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.
None of these cases are high-profile matters with impacts going much beyond the tribes, and so there is little here to allow anyone to predict how a Justice Kavanaugh would decide an Indian law matter. However, his record as a judge who is a reliable social conservative with a reputation suggesting he is hostile to abortion rights and LGBTQ rights, with ties to the Federalist Society, suggests he will be a difficult vote for tribal interests to pick up in any matter.
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
Additional Update: Are Hawaiians Indians? The Justice Department Thinks So [Wall Street Journal op ed]