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Federal Action

A Conversation with Interior Assistant Secretary Kevin Washburn

Federal Action

Kevin Washburn is quick to respond when asked what he believes to be the U.S. Department of the Interior’s most significant American Indian success story under the Obama administration.

“Certainly getting land into trust has got to be one of the biggest accomplishments,” says the Oklahoma Chickasaw, who was appointed in 2012 as Interior’s assistant secretary for Indian affairs.

Breaking a logjam of fee-to-trust applications stockpiled during the Bush administration has, indeed, been a major accomplishment of President Obama’s Interior and Bureau of Indian Affairs (BIA).

The agencies have processed some 1,700 requests since Obama took office, placing 250,000 acres of Indian land in federal trust for housing, health care, education, economic development, community infrastructure and other governmental services.

The Bush administration had acted on only 17 applications and placed a virtual moratorium on trust lands for gambling.

Restoring ancestral lands is one of a litany of Native American achievements under the tribal-friendly Obama administration.


Executive Accomplishments

Obama’s White House has increased the BIA budget, settled Cobell trust litigation and a number of water rights cases, enacted the Tribal Law and Order Act, permanently authorized the Indian Health Care Improvement Act (IHCIA) and reformed reservation business leasing policies.

And for the first time in 40-plus years, Washburn is promulgating new regulations to what Indian advocates regard as a “broken” federal process for recognizing tribes as governments.

“The history of the United States and tribal nations is filled with broken promises,” Obama said in an Indian Country Today editorial. “But I believe that during my administration we’ve turned a corner together.

“We’re writing a new chapter in our history—one in which agreements are upheld, tribal sovereignty is respected, and every American Indian and Alaskan native who works hard has the chance to get ahead.”

Reclaiming Indian territory has been particularly gratifying, Washburn says, because ancestral lands go to the very heart of tribal identity, sovereignty and self-determination.

“It’s all about restoring homelands to tribes,” he says—millions of acres lost due to generations of failed federal Indian policies that decimated indigenous communities and tribal governments.

Gaming’s Shadow

The restoration has not been easy because, in Washburn’s words, modern-day federal Indian policy “has been hijacked” by tribal government gambling.

“Gaming casts an out-sized shadow on everything we do,” says Washburn, tenured dean of the University Of New Mexico School of Law.

“One of President Obama’s highest priorities is restoring tribal homelands, and we have approved nearly 1,700 applications for land into trust in the last five and a half years. Only a small handful of those—in the neighborhood of a dozen—have explicitly been for gaming.

“But gaming seems to be a big part of the discussion.”

Recent U.S. Supreme Court and federal court decisions stemming from casino-related litigation—particularly Carcieri v. Salazar, Salazar v. Patchak and Big Lagoon Rancheria v. California—have seriously impacted Interior’s ability to place Indian land in trust.

But efforts at getting congressional remedies to the land/trust court decisions have been stymied by legislators opposed to Indian casinos, particularly Senators Dianne Feinstein of California, Jack Reed and Sheldon Whitehouse of Rhode Island, Charles Schumer of New York and Dick Durbin of Illinois.

The political and public pushback against a $28 billion Indian gambling industry with some 425 casinos in 28 states has created havoc with a number of tribal issues, including taxation and health care.

In fact, virtually all Indian matters on Capitol Hill are today viewed through the neon prism of tribal casinos, which generate nearly 30 times the BIA’s $3 billion budget.

“There is a definite backlash in Congress and on the local level,” tribal lobbyist and Oklahoma Cherokee Jana McKeag told attendees at last year’s Global Gaming Expo.

During a decade-long push to get congressional authorization of the IHCIA—an effort achieved with passage in 2010 of the Affordable Care Act—Paiute-Shoshone Rachel Joseph was confronted by legislators asking why Indians couldn’t fund health care with casino money.

“You hear the remark, ‘Hey, there are all these tribes making all this money… they can pay for it themselves,’” Joseph said in 2007. “You definitely have congressional representatives using that argument in opposition to Native American health-care programs.”

Indigenous groups working through BIA’s Office of Federal Acknowledgement (OFA) have long regarded the process as being unfair, with millions of dollars in legal fees and research and decades of bureaucratic delays often leading to unjust determinations.

Yet Washburn’s efforts to streamline the process have, predictably, been rebuffed by politicians and anti-gambling groups fearing additional casinos.

“We have recognized only 17 groups as tribes through this process since 1978,” Washburn says, while Congress has recognized roughly twice that number since 1934, when the Indian Reorganization Act ended a period of federal termination of Indian tribes.

“But the first question anyone asks seems to be, ‘Does this mean that we are going to have gaming in our backyard?’

“It’s not uncommon for it to take over a decade for a newly recognized tribe to develop a gaming opportunity, if it ever happens at all,” Washburn says.

