Supreme Court ties us up in pipelines, and Ketanji Brown Jackson continues the trend
Pay attention to Jackson's past decision opposing pipeline-related environmental reviews and her slim Indian Country record.
WASHINGTON — For Indigenous Wire, this week was supposed to be largely about two important U.S. Supreme Court cases — one focused on gaming in Texas (stop us if you’ve heard that one before) and one about tribal justice jurisdiction issues. Then, we were going to offer up a nice interview with a strong Native woman who’s doing something that literally no one else has ever done before in the history of all time. It was going to be amazing.
Turns out, the road to hell really is paved with good intentions. Because we did none of that.
Instead the high court made us get all tangled up in pipelines, ironically, by choosing not to hear a case about pipelines at all. As a result, this place is starting to look like all pipelines, all the time. Pipeline-o-rama. It’s worse than Enbridge around here.
The Supreme Court is being so greedy, taking up our time like this. Vladimir Putin played a role, too, so don’t think we’re laying the blame all at the feet of John Roberts and crew.
Now, the Supreme Court wants even more coverage, given President Joe Biden’s selection of Ketanji Brown Jackson to fill Stephen Breyer’s soon-to-be-vacated seat on the bench. (Ron Klain just didn’t listen to us, and we’re starting to think he never will.)
Despite her qualifications, the Republican National Committee is already unhappy with the pick.
"Maybe the only promise Joe Biden has kept is his pledge to nominate a liberal, activist judge to the Supreme Court,” the RNC offered in a statement this morning. “Ketanji Brown Jackson is exactly that: a radical, left-wing activist who would rubberstamp Biden's disastrous agenda.”
Surprised that the RNC doesn’t like her? We’re not. This is a political game, for all involved.
Yet the RNC has said it wants to start building better bridges with all of America, so this attack on the first African-American female nominee to the high court does seem a bit counter intuitive. And her record just doesn’t play as overly activist, if you ask us.
If the selection were a Native American, would the RNC have had less of a problem? Some president should try to nominate an Indigenous person to the highest bench just to see. (Ron Klain, are you still here?)
The Democrats certainly did a job in hammering President Donald Trump’s selection of Neil Gorsuch to become an associate justice in 2017.
Indians are largely Democratic, so they were on the side of the Dems on that one, right? Nope. Gorsuch has proven himself to know Indian law and sovereignty better than most any justice ever has. Which is the big reason why recent Indian-centric cases, including McGirt, have gone well for Indian Country. Even if he did toy with upending Cabazon earlier this week in that Texas gaming case we mentioned, we have to believe he was making a larger rhetorical point. He fully knows the economic and self-determination benefits of Cabazon to tribes.
Beyond the GOP’s political bluster surrounding Jackson, Indian Country is wisely looking to her record on tribal law, with Indian scholars and Native lawyers already widely pontificating.
The early verdict: She’s an Indian Country lightweight.
Writes Matt Fletcher, esteemed Michigan State University legal scholar:
Judge Brown Jackson also wrote an opinion in a pro se prisoner FOIA request to the Bureau of Indian Affairs, Kovalevich v. BIA. Judge Brown Jackson also rejected a facial challenge in Rothe v. Dept. of Defense to Section 8(a) of the Small Business Act that benefits many tribes and tribal businesses. In Sierra Club v. Army Corps, she excused the government from having to prepare an Environmental Impact Statement to assess environmental impacts from the approval of a domestic pipeline, a case that recalls the Dakota Access decision, which reached the opposite conclusion.
Judge Brown Jackson clerked for Justice Breyer in the 1999 Term, when Rice v. Cayetano was decision (Breyer went the wrong way on that one).
Judge Brown Jackson also clerked for First Circuit Judge Selya from 1999 to 2000. Judge Selya wrote the opinion in Ninigret Development v. Narragansett Indian Wetuomuck Housing Authority, where the court rejected a tribal sovereign immunity defense from a contract dispute.
Did you catch that? Pipelines again.
“In Sierra Club v. Army Corps, she excused the government from having to prepare an Environmental Impact Statement to assess environmental impacts from the approval of a domestic pipeline, a case that recalls the Dakota Access decision, which reached the opposite conclusion,” we reiterate Fletcher’s words.
Indian scholars generally believe that an increasing number of pipeline and infrastructure-related cases related to Native lands, water and treaties will eventually wind their way to the high court, so Jackson’s decision there is significant.
Environmental reviews are one of the best ways tribes and Indian citizens have right now to keep problematic infrastructure development in check.
The federal government is currently not administratively stopping pipelines that negatively impact Indian lands, water and treaties, as Biden’s decision not to intervene on Line 3 last year proved.
And the White House is not shutting down DAPL, even though that pipeline has not had a permit to operate since it began pumping oil under Lake Oahe in 2017.
Will Indian Country oppose the first African-American female justice based on pipeline prospects? Highly doubtful.
What tribal leaders and advocates will do is ask that their friends on the Senate Judiciary Committee put Jackson on notice about the importance of environmental reviews. Ask her about treaty law and Indian legal canon while they’re at it, we’d suggest.
If confirmed, all will hope that Jackson will not rule against tribal interests, but that’s much less of a sure bet than it’s turned out to be with Gorsuch.
Who would of thunk that Trump would appoint a stronger American Indian legal advocate to the court than Biden?
Not Trump, we can assure you.
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