Supreme Court

Udall Statement on Judge Kavanaugh

Matthew L.M. Fletcher

Here:

Udall: Kavanaugh’s Confirmation Hearings Reveal Deeply Troubling Views on Indian Law and Policy

WASHINGTON — Today, U.S. Senator Tom Udall, vice chairman of the Senate Committee on Indian Affairs, issued the following statement expressing his deep concerns about Supreme Court nominee Brett Kavanaugh’s views on Indian law and policy:

“Judge Kavanaugh’s confirmation hearings have only reinforced my serious concern that his confirmation poses a real threat to bedrock federal Indian law and policy principles that have guided the high court for decades. Judge Kavanaugh has shown in his writings, opinions, and emails that he is a jurist who would call into question the basic principles of Indian law and fails to appreciate the rights of indigenous people in the United States.

“From the documents I have reviewed so far, and based on information revealed during the hearings, I am convinced that Judge Kavanaugh is no friend to Indian Country. He openly characterized federal protections for Native Hawaiians as unconstitutional, and argued that ‘any racial group with creative reasoning can qualify as an Indian tribe.’ He even questioned the constitutionality of programs dedicated specifically to Native Americans, a view that could upend decades of progress for Indian Country on everything from housing to government contracting. And considering the sheer number of documents that are still being shielded from public and Senate view, we may have only seen the tip of the iceberg when it comes to Judge Kavanaugh’s willful misunderstanding of the rights held by Native communities, including Alaska Native Villages.

“As vice chairman of the Senate Committee on Indian Affairs, I support the exercise of Tribal sovereignty and work to ensure that the United States upholds its trust responsibility to Indian Tribes, Alaska Native Villages, Native Hawaiians and all Native communities throughout the country. And as a United States Senator, it is my constitutional duty to provide advice and consent for judicial nominations to the Supreme Court. I will vote no on Judge Kavanaugh’s confirmation to the United States Supreme Court, for a variety of reasons. But Judge Kavanaugh’s dismissive, and often outright hostile, view of the federal trust relationship runs contrary to 200 years of Supreme Court precedent and deserves special attention. His confirmation risks unwinding decades of progress for all of Indian Country, from New Mexico, to Alaska and Hawaii, and would lend credibility to unfounded attacks on federal programs that serve all Native communities.

“I believe Judge Kavanaugh poses a serious threat to the rights of Native communities across this nation. I encourage my colleagues on both sides of the aisle who are committed to upholding our trust responsibilities to carefully scrutinize Judge Kavanaugh’s troubling record as they consider whether they can support his confirmation.”

The Onion: “Kavanaugh Surprised Senate Not Questioning Fact He Never Went To Law School”

Matthew L.M. Fletcher

Here.

Udall Requests Kavanaugh Records on Native American Issues

Matthew L.M. Fletcher

From the press release:

Udall Requests Kavanaugh Records on Native American Issues

Seeks all records pertaining to Kavanaugh’s involvement with Native American issues during tenure as Staff Secretary and White House Counsel

WASHINGTON – Today, U.S. Senator Tom Udall (D-N.M.), vice chairman of the Senate Committee on Indian Affairs, formally requested all records pertaining to Supreme Court nominee Judge Brett Kavanaugh’s involvement with Native American issues during his tenure as White House Staff Secretary and as White House Counsel.

In a letter to Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Udall asked Grassley to turn over all records under his control pertaining to Kavanaugh’s work on Indian Affairs issues. Udall also asked that Grassley request all records from the National Archives regarding Kavanaugh’s time as Staff Secretary and White House Counsel related to Native American matters.

“Decisions made by the Supreme Court have a significant impact on nearly all aspects of the everyday lives of Native Americans,” Udall wrote. “In the past few years alone, the Supreme Court has ruled on cases that further defined the contours of the United States’ government-to-government relationship with Indian Tribes, including: the extent to which an Indian Tribe’s treaty with the United States protects its subsistence practices from state intrusion; the scope of an Indian Tribe’s sovereign immunity; and the scope and extent of a Tribal member’s parental rights over a Native American child.”