Native Participation

Much tribal progress can be credited to Obama’s American Indian appointees, which include Navajo Hilary Tompkins as Interior solicitor. Tompkins has worked with Washburn and deputy assistant secretary Larry Roberts, a Wisconsin Oneida, in developing an administrative system to work within the legal constraints of the Carcieri decision.

Navajo Charles Galbraith was named associate director of the White House Office of Intergovernmental Affairs and Cherokee Kimberly Teehee was made senior adviser on domestic policy. Teehee was succeeded by Jodi Gillette, a citizen of the Standing Rock Sioux Tribe.

Those and other appointments mean Indian issues are no longer the sole province of the BIA.

“There was a day when the assistant secretary led Washington on all Indian policy, across the government,” Washburn says. “Now we have people in the White House, and it really, really makes a difference.”

Many Interior reforms began with Secretary Ken Salazar and Washburn’s predecessor, Pawnee John Echo Hawk, who resigned in 2012 to become general authority of the Church of Jesus Christ of Latter-day Saints.

But Washburn, a scholar in Indian law, tribal government gambling and law enforcement, is generating a great deal of kudos from Indian Country.

“I think he has been a fairly courageous assistant secretary, particularly considering the administrative restraints he operates in,” says Lumbee Arlinda Locklear, a pioneer attorney in Indian law.

“The assistant secretary, with his knowledge and his background, is certainly better equipped to handle the job than many of his predecessors,” says another tribal attorney who requested anonymity.

The myriad needs of the nation’s indigenous peoples—be it health care, housing, education, law enforcement or government contracts—pose quite a challenge for a poorly funded, heavily bureaucratic Interior and BIA.

“It’s a thankless, crappy job,” a tribal attorney says. “You don’t have the resources. You don’t have the manpower. And everybody’s mad at you all the time.”

“I give Washburn’s administration good marks,” says tribal attorney Michael McBride. “I think they’re doing the best they can under the circumstances.”

Carcieri And The Land/Trust Quandry

No federal law was more devastating to American Indians than the Dawes General Allotment Act of 1887, which distributed reservation land to individual tribesmen with the misguided intent of making them farmers. Non-allotted land was sold to non-Indians, robbing tribes of two-thirds of the 138 million acres held in federal trust when the act was passed.

The federal effort to terminate tribes ended with the Indian Reorganization Act of 1934, which empowered indigenous governments and returned some 2 million acres to tribal control.

But a modern era of anti-Indian sentiment on the once-tribal-friendly U.S. Supreme Court began with chief justices William Rehnquist (1986-2005) and successor John Roberts. Court opinions have gradually eroded the legal doctrine of tribal sovereignty.

“A majority of the Supreme Court, given their opinions, is conducting their own tribal termination project,” Blackfeet lobbyist Tom Rodgers says.

Political partisanship has rendered Congress powerless, says Matthew Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians and director of the Indigenous Law & Policy Center at Michigan State University, leaving Indian policy to the courts.

Particularly disturbing to Indian advocates was the high court’s 2009 decision in Carcieri v. Salazar in which justices ruled that Interior could not place land in trust for tribes not “under federal jurisdiction” in 1934.

The 6-3 opinion was a victory for then-Rhode Island Governor Donald Carcieri, who feared the Narragansett tribe was attempting to place 31 acres into trust for a casino. The tribe said the land was intended for housing. That ruling was followed in 2012 by Salazar v. Patchak, which extended for several years the period a lawsuit could be filed over a land/trust decision. That case was fueled by a Michigan man’s opposition to a Potawatomi Indian casino.

Washburn and solicitor Tompkins developed an administrative strategy—internally referred to as the “M opinion”—for dealing with land/trust applications in the wake of Carcieri. It requires a tribe to prove it was “under federal jurisdiction” with passage of IRA in 1934.

The criterion can include enrollment in tribal boarding schools or being a signatory to federal contracts.

While Interior’s Washington office reviews all gambling fee-to-trust applications, non-gambling land/trust decisions are made by the agency’s regional offices.

“We must follow Carcieri as long as it is the law, but we certainly aren’t going to interpret it any more broadly than we need to,” Washburn says. “We disagreed with it when it was being litigated and we don’t think it’s a very good interpretation of what the law ought to be.

“The good news is once we decide a tribe does not have a Carcieri problem, future acquisitions by that tribe are probably OK as well.”

The bad news is the 50-plus tribes recognized since 1934 by Interior’s OFA or through an act of Congress remain vulnerable to the Carcieri ruling. Some don’t pass the “M opinion” test, creating what tribal advocates decry as a two-class system of tribes.

“A world in which only some tribes are allowed to have land in trust is unfair,” Washburn says. “We feel urgency because we are troubled by the existing inequities.”

