R-Alaska), dated September 7, 2018, the president of the Central Council of Tlingit & Haida Indian Tribes of Alaska expressed its “strong disapproval of Supreme Court nominee Brett Kavanaugh.”

Central Council of Tlingit & Haida Indian Tribes of Alaska President Richard J. Peterson told Murkowski that Tlingit & Haida represents over 30,000 tribal citizens. He writes, “all of whom would be endangered by Judge Kavanaugh’s confirmation because of his errorenous views on indigenous rights and tribal sovereignty.”

Brett Kavanaugh’s confirmation to the Supreme Court would put a lot of the rights Americans have fought for at stake. But nowhere is that more true than for Native Americans, who have been the subject of brutality since this country’s founding.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60 .