“The Supreme Court’s influence is particularly acute in Indian Country, given the United States’ treaty and trust responsibility,” Udall continued. “So that members of this Committee—and the entire Senate—may adequately consider Judge Kavanaugh’s views on Indian Affairs issues, I respectfully request that you make available to me and my staff all records that pertain to Judge Kavanaugh’s involvement with Native American affairs while serving at the White House as Staff Secretary and as White House Counsel.”

The full text of the letter is available here.

Background Materials in Washington State Department of Licensing v. Cougar Den, Inc.

Matthew L.M. Fletcher

Supreme Court

–Merits Stage

Joint Appendix

Petitioner’s Brief

SG Brief

Respondent’s Brief

Sacred Ground Legal Services Amicus Brief

Yakama Nation Amicus Brief

Nez Perce Tribe Amicus Brief

NCAI Amicus Brief

Reply Brief

–Cert Stage

Cert Petition

Cougar Den Cert Opp

Reply

SG Brief

supplemental brief for respondent in response to brief of us solicitor general

Washington Supreme Court

Here is the opinion in Cougar Den Inc. v. Washington State Dept. of Licensing.

Briefs:

92289-6 Appellant’s Opening Brief

92289-6 Appellant’s Reply

92289-6 Appellant’s Response to Amicus Brief

92289-6 Respondent’s Brief

92289-6 Yakama Nation Amicus Brief

High Country News: “The next Supreme Court pick could shape Indian law for decades”

Matthew L.M. Fletcher

Here.

Background Materials in Sharp v. Murphy (formerly Carpenter v. Murphy & Royal v. Murphy)

Matthew L.M. Fletcher

Tenth Circuit opinion:

MURPHY v ROYAL OPINION

Order Denying En Banc Petition [amended panel opinion]

Here are the merits briefs:

Joint Appendix

2018 09 24 US divided argument motion

2018 09 26 MCN Motion for Oral Argument

Petitioner’s Briefs

Petitioner’s Brief

United States Brief in Support of Petitioner

States Amicus Brief in Support of Petitioner

Environmental Federation of Oklahoma Amicus Brief

International Municipal Lawyers Association Amicus Brief

Oklahoma Independent Petroleum Association Amicus Brief

Oklahoma Sheriffs_ Association Amicus Brief

Reply Brief

petitioner_s supplemental brief

united states supplemental brief

Respondent’s Briefs

Respondent’s Brief

Cherokee and Scholars Brief

Choctaw and Chickasaw and State Officials Amicus Brief

Former US Attorneys’ Amicus Brief

Muscogee (Creek) Nation Amicus Brief

National Indigenous Women’s Resource Center Amicus Brief

NCAI Amicus Brief

respondent_s supplemental brief

supplemental brief of amicus curiae muscogee creek nation

Cert stage briefs:

Cert Petition

Murphy BIO FINAL

US Amicus Brief Royal v. Murphy

No. 17-1107 Murphy Reply — Final

Environmental Federation Of Oklahoma Inc Amicus Brief

OIPA Amicus Brief

Tenth Circuit en banc stage materials:

2017 09 21 petition for rehearing

2017 10 10 u.s. amicus in support of petition

appellant’s resp to en banc pet

muscogee (creek) nation amicus brief in opposition to en banc pet

amicus mtn ok oil and gas et al

motion by ok independent petroleum assn to file amicus brief

ok municipal league mtn to file amicus

united keetoowah band amicus resp to en banc pet

Tenth Circuit panel stage materials:

Appellant’s Brief Murphy v Royal

MCN & Seminole Nation Amicus Curiae Murphy v Royal

BRIEF AMICUS CURIAE OF THE UNITED KEETOOWAH BAND

BRIEF OF RESPONDENT-APPELLEE

Appellant’s Reply Brief

APPELLANT’S NOTICE OF SUPPLEMENTAL AUTHORITY

MOTION FOR PERMISSION TO PARTICIPATE IN ORAL ARGUMENT AS AMICUS CURIAE

Order Granting Oral Argument

 

Stand Up For California v. Dept. of Interior Cert Petition

Matthew L.M. Fletcher

Here:

sufc cert petition

Questions presented:

1. This case presents the question whether the Secretary may conclude that a casino “would not be detrimental to the surrounding community” despite uncontroverted evidence the casino will have unmitigated detrimental impacts to the community.

