Why AFN wants Murkowski to reject Kavanaugh

Lisa Murkowski at AFN 2015
Sen. Lisa Murkowski addresses the Alaska Federation of Natives Convention on Oct. 16, 2015. (Photo by Mikko Wilson/KTOO)

Sen. Lisa Murkowski still isn’t saying how she’ll vote on the nomination of Brett Kavanaugh to the Supreme Court. But Wednesday, a powerful voice joined the Alaskans urging her to vote no: the Alaska Federation of Natives.

Listen to Alaska Public Media’s Washington correspondent Liz Ruskin discuss it with Alaska News Nightly host Casey Grove.

AFN doesn’t usually weigh in like this. It probably won’t determine her vote on its own. Murkowski said she is going over everything Kavanaugh has written so she can decide for herself and so she doesn’t have to rely on what other people tell her he wrote. But AFN is an important constituency to her. In 2010, AFN was part of that massive effort to get her elected as a write-in.

AFN’s reasoning to ask Murkowski to reject him closely parallels a white paper written by Heather Kendall-Miller, a Native American rights attorney. Their reasoning is very heavy on constitutional law, specifically about Congress’s power to pass laws for the benefit of Indians.

Kendall-Miller recorded a radio ad for an anti-Kavanaugh group. In it, she says, “Kavanaugh has a history of suggesting that Native Hawaiians shouldn’t qualify for the same constitutional protections that Lower 48 Indian tribes receive. If Kavanaugh believes that Native Hawaiians don’t qualify for the same benefits and protections as other indigenous people, is there any question what he thinks about Alaska Natives?”

Judge Kavanaugh’s known thoughts about Native Hawaiians come from a 1999 op-ed he wrote. It was in the Wall Street Journal and he was the co-author. In this op-ed, Kavanaugh disputes that Native Hawaiians fit the definition of “Indians” as set out in the U.S. Constitution. Part of his argument is that they don’t live on reservations. And, according to his op-ed, if they’re not Indians as the Founding Fathers understood the term, any federal laws or programs that aim to improve the lot of Native Hawaiians are in danger of being judged as race-based privileges, just elevating one race over another, which would be unconstitutional.

The concern is that he would treat Alaska Natives as non-Indians, too, since the Constitution says nothing about Alaska Natives, and Alaska Natives don’t live on reservations either, most of them.

According to Heather Kendall-Miller, if Alaska Natives are no longer covered under the “Indian umbrella” under the term as it’s understood in the Constitution, the court could overturn most of the federal laws passed to help Alaska Natives. She said it could even result in overturning the 1971 Alaska Native Claims Settlement Act, which formed Alaska Native corporations, among other things.

It sounds far-fetched and unlikely. But as one concerned person  put it, things have been taken away from Native people since the country was founded.

Alaska Public Media

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