Opposition to appointing Judge Brett Kavanaugh to the U.S. Supreme Court vacancy left by the retirement of Justice Anthony Kennedy is coming from the Alaska Federation of Natives.
In a statement released in mid-September, AFN said that the statewide Native organization is joining with colleagues and friends across Indian country in strongly opposing Kavanaugh for the Supreme Court because of, among other things, his view on rights of Native peoples.
AFN issued a statement saying that documents released to date in relation to his nomination “demonstrate how troubling his confirmation would be for Native peoples, particularly Alaska Natives and Native Hawaiians.
AFN described as “misguided” Kavanaugh’s view of the special trust responsibility of the federal government with federally recognized Indian tribes. “Kavanaugh’s writings demonstrate a limited view of the federal government’s power to deal with Native peoples under this relationship,” AFN said. “Specifically, he would only extend the special trust relationship to Indian tribes with his preferred history of federal dealings, including territorial removal and isolation.”
AFN cited concerns about Kavanaugh’s position on the Indian Commerce Clause, and whether it would apply to affairs beyond trade. AFN also cited whether Kavanaugh would be more conservative than Justice Clarence Thomas, who contested the authority of Congress to enact the Indian Child Welfare Act, as Thomas reasoned that the Indian Commerce Clause only provides federal authority over Indian trade.
AFN also noted that during his Senate Judiciary Committee hearing, Kavanaugh questioned the legitimacy of Native Hawaiian recognition, citing their different treatment by the federal government, and the act that they do not live on reservations or enclaves, AFN said. If Kavanaugh 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, and 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, AFN said.
“To confirm a nominee who does not understand or appreciate the position of Native Hawaiians, and who could weaken the special trust relationship Alaska Natives share with the federal government would be imprudent,” AFN said.