The Alaska Federation of Natives, a group that was a critical part of U.S. Sen. Lisa Murkowski’s 2010 write-in victory, announced on Wednesday that it is “strongly opposing” the nomination of Brett Kavanaugh to the U.S. Supreme Court.
The announcement comes as Senate Republicans are attempting to quickly confirm the conservative judge to the court ahead of midterm elections. Murkowski, a moderate who’s been tight-lipped about her assessment of President Donald Trump’s pick, is one of the two key Republicans votes Kavanaugh opponents are focusing pressure on.
Progressives have been raising the alarm bells on Kavanaugh on everything from reproductive rights and health care to presidential powers and climate change, but in the recent weeks there’s been heightened attention on Kavanaugh’s record when it comes to Alaska Natives and Indian Country. Among the committee confidential emails released by Senate Democrats last week was one by Kavanaugh that questioned the constitutionality of any programs for Native Hawaiians.
In the news release announcing AFN’s opposition to Kavanaugh, the group says his confirmation would be “imprudent,” “troubling” and “disastrous for Alaska.”
The announcement focused on three areas of concern with Kavanaugh: the Indian Commerce Clause, the special trust relationship between tribes and the federal government, and the political classification doctrine that focuses on tribal membership rather than ancestry.
Each area, AFN writes, could pose significant problems for Alaska Natives.
For example, Kavanaugh’s record suggests that he has a narrow view of the Indian Commerce Clause, restricting the law’s application to issues solely around trade. Justice Clarence Thomas holds a similar view, and argued against the Indian Child Welfare Act because it wasn’t strictly a trade issue.
“The result would be a wholesale reshaping of the body of law and policy that has governed Indian affairs for the past century and a half,” AFN said on the issue. “Confirming a nominee with this viewpoint would be disastrous for Alaska, and would roll back the gains of self-determination and usher back in the losses of termination.”
Kavanaugh’s also argued against the special trust relationship with Native Hawaiians, arguing that they shouldn’t qualify for the same protections as Lower 48 tribes because they didn’t go through the same things that Lower 48 tribes did. AFN argues the same troubled thinking could be extended to Alaska and pose a constitutional threat to the Alaska Native Claims Settlement Act.
“If he remains of the view that the special trust relationship only extends to Indian tribes with his brand of federal history, including territorial removal and isolation, he could very well rule that Congress lacks the authority to deal with Alaska Natives,” he said. “This thinking could overturn much, if not all, of the Alaska Native Claims Settlement Act, as well as all other federal legislation and regulations addressing Alaska Natives, tribes, corporations and organizations.”
Why it matters
The Huffington Post zeroed in on the weight the Alaska Native community could bring to bear on Murkowski’s decision in a story last week, noting that Alaska Natives could gain the senator’s attention in a way progressives may not.
“If the Alaska Native community raises its decibel level on matters from subsistence to civil rights, that would register with Sen. Murkowski,” an unnamed source familiar with Murkowski told the Huffington Post.
Murkowski and Maine Sen. Susan Collins complained about the knee-jerk opposition that Democrats mounted against Kavanaugh, arguing for a measured and “exacting” review of Kavanaugh’s record. AFN’s news release explains they took that same measured approach.
“The federal judicial appointment and confirmation process is designed to thoroughly vet nominees. As such, we did not immediately weigh in on President Trump’s choice to replace retiring Justice Anthony Kennedy. However, the questions and colloquies that came out of Judge Brett Kavanaugh’s Senate Judiciary hearings last week have necessitated us taking a position,” it wrote. “AFN joins our colleagues and friends across Indian country in strongly opposing Judge Kavanaugh for the Supreme Court because of, among other things, his views on the rights of Native peoples.”
AFN is Alaska’s largest and oldest Native organization. Its membership includes 186 federally recognized tribes as well as village corporations, regional corporations and regional non-profit organizations.
Alaska U.S. Sen. Dan Sullivan is already on board with Kavanaugh’s confirmation, a position that he announced just three days after Trump announced his nomination and well before any of the Senate nomination process began.