On a brutally cold January 20, 2009, I watched the inauguration of President Barack Obama with other Native American guests at the National Museum of the American Indian in Washington, D.C. Just a few hundred yards away, history was being made with the swearing-in of our first African-American president.
Hopes and expectations were high for the new leader of the free world, and a little humor was welcome as Rev. Joseph Lowery, former president of the Southern Christian Leadership Conference, pronounced the following benediction:
Lord, in the memory of all the saints who from their labors rest, and in the joy of a new beginning, we ask you to help us work for that day when black will not be asked to get back, when brown can stick around—(laughter)—when yellow will be mellow—(laughter)—when the red man can get ahead, man—(laughter)—and when white will embrace what is right.
Let all those who do justice and love mercy say Amen.
Audience: Amen!
The challenge was clear from the beginning that Native Americans and native nation leaders wanted progress, and the fulfillment of a government-to-government relationship that was seriously deficient during the Bush administration.
Those deficiencies included the decades-long recalcitrance of the federal government in attempting to settle the Cobell breach-of-trust case, the clear lack of engagement on native issues by President W. Bush, an informal moratorium on land-into-trust applications, and an off-reservation gaming policy issued by the Department of the Interior without any tribal consultation.
While Indian gaming continued to grow by several billion dollars during the Bush administration, and dozens of new tribal gaming establishments opened, several episodes fostered distrust between native nations and their trustees, including gaming scandals associated with lobbyist Jack Abramoff and Interior Deputy Secretary Steven Griles, both of whom were convicted for illegal activities involving Indian tribes.
Good Start
Is the Obama era began, his record as president with respect to Indian Country would be centered on four agencies: the Department of the Interior, the National Indian Gaming Commission, Health and Human Services and the Department of Justice. While many other federal agencies (Environmental Protection Agency, Internal Revenue Service) are critical to the special relationship with Indian Country, the focus on the above four major agencies indelibly shapes the image of each new administration for good or bad.
Obama made a number of detailed campaign promises to American Indian and Alaska Native voters that he sought to fulfill as his term began.
One was to conduct an annual meeting with tribal leaders similar to what President Clinton had done on occasion while in office, but on a more formalized basis. In practice, these meetings, which some derided as a mere photo op, became the means for the most direct interaction by Native Americans with the president and his cabinet in over a decade.
Many cabinet secretaries also utilized this opportunity to announce major policy initiatives. Obama also required each federal agency to develop a policy on consultation with native nations, which led to an overall effort by the federal government to strengthen its communications with Indian Country. At the end of the president’s first term, he also established an internal working group on native issues similar to what was known in the Clinton administration as the Domestic Policy Working Group.
After taking office, the slow process of establishing a permanent Native American affairs team began. An initial frustration with the new administration began to settle in as key positions in the Interior Department and elsewhere remained unfilled even after Interior Secretary Ken Salazar was confirmed. This led the permanent staff at the Department of the Interior and other agencies to place on hold many key decisions until new appointees arrived, which in turn led to increased frustration from tribes on the lack of activity.
Deputy Secretary of the Interior David Hayes was one of the first confirmed nominees with experience in native issues (which, as we will discuss, proved to be a mixed blessing for native nations). During the first summer of the administration in 2009, almost all of the key native positions were filled.
Most notable were the key positions of Assistant Secretary for Indian Affairs Larry Echo Hawk, Interior Solicitor Hillary Tompkins, Indian Health Service Director Yvette Robideaux and White House appointee Kim Tee Hee. These experienced appointees were to guide most administration decision-making on native issues throughout the first years of the administration, and were generally to the benefit of Indian Country.
Behind Closed Doors
However, at the Interior Department, the assistant secretary (and his cadre of young, bright deputies) experienced what has over the years become routine and frustrating for the Indian office. True decision-making is often made behind closed doors between the secretary, his top staff and the assistant secretary. I encountered this firsthand when my client, the Gun Lake Tribe, sought a routine reservation proclamation for its gaming establishment.
The proclamation was necessary to actually commence gaming on Gun Lake’s newly acquired trust property pursuant to one of the exceptions for trust lands acquired after 1988. While the assistant secretary was prepared to sign the proclamation days after his confirmation in June 2009, it took another two and a half months of intense tribal lobbying for the proclamation to be issued.
