According to this Huffington Post article, some self-described advocates for Alaska Natives say they’re putting intense pressure on Alaska senator Lisa Murkowski to oppose Judge Kavanaugh’s nomination to the Supreme Court over concern on how he might rule on the case of Sturgeon v. Frost, to be argued in the Court on November 5.
The Sturgeon case presents a complicated statutory question over whether the National Park Service or the state of Alaska has authority to exercise regulatory control over certain lands located within the boundaries of the national park system in Alaska. The advocates express concern that the Court might rule in a way that devastates Alaska Natives’ subsistence fishing rights.
On the premise that this is not an issue that has been entirely ginned up by opponents of the Kavanaugh nomination, let me briefly identify several reasons why it should not affect Murkowski’s assessment of Kavanaugh:
1. In his brief, John Sturgeon specifically disclaims any interest in having the Court address the so-called Katie John subsistence decisions that the Alaska Natives value:
[T]he Ninth Circuit’s application of its Katie John subsistence decisions had at least some foothold in the statute. The Court need not overturn or otherwise address the issue of subsistence management regulation in Alaska in order to rule in favor of Mr. Sturgeon. Title VIII supports an array of subsistence management regulations that are beyond the scope of Mr. Sturgeon’s challenge. The focus of Mr. Sturgeon’s challenge is instead the Ninth Circuit’s decision to expand the reasoning of the Katie John cases beyond subsistence and, in so doing, grant NPS plenary control over State waterways. [P. 34 n. 4 (citations omitted).]
Sturgeon’s lawyer has likewise explained that Sturgeon supports protections for Alaska Natives’ subsistence use: Sturgeon “has been forceful in his belief that Alaska Natives should have the rural subsistence fishing preference enforced in the Katie John line of cases. As a result, he has argued throughout this case that the courts can let him hunt with the hovercraft without disturbing Native subsistence fishing rights.”
2. Three Alaska Native organizations supported Sturgeon when his case first reached the Court four years ago. By contrast, this local Alaska publication states that “one Alaska Native group has raised concerns” with Murkowski about the Sturgeon case. So at the very least it appears that the Alaska Native views of the implications of the case are divided.
3. Murkowski herself submitted an amicus brief in support of Sturgeon in the earlier Supreme Court case. Indeed, she celebrated the interim victory that the unanimous Court gave Sturgeon as “a significant win for Alaska’s sovereignty.” She expressed concern that a ruling against Sturgeon would have been used by the federal government “as a springboard for extensive federal regulation which would have harmed hunters and stymied development on state and Native Corporation lands.”
Murkowski praised Sturgeon as “a hero for taking his challenge all the way to the Supreme Court and winning this initial, and unanimous, victory over a tortured legal interpretation by the National Park Service,” and she called the decision
only the start of the next chapter in our fight to secure the rights promised to Alaskans. We must continue to rally behind John, and support his cause, until lower courts also recognize what the Supreme Court affirmed today: that Alaska is different, even exceptional, and that federal overreach is unacceptable.