“All I can say is there cannot be two classes of citizenry in Indian Country,” says New York Oneida Brian Patterson, president of the United South and Eastern Tribes (USET), which has been leading the lobby effort for a congressional “fix” to the Carcieri ruling.

Washburn has also implemented a “Patchak patch,” doing away with a 30-day waiting period on Interior land decisions, speeding up the process to discourage litigation.

“The Patchak ruling, by exposing land-into-trust decisions to litigation after the acquisition, undermines economic development in Indian Country,” Washburn says.

No Remedy In Sight

With strong opposition from Senate leaders, there appears to be no easy solution to the land/trust issue. The politics of a congressional solution to Carcieri and Patchak are complicated by the fact some tribes are also disturbed at the spread of tribal gambling.

While tribes are philosophically united on the need for a legislative “fix” to the high court rulings, some Indian leaders believe political realities require that a remedy be linked to Indian Gaming Regulatory Act provisions dealing with casinos on newly acquired lands.

The Aboriginal Lands Coalition—a loosely organized group of tribes that include the San Manuel and Pechanga Indian bands in California, Forest County Potawatomi in Wisconsin and Gila and Salt River Pima-Maricopa Indians of Arizona, among others—claim federal law and Interior regulations are being used and abused by indigenous communities and big-moneyed developers who, in some cases, are encroaching on the ancestral lands of other tribes.

The lack of unity in Indian Country hinders efforts to get a Carcieri fix out of Capitol Hill.

“I know that there are a number of my colleagues who have an interest in this legislation and would like to see changes to this bill,” Montana Democratic Senator Jon Tester warned in introducing the latest legislative effort to “fix” the Carcieri ruling.

“Even Indian Country is divided on the issue.”

“Virtually every significant tribal organization has enacted a resolution urging Congress to fix Carcieri,” Washburn says. “No one agrees on everything in Indian Country, but the idea that there is a broad division is unfounded.”

Washburn does realize, however, that the politics of gambling make a “clean fix” problematic, at best.

“The difficult political compromises that might need to be made… I just don’t know,” he says. “I honestly don’t know.”

Current regulations require Interior to conduct a lengthy U.S. Environmental Protection Agency review (NEPA) of the impact casino development will have on local communities. The process takes years, often generating criticism of the agency from tribal applicants.

“Interior and the BIA is understaffed, so you’re forced to pick a few issues you can concentrate on and can make a difference and let other things slide,” one tribal lawyer says. “I think the agency may at times use (NEPA) as an excuse to delay.”

Washburn contends Congress needs to be educated that federal land/trust regulations include safeguards for local communities.

Although land/trust rulings for casinos off existing reservations are few, Interior has come under fire for approving casino applications on newly acquired lands for the North Fork and Enterprise rancherias in California and the Menominee Indian tribe in Wisconsin.

Specific Compacts

Meanwhile, Washburn has stood firm on tribal-state regulatory agreements, or compacts, which under IGRA are required for tribes to operate Las Vegas-style gambling on Indian lands, rejecting proposals that demand unreasonable shares of tribal casino revenues.

“Gaming compacts are to address gaming matters only,” he says. “Tribal hunting rights, fishing rights, water rights and other matters pertaining to the sovereign rights of tribes are generally not subject to negotiation in the gaming context.”

Washburn did, however, applaud a settlement the New York Oneida Nation reached with state and local officials that included agreement on a long-disputed land claim in exchange for a share of tribal revenues, contending it was not an amended compact subject to his review.

The assistant secretary has been characterized by some as being politically pragmatic. A “veto clause” in proposed federal acknowledgement reforms is regarded as a bow to Connecticut opposition.

Political leaders in that state are opposed to allowing three tribes denied recognition to re-petition Interior under the new rules and eventually develop casinos.

Washburn says the draft regulations embrace a wide spectrum of views on the issue that are not yet finalized.

“We adopted something moderate, in the middle,” Washburn says of the draft. “Under some circumstances people can re-petition.

“I did not get political pressure from my boss (Interior Secretary Sally Jewell) or the White House.”

“It’s a good-faith effort,” attorney Judy Shapiro says. “But I don’t think the Connecticut clause is fair.”

“It does seem to be fundamentally unfair to deny those tribes a new opportunity just because the state has been opposed to them all along,” Locklear says.

 Diplomacy can be difficult in leading a poorly funded, understaffed agency.

Washburn’s scholarly expertise in gambling and law enforcement was expected to assist him in dealing with department matters. That has not necessarily been the case.

“It wasn’t as helpful as I hoped it would be,” he says. “The BIA is responsible for everything under the sun in Indian Country, everything but health care. Around here gaming is about 5 percent of what we do.

“On any given day people expect me to be an expert on everything from dams to law enforcement, to irrigation, to water rights, to roads, to education, to social services, to child welfare.

“To do this job right I need an MBA and Ph.D. in several subjects.”

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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.

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