Obama, the adopted Crow, was hero on federal Indian policy

In 2009, while keynoting the first of what would become a landmark series of annual White House conferences with American Indian leaders, President Barack Obama mentioned a campaign visit he made the previous year to the Crow Nation in Montana.

Crow leaders adopted the then-presidential candidate as an honorary member of the tribe, bestowing on him the name Barack Black Eagle.

“Only in America could the adopted son of Crow Indians grow up to be president of the United States,” Obama quipped at the inaugural White House Tribal Nations Conference.

Eight years later, the adopted Crow Indian is being heralded for creating one of the most progressive and inclusive administrations on federal Indian policy in U.S. history.

The annual conferences—coupled with improved tribal consultations and the appointment of Native Americans to key departments and cabinet-level positions—have empowered Indian governments largely ignored by prior administrations.

Trust Land for Tribes

The hallmark of the Democratic Obama administration is placing 542,000 acres of land in trust for tribal governments, breaking a logjam of applications created when previous Republican President George W. Bush imposed a virtual moratorium on new trust lands for tribes.

Tribal advocates claim Bush-era policies, particularly the land-trust moratorium, seriously limited the ability of largely deprived indigenous communities to strengthen their governments and grow their meager economies.

“Land repatriation is the key to strengthening our governments and advancing our governmental authority,” says Fawn Sharp, president of the Quinault Nation and vice president of the National Congress of American Indians (NCAI). “That singular, deliberate and very strategic decision by the Obama administration created a tsunami across Indian Country.

“It was huge. It was not only an incredible benefit to today’s tribal nations and citizens, but future generations. That’s a legacy achievement for tribal nations.”

Along with reclaiming tribal lands, the Obama administration increased the U.S. Department of the Interior’s Bureau of Indian Affairs (BIA) budget 25 percent, from $2.3 billion in fiscal 2013 to $2.8 billion in 2016. It hiked funding of the Indian Health Service by 50 percent and allocated $3 billion of Recovery Act funding for housing, infrastructure and economic development projects in Indian Country.

Obama promoted legislation to combat crime in indigenous communities, signing into law the Tribal Law and Order Act and reauthorizing funding of the Violence Against Women Act.

The administration amended tax laws and revised BIA land lease rules to encourage economic growth on tribal reservations. It began implementing provisions of the Indian Child Welfare Act and launched reorganization and reform of the Bureau of Indian Education with the goal of turning control of 183 BIA schools to native communities.

Meanwhile, Interior and BIA aggressively pursued Indian land and water rights settlements and approved often-controversial tribal casino projects, generating the ire of states’ rights advocates, local governments and, occasionally, other tribes.

Taken together, Obama programs, policies and legislation have enabled tribes to enhance and strengthen sovereignty and self-governance while growing and diversifying their economies.

“What I hear from tribal leaders is pretty much a consensus that Obama has been the best president Native American people have ever had,” says John Echohawk, a Pawnee and executive director of the Native American Rights Fund.

“There’s a long list of achievements,” Echohawk says. “I couldn’t begin to recite them all.”

“The best thing that’s happened to Indian Country has been President Obama being elected,” Standing Rock Sioux Chairman Dave Archambault told the Washington Post.

Reaching Out to Tribes

The White House conferences were “more than a photo op,” says a tribal lobbyist forbidden by clients from publicly discussing Indian politics.

“Restoring trust lands are an important part of the Obama legacy,” the lobbyist says. “That cannot be understated. That is huge.

“But the most important part of his legacy is that for the first time Indian issues were really taken seriously by the administration, at the highest level.”

Obama directed federal agencies to establish formal tribal consultation policies, expanding an executive order by former President Bill Clinton. Obama also created the White House Council on Native American Affairs to coordinate joint department action on Indian issues.

High-level Native American appointments outside traditional positions with Interior and BIA sent the message throughout the White House and Congress that Obama was intent on addressing indigenous issues.

Navajo Hilary Tompkins was named solicitor general for Interior and Kimberly Teehee, an Oklahoma Cherokee, was appointed senior policy advisor for Native affairs, a cabinet-level position. (Teehee was succeeded by Jodi Gillette, a Standing Rock Sioux, and later Karen Diver, a Lake Superior Chippewa.)

“Obama understood there were basic needs in Indian Country, from health care to education to economic development,” says Ron Allen, chairman of the Jamestown S’Kallam Tribe and treasurer of NCAI. “He said, ‘We’re going to make a difference.’ He wasn’t going to simply have a liaison on tribal government affairs in the White House. He had a Native American advocate on his domestic policy team. That was a big deal.”

“This administration has taken a major step in making sure tribal nations are no longer invisible,” Sharp says. “The acknowledgement and recognition of tribal nations by all governmental agencies is significant.”

“This administration reset the dialogue with Indian Country,” says Larry Roberts, a Wisconsin Oneida and Interior’s interim assistant secretary for Indian affairs. “It has not shirked its trust responsibility, but engaged tribal leaders to work collaboratively on the needs of Indian Country.”