Reportedly, the deputy secretary opposed this action. Fortunately, then-Michigan Governor Jennifer Granholm was also an enthusiastic supporter of the tribe.
This early battle signaled what was to become a stalemate on many issues between the secretary’s office and the assistant secretary with respect to gaming issues. Over the next two years, the department was at a virtual standstill on Federal Register publications for new gaming acquisitions, National Environmental Policy Act (NEPA) Record of Decision(s) (ROD) for gaming projects, and even routine publications of NEPA Notices of Availability of Draft Environmental Impact Statements for gaming projects.
This standstill reflected conflicting agendas within the department and unjustified sensitivity in the secretary’s office to the anti-gaming views of California Senator Dianne Feinstein. Feinstein not only opposed the growth of Indian casinos in urban areas, but routinely disparaged all casino gaming, Indian and non-Indian.
Delayed But Energized
This stalemate festered, and by June 2011, tribal leaders, the National Congress of American Indians and tribal advocates were at a boiling point over Interior’s bureaucratic delays on gaming projects.
By then, hundreds of millions of dollars of even non-controversial gaming projects had been delayed. Finally in June 2011, Assistant Secretary Echo Hawk announced the end of the Bush administration’s notorious 2008 off-reservation gaming memorandum and its “commutablity standard”—basically requiring that Indian casinos be located within a worker’s driving distance. (This standard led to some gallows humor by some wags who wondered if the standard was akin to commuting in Montana or Washington, D.C.)
Echo Hawk’s
announcement rescinding the Bush memorandum allowed the NEPA process to go forward for dozens of projects and ultimately resulted in a number of decisions on off-reservation gaming projects. Whether tribal leaders supported or opposed off-reservation gaming, it only seemed fair that the NEPA processes necessary for decision-making to go forward.
For the remainder of the Echo Hawk tenure, which went to the end of the first Obama term, long-delayed decisions finally began to be implemented. This pace was increased after Echo Hawk’s replacement Kevin Washburn was confirmed.
In hindsight, the first two years of the Obama administration were probably the lowest point with respect to the promotion of Indian gaming. Along with the interminable delays in the processing of fee-to-trust applications for gaming projects and the lack of Federal Register notices under NEPA, the administration had to deal with the challenges wrought by the 2009 United States Supreme Court decision in Carcieri v. Salazar.
In Carcieri, the court ruled that Indian tribes had to be “under federal jurisdiction” in 1934 for the secretary of interior to have authority to take land in trust for them under the 1934 Indian Reorganization Act. This led to widespread confusion over which native nations met this standard, and paralysis at the Department of the Interior Solicitor’s Office on how to process certain fee-to-trust applications.
The U.S. Congress was quick to react to the decision by calling several hearings on a “legislative fix,” but the White House never sought to make the fix a legislative priority by bargaining for its inclusion in must-pass legislation.
More damaging to the administration was the revelation in 2010 that the Interior Department through Deputy Secretary Hayes had been engaged in a secret legislative drafting process with Feinstein to develop a “Carcieri fix” that also included damaging amendments to the Indian Gaming Regulatory Act.
NCAI and the National Indian Gaming Association had long sought to keep IGRA free of damaging amendments during the Carcieri process, and the department suffered a black eye when, without consultation, they attempted to facilitate an unacceptable compromise.
Carcieri and Cobell Concerns
As the temperature in Indian Country rose in 2009, 2010 and 2011 concerning the lack of advocacy on Carcieri and the processing of gaming projects, the logjam was finally broken by Echo Hawk’s announcement in June 2011 affirmatively allowing the processing of gaming applications, including those for off-reservation projects. This was seen as a positive development, particularly when coupled with the earlier landmark Solicitor’s Office decision on December 14, 2010 regarding the Cowlitz Indian Tribe.
In that decision, the Solicitor’s Office finally memorialized its guidance on how to construe the Carcieri case and what tests it would utilize to determine whether a tribe was “under federal jurisdiction” in 1934.
