In Address to National Congress of American Indians, Udall Discusses Kavanaugh Nomination, Indian Affairs Committee Work

Sep 12, 2018

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For Immediate Release

September 12, 2018

Contact: Ned Adriance

202.228.6870 | news@tomudall.senate.gov | @SenatorTomUdall

 

 

WASHINGTON – Today, U.S. Senator Tom Udall (D-N.M.), vice chairman of the Senate Committee on Indian Affairs, addressed the National Congress of American Indians at its 2018 Tribal Unity Impact Days. In his remarks, Udall discussed the committee’s work to achieve Indian Country’s priorities and his commitment to fighting for issues vital to tribal communities – including reauthorizing the Violence Against Women Act (VAWA) and strengthening its tribal provisions. Udall also highlighted his concerns regarding U.S. Supreme Court nominee Judge Brett Kavanaugh’s deeply troubling views on Indian law and policy.

 

Key quotes from Senator Udall’s remarks are below:  

 

On Judge Kavanaugh’s deeply troubling views on Indian law and policy: “The information we do have on Judge Kavanaugh’s views on Native issues…is disturbing. … Judge Kavanaugh wrote an extremely offensive op-ed in the Wall Street Journal – glibly questioning federal protections for Native Hawaiians and our nation’s commitment to our indigenous peoples, saying ‘Any racial group with creative reasoning can qualify as an Indian tribe.’  Such an offensive and inaccurate view demonstrates a level of misunderstanding -- perhaps even willful ignorance -- that no nominee to the highest court in the land should have. What’s more, recently disclosed emails that Judge Kavanaugh wrote as a lawyer for President George W. Bush confirm that he is a dangerous nominee for all indigenous communities in our country.  I believe that, if he is placed on the Supreme Court, the constitutionality of federal programs that benefit all Native peoples is at risk.”

 

“Whether it’s Judge Kavanaugh’s hostility to indigenous peoples – or to voting rights or measures to address climate change – his record does not bode well for the welfare of Native peoples.  Or the American public. This nomination is too consequential. There is too much at stake. I cannot and will not support this nomination.”

 

On Udall’s work on the Indian Affairs and Appropriations Committees to provide resources for Indian Country: “I’m especially proud that two of my bills -- the Native American Business Incubators Program Act and the Esther Martinez Native Languages Preservation Act -- passed the full Senate.  We must now get them through the House. … As tribal leaders and advocates, you know how important it is to provide the funding necessary to ensure key programs like education, health, and housing serve Indian Country and meet the federal government’s trust responsibilities to Native Americans.  As Ranking Member on the Subcommittee on Interior Appropriations, with jurisdiction over BIA and IHS budgets, I strive to achieve those goals.  For fiscal year 2019, I worked across the aisle with my colleague Senator Murkowski to secure increases for vital programs in Indian Country in the Senate bill, providing $5.8 billion for IHS -- $234 million more than last year and $348 million more than the president’s budget request.  We also secured $3.1 billion for programs provided through the BIA and BIE – an increase of $13 million more than the fiscal year 2018 level.”

 

On the Violence Against Women Act: “VAWA is up for reauthorization. Its authorization ends September 30th. My party supports reauthorization and we are working toward that.  VAWA has been the subject of partisan battles in the past, especially in the House of Representatives.  And this go-around is likely going to be no different. Domestic violence against women and children ruins lives, leaves scars, results in pain and death. Women and children should not live in fear.  Reauthorization of VAWA should be a sure thing. But it’s not. And so Congress needs to hear from you on this most critical issue.”

 

 

The full text of Udall’s remarks as prepared for delivery is below:

Thank you for the kind introduction President Keel, and for inviting me here today.  I appreciate the tremendous work that you, the Executive Committee, Jackie, and the NCAI staff do on behalf of tribes all across our nation. 

 

It is a great honor for me to serve as vice chair of the Senate Committee on Indian Affairs. I’ve told you before that three core principles guide my committee work: respecting tribal sovereignty, promoting tribal self-determination, and ensuring that meaningful government-to-government consultation happens when federal action affects Indian Country. I will continue to work to stay true to these principles.

 

The committee has a tradition of working on a bipartisan basis – recognizing that tribal issues are not red or blue. Chairman Hoeven and I have done our best to maintain this tradition since we assumed our leadership roles at the beginning of the 115th Congress in January last year. 

