What Does a Justice Kagan Mean for Indian Country?

The answer at this point is — nobody knows, or could possibly know.

Solicitor General Kagan has almost no paper record of scholarship on Indian law, no judicial opinions, and little else in the way of a paper trail. Her most intimate association with Indian Country is her membership (now likely former) on the board of the American Indian Empowerment Fund (as noted here), which probably came about as a concomitant duty related to her Harvard deanship and duties in filling the Oneida Chair at Harvard Law. As is well known, Harvard Law has had some difficulty in completing the requirements of the Oneida endowment (hiring a full-time Indian law prof), as the Chair is always filled by visitors. What this means is anyone’s guess, though some of my former law school colleagues are certain it is a bad thing she had trouble hiring minority law profs.

The only known impact of Kagan’s nomination if she is confirmed, is that she will likely be forced to recuse herself in the 2010 Term’s lone (so far) Indian law case, United States v. Tohono O’odham Nation (No. 09-846). Who knows how that will affect the decision, though the T.O.N. would only have to find four Justices to prevail (as would happen in a 4-4 tie). Once the T.O.N. case is decided, we may hear much more from a Justice Kagan, who perhaps will be tapped write some of the Indian law decisions (as junior Justices often are).

Which leads to my final comment. A Justice Kagan is yet another player from the elite of the legal profession, an elite that rarely has even more than a passing interest in Indian law and Indian Country. From Justice Brennan referring to Indian law cases as “chickenshit” (page 435 of The Brethren), to the modern and open hostility of most Justices to Indian cases, this does not bode well. It could, if a Justice Kagan is open-minded and willing to listen and learn, but more likely than not, she (as do most or all of the other Justices) may find her Indian law assignments a burden. That would be a shame.

Perhaps we’ll see.

4 thoughts on “What Does a Justice Kagan Mean for Indian Country?

  1. Paul Spruhan May 10, 2010 / 5:42 pm

    Not that it counts for much, but Harvard did invite and fund a visit by the Navajo Nation Supreme Court while Kagan was dean. She gave an opening address at the oral argument. She at least knows of the existence of tribal appellate courts.

  2. Sd grouch May 12, 2010 / 8:14 am

    Given that Ms. Kagan has NO practical experience with federal Indian case law she will probably mess it up like the Supreme Court has consistently done the last 10 years or so. So she invited some Dine to Harvard, here in SD, some Sicangu from the Rosebud Supreme Ct. frequently come to USD law and yet that has not led to greater understanding or cooperation between tribes and the state. Add to this her inability to fill a Native position at Harvard Law, demonstrates to me a lack of effort towards Natives that will show in any potential ruling she makes. My guess is that she would continue her middle course as a Justice and through no malice or design faciliate the Supreme Court’s continuing dismantling of jurisprudence, as witnessed by the Court’s ruling in the Long case.

  3. CJ May 12, 2010 / 10:26 pm

    May 10, 2010 President Obama nominated Elena Kagan to be the next justice of the U.S. Supreme Court, calling her a trailblazer and a voice we need on the Supreme Court. Kagan’s parents are first-generationer’s who emigrated from Eastern Europe. Facts: As dean of the Harvard Law School, Kagan hired Bush’s outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor, who is also regarded as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about ‘how proud’ she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post. She’s quoted saying, “I love the Federalist Society,” an extremist right wing group against democracy; for rolling back civil liberties and human rights protections; supporting torture, and corporatism. Five current Supreme Court justices are Federalist Society members: Roberts, Scalia, Alito, Kennedy, and Thomas.

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