Cobell, Land-Trust Were Priorities

Obama, on taking office, quickly pressed for settlement of the Elouise Cobell class-action lawsuit and related breach-of-trust litigation filed against Interior by roughly 100 tribes. The Cobell settlement cost the federal government $3.4 billion.

The 13-year legal war over mismanagement of tribal trust assets had strained the ability of Interior and BIA to serve some 563 federally recognized tribes and Alaska Native villages. There are roughly 2 million members of the 366 American Indian tribes, according to the latest Interior and U.S. Census figures, with about half living on trust lands.

“Getting Cobell settled was a high priority,” says Kevin Washburn, a member of the Oklahoma Chickasaw Nation who resigned in January as Interior’s assistant secretary for Indian affairs. “You can’t litigate against Indian Country and serve Indian Country at the same time.”

About $1.9 billion of the Cobell settlement funded the buy-back of fractionalized ownership of 2 million acres lost by tribal governments through the failed Dawes Act of 1887. The act, which attempted to allot communal tribal land to individual Indians, resulted in the loss of 90 million of 148 million acres of tribal land.

Obama appointees then trashed Interior policies held over from the Bush administration preventing tribes from acquiring trust lands needed to strengthen their governments and provide services to their citizens.

Indigenous leaders had demanded an end to the land-trust moratorium, a policy blamed on Bush administration fears of legal liability in taking on additional trust responsibilities as well as political opposition to tribal casinos on newly acquired lands.

“Tribes care about the land more than anything else, except, perhaps, their children,” Washburn says. “You can’t have a government without land.”

“Restoring tribal homelands is about housing,” Roberts says. “It’s about making sure tribal communities are secure for future generations.”

Interior Secretary Ken Salazar (replaced in Obama’s second term by Sally Jewell) and Assistant Secretary Larry Echo Hawk (Washburn’s predecessor) scuttled the land-trust moratorium and a “commutability” policy for newly acquired casino lands, often termed “off-reservation gaming.”

“After assessing the situation and looking at the law, they said we had to make these land-trust decisions. That’s our role as the Department of the Interior,” says attorney Bryan Newland, a citizen of the Bay Mills Indian Community and former Interior senior policy advisor.

“It was a moral issue. It has been federal policy dating back to the 1930s that we put land in trust for tribes, so they have a homeland. That premise served as the foundation for what followed—that we needed to work with tribes to ensure they have a homeland.”

The land/trust issue became further complicated weeks after Obama took office in 2009 when the Supreme Court in Carcieri v. Salazar ruled Interior could not place land in trust for tribes not “under federal jurisdiction” with passage of the Indian Reorganization Act (IRA) of 1934. The ruling stemmed from a lawsuit filed by Rhode Island Governor Ronald Carcieri, who feared land the Narragansett Indians said was purchased for housing would instead be used for a casino.

Carcieri posed a serious legal challenge to the 366 tribes in the lower 48 states, particularly the roughly 50 tribes recognized after 1934 that needed to prove they were in to some degree “under federal jurisdiction” with passage of IRA.

Dealing With Carcieri

Salazar and Echo Hawk were not deterred by the Bush policies or the Supreme Court ruling.

Interior directed that land-trust applications undergo a “Carcieri test” to determine whether tribes met the Supreme Court’s vague definition of having been “under federal jurisdiction” in 1934. It could have meant having children enrolled in Indian boarding schools.

Non-gambling applications were subject to review by the five Interior regional offices while the often-controversial casino land-trust applications underwent scrutiny by Interior’s solicitor and lawyers in D.C.

Despite the often-lengthy bureaucratic scrutiny and Carcieri-related litigation, the Obama administration since 2009 has managed to process 2,285 applications, placing 542,497 acres in trust for tribes, according to Interior figures.

Only 21 of the 2,285 applications were for casinos, according to Interior. There were 812 applications for agricultural lands, 606 for government offices and infrastructure, 396 for economic development and 328 for housing.

Despite the few more controversial gambling applications, the Obama administration failed to make good on a pledge to get a congressional remedy to the Carcieri decision. A Carcieri “fix” remains blocked by House and Senate opponents to tribal casinos as well as state and local government officials seeking greater input in the land-trust process.

“Carcieri continues to be a significant hurdle for Indian Country,” Roberts says, with significant money and recourses directed to the lawsuits and legal scrutiny surrounding the process, particularly for casino-related applications.

“Those resources could be going to social services,” Roberts says.

Some Tough Decisions

Interior has historically demurred taking action on controversial issues, particularly when confronted with lawsuits or potential litigation. That hasn’t been the case under Obama.

A 2011 Supreme Court decision in Patchak v. Salazar extended for several years the deadline for opponents to land-trust decisions to file lawsuits. Washburn responded by speeding up the process of placing land in trust.

 Obama’s Interior acted on controversial casino land-trust proposals and rejected or voiced concern with tribal-state casino agreements, or compacts, that appeared to violate rules and tax prohibitions in the Indian Gaming Regulatory Act (IGRA) of 1988.