 

Since then, we’ve held 16 business meetings, 18 oversight hearings, and 9 legislative hearings. We’ve held 8 roundtable and listening sessions, and held field hearings in New Mexico, North Dakota and, just last month, in Alaska.  A number of you here have probably testified at or attended those committee events. 

We’ve had 63 bills referred to the committee; 28 of those have moved out of committee to the full Senate for a vote. And 16 have passed out of the Senate and are pending action in the House. 

 

I’m especially proud that two of my bills -- the Native American Business Incubators Program Act and the Esther Martinez Native Languages Preservation Act -- passed the full Senate.  We must now get them through the House.  And another – that expands leasing authority to the Pueblos of Santa Clara and Ohkay Owingeh -- was signed into law by the President. 

 

So, the committee’s schedule has been full trying to serve the interests of Indian County. I will continue to take action on issues that matter – that have real life consequences – to tribes and Indian County. 

 

As tribal leaders and advocates, you know how important it is to provide the funding necessary to ensure key programs like education, health, and housing serve Indian Country and meet the federal government’s trust responsibilities to Native Americans.  As Ranking Member on the Subcommittee on Interior Appropriations, with jurisdiction over BIA and IHS budgets, I strive to achieve those goals. 

 

For fiscal year 2019, I worked across the aisle with my colleague Senator Murkowski to secure increases for vital programs in Indian Country in the Senate bill, providing $5.8 billion dollars for IHS -- $234 million more than last year and $348 million more than the president’s budget request.  We also secured $3.1 billion dollars for programs provided through the BIA and BIE – an increase of $13 million more than the fiscal year 2018 level. 

 

Now, as a conferee with the House Interior appropriators, I will work as hard as I can to make sure we don’t lose this hard-won ground moving forward. I’m hopeful we will unveil a final bill this week that will provide a real budget for Indian Country by October 1st for the first time in more than a decade.

 

And as we move forward, I will continue to work to ensure that the federal government more fully meets its promises and obligations to Native Americans – so that people across Indian Country have the infrastructure, resources, and opportunities they deserve.  Like -- safe, well-built, and well run schools; access to quality and affordable health care; and good job opportunities.

 

Our committee has many pieces of legislation within its jurisdiction, but one piece of legislation I’d like to highlight is the Violence Against Women Act.

 

As you all know, VAWA was amended in 2013 to give tribes jurisdiction to prosecute domestic violence committed against Native women on reservation by non-Native perpetrators.  We were seeing too many women hurt, abused – and the perpetrators were getting away with it.  The amendment was hard-fought.  But we prevailed.  

 

NCAI released an instructive five year report on VAWA’s successes and challenges in March. At that time, 18 tribes were exercising jurisdiction over domestic violence crimes, and they were collaborating with 50 other tribes to develop best practices. There had been 143 arrests of 128 non-Indian abusers – with 74 convictions to date. 

We’ve made important progress prosecuting abusers, helping victims, and protecting women against violence and abuse. But we know there are loopholes. 

 

It’s important for Congress to hear from folks on the ground implementing the laws we pass.  Last December, I introduced a bill based on feedback from the 5 original VAWA pilot tribes. That bill, S. 2233, is called the Native Youth and Tribal Officer Protection Act.  It addresses three critical but unanticipated gaps in the 2013 legislation.

 

First, attempted domestic violence wasn’t included as a crime.  Second, family violence committed against Native children was not part of the legislation.  And, third, crimes committed against police officers enforcing VAWA need to be included.  The Native Youth and Tribal Office of Protection Act would remedy these gaps.

 

But -- VAWA is up for reauthorization.  Its authorization ends September 30th.  My party supports reauthorization and we are working toward that.  VAWA has been the subject of partisan battles in the past, especially in the House of Representatives.  And this go-around is likely going to be no different.

 

Domestic violence against women and children ruins lives, leaves scars, results in pain and death. Women and children should not live in fear.  Reauthorization of VAWA should be a sure thing. But it’s not. And so Congress needs to hear from you on this most critical issue.

 

Congress needs to hear from – and consult with – Indian Country on every issue that promises to have major ramifications for Native communities.  And currently, the Senate is considering one of the most consequential matters imaginable for the daily lives of Native Americans:  a lifetime Supreme Court nomination.

