In short, not much. But she might be a little bit more knowledgeable about Indian law than I previously thought. But some signs suggest she will be hostile toward tobacco/smokeshop-related cases.
1. United States v. Tohono O’odham Nation
We already knew Kagan likely will have to recuse herself from this case, which will be argued in the October 2010 Term sometime. In her Senate questionnaire, she describes the case on page 142. Earlier this month, she addressed the judges of the Federal Circuit and described the case again (here, pages 5-6). She also mentioned, but did not discuss the Navajo Nation cases involving the Peabody Coal claims (page 7).
Interestingly, leading up to her description of the T.O.N. case, Kagan mentioned a 1906 Indian law case, United States v. Cherokee Nation, 202 U.S. 101 (1906). She noted that the first woman admitted to practice in the Supreme Court (and in the Federal claims court), Belva Lockwood, successfully argued this case on behalf of the Eastern Cherokees at the age of 75, and won over $7 million for the tribe (here, pages 4-5).
2. American Indian Empowerment Fund. She remains a member (here, page 2).
3. Native American Alumni Celebration (Oct. 2007)
An agenda is available here, pages 132-34. The agenda included “A Conversation with Dean Elena Kagan,” but unfortunately there are no notes or materials on that conversation.
4. Navajo Nation Supreme Court Oral Arguments (2006)
Press coverage of this event is here, pages 109-112. Then-Dean Kagan is quoted as saying, “In an age of global conflict we have much to learn from the Navajo peacemaking court system.” (page 111)
5. Tobacco Settlement Negotiations (1990s)
Apparently, while part of the Clinton Administration, Kagan became known as a “wonderwonk” in these negotiations (here, page 99). She also helped to draft tobacco legislation for John McCain in 1996 (here, page 103). If for some reason one or more of the various cases involving the Tobacco Master Settlement Agreement reaches the Court, a safe bet would be that she will be hostile toward any Indian or tribal immunity argument.
Miscellany
Barney Frank is noted as believing the Supreme Court’s 11th Amendment jurisprudence is horrific, except for Nevada v. Hicks (?!?!?!) (page 127, here). Pretty sure he meant Hibbs.
Turtle Talk 