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Kavanaugh’s record raises concerns on Native issues

  • Author: Heather Kendall Miller
    | Opinion
  • Updated: September 1
  • Published September 1

President Donald Trump’s Supreme Court nominee, Judge Brett Kavanaugh, arrives to meet with Sen. Chris Coons, D-Del., a member of the Senate Judiciary Committee which will oversee his confirmation, on Capitol Hill in Washington, Thursday, Aug. 23, 2018. (AP Photo/J. Scott Applewhite)

President Trump has nominated Judge Brett Kavanaugh to the U.S. Supreme Court. As the Senate scrutinizes Kavanaugh's record and history, his harmful views on issues of import to Alaska Natives should caution against his nomination.

Voting rights: American Indian and Alaska Native voters continue to encounter language barriers, enormous distances to polling places, purged voter rolls, and arbitrary changes in voter identification laws. Judge Kavanaugh's track record shows little regard for minority voters. In a recent case, he voted to uphold a South Carolina voter ID law that the Department of Justice found would disenfranchise more than 80,000 minority registered voters who did not have the ID required by the law. Instead of assessing the law's racial disparity impact, he found that South Carolina had a "legitimate" interest in enacting stringent regulations to combat voter fraud — despite no evidence from the state demonstrating actual instances of in-person voter fraud itself.

Environmental protections: According to a comprehensive report issued by the U.S. Geological Survey, 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.

Last year, in a majority opinion, he held that the Environmental Protection Agency lacks the authority to regulate hydrofluorocarbons, chemicals linked to global warming. Kavanaugh wrote: "EPA's well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate." Kavanaugh took similar approaches in two major 2012 rulings. In one, Kavanaugh dissented from the circuit which upheld the EPA's ability to regulate greenhouse gases. In another, Kavanaugh wrote the majority opinion to eliminate a 2011 EPA rule limiting emissions from power plants and other sources to reduce pollution in neighboring states.

Subsistence fishing rights: The U.S. Supreme Court has accepted review of the Sturgeon case, a case that could abolish all Alaska Native subsistence fishing rights and overturn the Katie John rulings — so that one man can drive a hovercraft in a national park. 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.

Judge Kavanaugh's record is clear on these essential issues. Our senators should deny support of his nomination.

Heather Kendall Miller is an attorney with the Native American Rights Fund.

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