2. This case presents the question whether multiple Indians residing on the same reservation are, per se, an “Indian tribe” irrespective of the individual Indians‘ tribal affiliations, if any.

Lower court materials here.

 

Judge Kavanaugh’s Indian Law Record [Updated]

Matthew L.M. Fletcher

The judge nominated to replace Justice Kennedy, Brett Kavanaugh, is a D.C. Circuit judge, originally nominated by President Bush in 2006. He has written one opinion in an Indian law case, Vann v. Dept. of Interior (vann v doi), plus one other opinion in which an Indian tribe was the plaintiff that was not really an Indian law case but instead an administrative law matter, Hoopa Valley Tribe v. FERC (hoopa v ferc). He also wrote a short concurring and dissenting opinion in a matter involving the USA Pact Act, Gordon v. Holder (gordon v holder). In none of these cases did he write in support of tribal interests, though none of these opinions betrays any general anti-tribal leanings, either.

Vann was a suit in the long-running Cherokee Freedmen dispute; Judge Kavanaugh wrote an opinion affirming the dismissal of the Vann plaintiff’s suit against the Cherokee Nation, but allowed the suit to proceed against the Principal Chief of the Cherokee Nation in his official capacity.

Hoopa involved the tribe’s challenge to the licensing of the Klamath River Dam. The permanent license had expired and was being operated pursuant to annual licenses. The tribe argued the annual licenses were detrimental to the fish in the Klamath River and asked for conditions to be imposed on the dam operator to protect the fish. The court rejected those claims.

Gordon involved the interlocutory appeal by the federal government of an injunction against the enforcement of the USA Pact Act, a federal law that effectively gutted the intertribal trade in cigarettes. For about a minute and a half, everyone was excited. Judge Kavanaugh would have dissolved the injunction on the grounds that the plaintiff’s constitutional challenge to the Act had no basis. He was right, and eventually the D.C. Circuit dismissed remaining challenges to the constitutionality of the Act a few years later.

Judge Kavanaugh’s remaining cases involve issues in which he participated but did not write. Amador County v. DOI (amador county v doi 2014) was about the denial of permissive intervention in a lawsuit. CETAC v. Kempthorne (cetac v kempthorne) affirmed the authority of Interior to acquire land in trust for a Michigan tribe recognized in the late 1990s; it’s a pre-Carcieri case. Felter v. Kempthorne (felter v kempthorne) involved the dismissal of trust breach claims by mixed-blood Utes. Navajo Nation v. DOI (navajo nation v doi) involved the dismissal of funding claims under the ISDEAA for failure to meet the statute of limitations; Judge Kavanaugh concurred and write a short opinion suggesting that the statute might be equitable tolled because of a government shutdown, but not here. And finally, Timisha Tribe v. Salazar (timbisha v salazar) involved the dismissal of claims brought by a faction of that tribe seeking individual distributions of Indian Claims Commission judgments.

UPDATE: Judge Kavanaugh participated in at least one Indian law matter, as counsel of record filing an amicus brief for a conservative, anti-minority rights coalition of amici in Rice v. Cayetano: rice v cayetano amicus brief

UPDATED UPDATE: News coverage on Sen. Hirono’s release of other Native Hawaiian related docs.

Additional Update: Are Hawaiians Indians? The Justice Department Thinks So [Wall Street Journal op ed]

High Country News: “Why Justice Anthony Kennedy wasn’t good for Indian Country The retiring Supreme Court justice leaves a legacy of anti-tribal votes.”

Matthew L.M. Fletcher

Here.