The opinion was reasonable, detailed and flexible on how tribes could meet the jurisdiction test. Even so, if the Obama administration’s legacy on Indian gaming was limited to its early years, the record would have been one of distrust, delay and obfuscation. Fortu-nately, the first two years have not been indicative of the years 2011-2015 when the Interior Department issued dozens of game decisions, restored land decisions and off-reservation “two-part” decisions. While many delays still exist due to staffing, it is not the result of a top-down lockdown on progress.
For many in Indian Country, the failures in the Indian gaming arena were greatly overshadowed by the phenomenal success of the department and its leadership team of Solicitor Hillary Tompkins, Deputy Secretary Hayes and Department of Justice attorney Tom Perrelli in negotiating a $3.4 billion settlement of the Cobell case on December 8, 2009.
This was later enacted by Congress in the Claims Resolution Act of 2010. The Cobell settlement ended years of vitriolic relations between the plaintiffs, and in particular their attorneys, with the Interior Department defendants and its attorneys. The case, which was ultimately found to be justified legally and morally, had often poisoned relations between the department and its Indian trust beneficiaries.
The Cobell settlement will likely be seen as the signature achievement for Indian Country during the Obama administration. This settlement also paved the way for the settlement of numerous individual tribal claims against the United States for trust account violations, sometimes totaling in the millions of dollars.
The administration built on this success on December 27, 2011 when the Department of Agriculture settled the Keepseagle v. Vilsack class-action lawsuit. This $760 million settlement ended a lawsuit over whether the USDA discriminated against Native Americans by denying them equal access to credit in the USDA Farm Loan Program.
In addition, the Interior Department and the Department of Justice settled a number of long-standing Indian water claims against the United States in Arizona, New Mexico, Idaho and Montana.
The Department of Health and Human Services enjoyed significant funding increases during the Obama administration, but unfortunately its funding requests were typically below what the Interior Appropriations Committee and the Congress appropriated. Fortunately, the Indian Health Service (IHS) had strong bipartisan advocates on the key funding committees, including congressional members Tom Cole, Betty McCollum, Jim Moran and Ken Calvert.
The major division between IHS and Indian Country was the budget for contract support costs, which were routinely underfunded even after tribes won a significant U.S. Supreme Court decision in Salazar v. Ramah Navajo Chapter (2012). The contract support issue threatens to become as divisive as the Cobell case if a solution is not found to this annual problem soon.
Obama Victories
The Obama administration’s legislative record has seen impressive legislative victories in measures like the Violence Against Women Act (VAWA) (extending certain tribal jurisdiction to non-Indians), the Stafford Act (granting tribes certain disaster relief authorities), the Hearth Act (improvement to leasing on Indian lands), the General Welfare Act (favorable tax provisions) and the renewal of the Indian Health Care Improvement Act.
One notable failure has been the lack of an aforementioned Carcieri fix. While Indian Country publicly appears unified on a “clean fix” with no damaging amendments, the practice has seen the opposite.
Some tribal leaders and their Washington, D.C. lobbyists frequently undermine efforts to achieve a clean fix by offering suggestions of unacceptable compromises. Most notably, Indian Country representatives effectively torpedoed a clean fix at the end of the 112th Congress when Senate Committee on Indian Affairs Chairman Daniel Akaka received a floor vote for his legislation.
As senior staff to the committee later noted, a number of Republican senators were prepared to vote for the legislation along with most Democrats, but the fear by some advocates that amendments could be added (and others who thought a losing vote would permanently damage the effort) ended up, along with the NCAI and others, lobbying to pull the bill.
Regr
ettably, this cratering of support caused the bill to be withdrawn, and it has yet to see a floor vote since. The White House was notably silent during that end-of-year process, and that silence was also noted on Capitol Hill. Even so, it is but one negative on a fine record.
The Obama administration began with a plea for the “red man to get ahead, man,” and an objective analysis will show significant gains for Indian Country in terms of funding, land acquisition, settlements, increased jurisdiction and tribal self-determination. After a rocky start, the administration has found sure footing from the president on down to his appointees like Washburn, Deputy Assistant Secretary Larry Roberts and NIGC Chairman Jonodev Chaudhuri.
If solid achievements can continue, President Obama may earn and deserve this moniker from Indian Country—best president ever.