It rejected and later approved a compact for the newly recognized Mashpee Wampanoag Tribe in Massachusetts. It approved an initial reservation casino for the Cowlitz Tribe of Washington against the wishes of local citizens and at least one nearby tribe.

Off-reservation casinos were approved for the Spokane Tribe of Washington and Menominee Tribe of Wisconsin, although the latter was rejected by Governor Scott Walker. Interior also supported controversial casino projects for the North Fork and Enterprise rancherias in California.

Washburn’s Patchak remedy allowed tribes rebuffed in efforts to secure tribal-state gambling compacts to instead stock their casinos with Class II bingo machines that did not require state regulations.

Washburn supported Tohono O’odham’s right to build a casino on Phoenix-area property obtained in a federal land claim, a project opposed by nearby tribes, state officials and members of Congress, particularly Senator John McCain of Arizona. The two squabbled at a Senate hearing.

Obama appointees to the National Indian Gaming Commission (NIGC), the federal regulatory oversight agency for roughly 480 tribal casinos, focused on consultations and training of tribal regulators, much to the chagrin of congressional critics seeking more enforcement actions.

“Obama’s legacy in Indian gaming was to treat it as a still-much-needed economic development tool for tribes,” says Kathryn Rand, dean of the University of North Dakota law school.

Interior established a land-trust regulatory process for Alaska villages and streamlined what Indian law scholars called a “broken” administrative process for acknowledging native groups as recognized tribes.

The new federal acknowledgment rules angered several tribes, some with casinos who feared increased competition and others afraid the revisions would dilute standards for federal recognition and diminish tribal identity.

When a federal court in October denied an injunction to temporarily halt construction of the controversial Dakota Access crude oil pipeline that threatened the water supply to the Standing Rock Sioux Reservation in South Dakota, Obama’s Interior Department, Army Corps of Engineers and Department of Justice stopped the project, the target of at times violent protests.

“Within minutes of that court decision being announced, the administration agreed to do just what the tribes were asking, to temporarily halt that project and conduct a review,” Newland says.

“We have work to resolve issues and not simply litigate,” Roberts says.

A Historical Perspective

The tribal government gambling industry—largely created with President Ronald Reagan’s enactment of IGRA—has been credited with generating social and economic progress on Indian lands.

But scholars point to a federal policy of tribal self-determination adopted in 1975 by then-President Richard Nixon as having a greater, more positive impact on indigenous communities.

“Tribal sovereignty and self-determination are the keys to progress in Indian Country,” Rand says. “Tribes know gaming alone is not the answer. It is a tool, an aspect of tribal progress.”

Tribal gambling is a $29.9 billion industry, according to the NIGC, but much of the revenue is generated by small-enrollment tribes near major population centers.

Gambling has enabled many of the 240 casino tribes to subsidize inadequately funded housing, health care and social-services programs. But it has not had a significant economic impact on many larger, remote reservation tribes in the Midwest, Southwest and Great Plains.

About $16 billion of $28 billion generated by tribal casinos in 2014 came from California, Oklahoma, Washington and Florida, according to economist Alan Meister, author of the annual Indian Gaming Industry Report.

Twenty-three percent of Indians continue to live below the poverty line, according to Interior and the U.S. Census, and only about 50 percent are employed. About 20 percent work for federal, state and tribal governments.

The Obama administration is credited with helping to enhance tribal self-determination by empowering Indian governments and courts and eliminating tax and regulatory barriers to creating businesses on and off the reservations.

“Under the Obama administration, it was made very clear from the very beginning that tribes are in the best position to govern indigenous people and native lands,” Sharp says. “The administration wanted tribes to formulate their vision and consult with the U.S. government.”

“Obama returned the country to a place of government-to-government respect and mutual relations with tribes,” Rand says.

“I don’t think his work in that area was groundbreaking,” Rand says of Obama, noting the historic swing of federal policy from paternalistic support to terminating tribes and, eventually, Indian self-determination. “But he returned the country to a place from which it had deviated.”

The Future Remains Uncertain

Obama’s commitment to Native America may have stemmed in part from tribal political support and more than $1 million in contributions to his 2012 re-election campaign. Individual contributions from tribal citizens expanded the total.

Obama did not endorse the Tribal Labor Sovereignty Act, legislation intended to give tribes parity with states in exemptions from the National Labor Relations Act, indicating an equal if not greater loyalty to organized labor.

“Between the unions and the Indians, the Democrats usually go with the unions,” says attorney Michael Anderson, a member of the Muscogee Creek Nation and former Interior deputy assistant secretary for Indian Affairs.

But Indian leaders say they are hopeful the next administration will mirror Obama’s cooperation and collaboration on indigenous issues.

Tribes fear the prospects of a Republican Donald Trump presidency, noting his anti-Indian rhetoric in congressional hearings on Indian gambling.

 

Author: Dave Palermo

Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law. He can be reached at dgpalermo1@gmail.com.