Reflections on Justice Kennedy’s Indian Law Legacy

Matthew L.M. Fletcher2 Comments

My most enduring memory of Justice Kennedy is no doubt watching him lean over the bench, red faced and angry, screaming/yelling/lecturing at Neal Katyal during the Dollar General oral argument. I concluded then, if I hadn’t already before that moment from his writings, that Justice Kennedy was so disturbed by tribal jurisdiction over non-Indians and non-Indian businesses that he angrily wanted to protect a non-Indian sexual predator from the horror of being subject to a tort claim in tribal court.

Justice Kennedy was confirmed for SCOTUS in 1988. His first vote in an Indian law case was in Oklahoma Tax Commission v. Graham. His last vote in an Indian law case was in the Upper Skagit matter (he recused in the culverts case). During his tenure, tribal interests cleanly won 15 cases and cleanly lost 40 cases. There were two cases in which there were two or more issues in which tribal interests won and lost. There were three cases decided by 4-4 tie votes (including one which Kennedy was recused), and in which tribal interests had prevailed below. There were two non-criminal cases in which the interests of individual Indians were at play, making it difficult to declare it a clean win or loss for tribal interests. There was one case the Court remanded (not talking about Upper Skagit) without a clear winner. In short, it was/is a bad time for tribal interests — just under a 30 percent win rate for tribes, adding in the tie cases.

Justice Kennedy’s voting record was overwhelmingly oppositional to tribal interests. Kennedy voted cleanly in favor of tribal interests 11 times (and that includes Lara, in which he wrote a scathing opinion blasting tribal powers, and nearly half of those votes were in the past few years), and voted cleanly against tribal interests 45 times. There was one case where voted to split issues. We can and should presume he was an anti-tribal vote in both of the 4-4 tie cases (and would have been a deciding vote against the tribes and the US in the culverts case had he not recused). I count just under a 20 percent pro-tribal vote rate for Justice Kennedy.

Justice Kennedy wrote relatively few Indian law opinions, as few as Justice Scalia. It should be clear to observers that during this period, Chief Justice Rehnquist, Justice Thomas, and junior justices carry the conservative side’s laboring oar in Indian law, not right wing stalwarts who write the federalism and anti-civil rights opinions.

The most important majority opinion Justice Kennedy wrote was Duro v. Reina, though Rice v. Cayetano comes in a close second. Duro really shouldn’t be considered an important opinion because it was so clearly wrong on so many levels Congress enacted a temporary Duro fix within weeks of its announcement, making the fix permanent within a year or so. Perhaps because the principles Justice Kennedy advanced in Duro were principles he had been working with in his own mind since at least the 1970s when he dissented as a Ninth Circuit judge in Oliphant [544_f.2d_1007] — this is America where Americans must consent to government and non-Indians cannot choose to be subject to tribal jurisdiction because they cannot be tribal citizens — he seemed to ache to have an opportunity to strike down the Duro fix. His concurring opinion in United States v. Lara lays out how his consent theory would be enough to kill the Duro fix and all but asks the Court to seek a vehicle out for review, a vehicle that never came (sorry Russell Means, you shouldn’t have hired a lawyer). Maybe the biggest problem for Kennedy’s consent theory is that it’s completely farcical and simply not grounded in the Constitution or reality (try driving from Michigan to New Mexico just to vote, not that I would have voted for Gavin even if I could vote — go Deb Haaland!).

For all my criticism, I have a favorite Kennedy opinion, his lower court opinion in United States v. Finch [548_f.2d_822], a precursor to the Montana v. United States case in which SCOTUS held that the Crow Nation did not possess the Big Horn River. Kennedy wrote strongly in favor of the tribe’s ownership, guaranteed by treaty, an opinion that shows how completely misguided Justice Rehnquist’s Montana decision actually was. If he had been that judge during his tenure as a Supreme Court judge he’d be celebrated, even worshipped, by Indian country. Instead a collective “meh” upon his retirement, Indian country would be mourning the retirement of a great justice.