 

Many of you are probably wondering how the nomination of Judge Brett Kavanaugh will impact Native peoples and Indian Country. I want to know, too. 

 

I wrote to the Judiciary Committee Chair a month ago and requested all Judge Kavanaugh’s documents related to Native Americans, Native Hawaiians, and Alaska Natives. 

 

As you all know, the most important Indian law cases end up in the Supreme Court. In the current term alone, the Court decided three Indian law cases – more than any over the past decade. 

And it is slated to consider four more next term -- on reservation boundaries, tax, and subsistence treaty rights. The lineup of the Court is the most consequential in recent history. And the next justice has the potential to shape Indian law for decades to come. 

 

We absolutely have a right to have access to Judge Kavanaugh’s writings on these issues so we can fully vet his nomination. But, the Chair denied my request. 

 

That’s par for the course for this nomination. Where a only a small fraction of his documents, writings, emails, and memos have been made available to the Senators who will vote on his nomination.

 

The information we do have on Judge Kavanaugh’s views on Native issues, however, is disturbing. 

 

For example, while in private practice, Mr. Kavanaugh helped author, along with former Supreme Court Justice nominee Robert Bork, an amicus brief representing the Center for Equal Opportunity in the Rice v. Cayetano case.  The Center for Equal Opportunity is a fervently anti-affirmative action group.

 

At issue in Rice was the voting structure of the Office of Hawaiian Affairs -- a State agency specially charged with working for the betterment of Native Hawaiians -- that limited elections to Native Hawaiian voters.  Judge Kavanaugh argued that Native Hawaiians are not a constitutionally protected class akin to American Indians and that the Office’s voting structure violated Equal Protection.  While the Court ultimately struck down the voting system, it specifically declined to address his argument that Native Hawaiians are not a constitutionally protected class.

 

While the case was pending before the Court, Judge Kavanaugh wrote an extremely offensive op-ed in the Wall Street Journal – glibly questioning federal protections for Native Hawaiians and our nation’s commitment to our indigenous peoples, saying “Any racial group with creative reasoning can qualify as an Indian tribe.”  Such an offensive and inaccurate view demonstrates a level of misunderstanding -- perhaps even willful ignorance -- that no nominee to the highest court in the land should have.

 

What’s more, recently disclosed emails that Judge Kavanaugh wrote as a lawyer for President George W. Bush confirm that he is a dangerous nominee for all indigenous communities in our country. 

 

I believe that, if he is placed on the Supreme Court, the constitutionality of federal programs that benefit all Native peoples is at risk.

 

Native Hawaiians are not the only indigenous people who are threatened by this nomination. In Judge Kavanaugh’s eyes, an indigenous community must have its own government, its own system of laws, its own elected leaders, and live together on a reservation. In other words, there’s only one structure of government that  “real” tribes can exercise. 

 

But, of course, not all tribes are alike.  Not all tribal government operate the same way.  Including Alaska Natives -- who are organized as tribes, villages, and regional corporations. Understandably, Alaska Natives are concerned, especially because their subsistence way of life is under attack in a case now before the Supreme Court – Sturgeon v. Frost – to be argued November 5th.  In that case, the State of Alaska claims that rivers and other waters on federal lands are subject to state -- not federal -- control.  If the State has control -- Native Alaskans who rely on subsistence fishing are in jeopardy.  

 

But Judge Kavanaugh has shown a distinct hostility to federal rights -- favoring states’ rights over protected federal rights.  And rightly so, Alaska Natives are worried what his confirmation would mean for their way of life.

 

Whether it’s Judge Kavanaugh’s hostility to indigenous peoples – or to voting rights or measures to address climate change – his record does not bode well for the welfare of Native peoples.  Or the American public. 

 

This nomination is too consequential.  There is too much at stake.  I cannot and will not support this nomination.

 

We are at an historic point in our nation.  There are those who seek to divide.  And those who seek to unite.  I know all you here today join with me in seeking to unite.

 

At this pivotal moment – for Indian Country, and for the nation as a whole -- your voices matter more now than ever.  Your work over the years and decades has made a difference.  Please continue to make your views and opinions known, and your voices heard loud and clear.

 

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