Since 1990, Congress has designated November National Native American Heritage Month. The purpose of this tradition is to honor the contributions made to the United States by the first Americans. This year, the White House issued a new proclamation, declaring that November would also be “National American History and Founders Month.” The announcement of the inaugural Founders’ Month can be found on WhiteHouse.gov; however, President Trump’s statement recognizing Native American Heritage Month is noticeably absent from public view.
Celebrating the men who stole Native American land and kicked off centuries of assault on Native people during the month set aside to celebrate indigenous peoples’ history is a brazen attempt to reclaim the historical narrative of our country, and part of his record of hostility towards Native Americans. Just days after President Trump assumed office, he signed an order approving the completion of the Dakota Pipeline, which runs through sacred tribal land and threatens to contaminate the primary drinking water supply of the Standing Rock Sioux. The Standing Rock Sioux, joined by other tribes, had been fighting the pipeline since 2014. Trump limited Medicaid access to Native Americans. He eroded Bears Ears National Monument. Trump has also regularly slammed Elizabeth Warren for her claim of Native American ancestry by calling her “Pocahontas,” a racial slur. In another instance, he made a highly offensive reference to the Wounded Knee Massacre, which was widely condemned.
Not surprisingly, when it comes to nominating federal judges, President Trump has repeatedly chosen individuals who have demonstrated their opposition to Native American rights. As Native Alaskans made clear, Brett Kavanaugh’s confirmation “endangered” tribal citizens “because of his erroneous views on indigenous rights and tribal sovereignty.” These tribal leaders successfully educated Lisa Murkowski to the danger Kavanaugh posed if confirmed.
Eric Miller, a Trump judge sitting on the Ninth Circuit, has a lengthy and disturbing record of litigating cases against tribal recognition, treaty rights, land rights, and sovereign immunity; both the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) opposed his confirmation. As the National Congress of American Indians and the Native American Rights Fund wrote, “[h]is advocacy has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights.”
Prior to his confirmation, Patrick Wyrick, a Trump judge in the Western District of Oklahoma, served as lead counsel and negotiator for the Oklahoma Attorney General’s Office in a five-year dispute over water rights with two of Oklahoma’s largest Indian tribes — the Chickasaw Nation and Choctaw Nation of Oklahoma. Wyrick also fought tribal sovereignty in amicus briefs and Supreme Court petitions on behalf of Oklahoma. Lawrence VanDyke, a recent Trump nominee to the Ninth Circuit, argued in a brief that the Agua Caliente Tribe did not have a federally reserved right to the groundwater under their reservation. In addition to these judges, there are a host of other Trump Judges who have also demonstrated their disdain for Native American rights prior to being confirmed to a lifetime seat on the federal bench.
Unfortunately, Trump judges have brought their hostile attitudes towards Native American rights with them to the federal bench. Justice Brett Kavanaugh dissented from a case honoring an 1868 treaty between the Crow Tribe and the federal government, involving the right to hunt off their reservation on unoccupied lands. He also dissented from a case affirming Yakama Nation rights under an 1855 treaty, prohibiting Washington from taxing a Yakama trucking company for using state highways to transport fuel to the Yakama Nation.
Justice Neil Gorsuch rejected the appeal of an Eighth Circuit decision that made it harder for Native Americans to vote. The case involved a law that required voters to present qualifying ID in order to cast a ballot. An ID card would not be valid unless it contained the voter’s current residential street address. This requirement disproportionately burdened Native Americans because many do not have residential addresses; they have their mail delivered to a post office box rather than to a physical address. Gorsuch allowed the lower court decision to stand, effectively disenfranchising 10% of all voting age Native Americans in North Dakota.
In one recent case, a three-member panel on the Fifth Circuit (that did not include any Trump judges) voted to overturn a lower court decision that found certain provisions of the Indian Children Welfare Act (“ICWA”) to be unconstitutional. The ICWA established “minimum Federal standards for the removal of Indian children from their families and placement of these children in foster care or in adoptive homes that reflect Indian culture.” It was passed to “in an attempt to fix rampant abuse within child protection measures applying to Native American children.” Shortly after this decision came down, a majority of the judges on the Fifth Circuit, which includes five Trump appointees, voted to reconsider its decision en banc. This will give the new Trump judges on the court an opportunity to weigh in and, potentially, undue crucial provisions of this important law.
Judge L. Steven Grasz, one of President Trump’s appointees to the Eight Circuit, wrote an opinion in another case that eroded the authority of tribal courts to hear cases involving issues impacting tribal members. The case involved a suit brought by the MHA (Mandan, Hidatsa, and Arikara) Nation in tribal court against multiple oil and gas companies who operated wells on the reservation that burned off natural gas. The Tribe argued that there was technology that could capture this gas instead of letting it flare, and they sought royalties from the defendants for the wasted profits. Before the tribal court had reached the merits of the case, the Eight Circuit ruled to uphold an injunction on the lawsuit on the grounds that the Tribal Court did not have jurisdiction. Under the Supreme Court’s ruling in Montana v. U.S., tribal courts have typically had authority to hear cases involving contract disputes between tribal members and nontribal parties. Yet, Judge Grasz reasoned that tribal court did not have jurisdiction over the defendants because the issues in dispute did not affect the “political integrity, the economic security, or the health or welfare of the tribe.” The establishment of tribal courts was “the result of the inherent authority of tribal nations to enact their own laws and to be governed by them.” Judge Grasz’s decision severely undermines this important element of tribal sovereignty.
As we honor the contributions of Native Americans to our country, it is important to highlight how much #CourtsMatter to Native Americans. Our federal judiciary has the final say on issues that are critical to protecting the rights and interests of Native Americans, including their sovereignty, voting and treaty rights, and land use laws.