Assistant Secretary Tara Sweeney joined the Department of the Interior a few weeks ago and inherited a tribal agenda that has sent shockwaves through tribal communities. In the first days of his administration, President Trump gave the green light to the Dakota Access Pipeline and the XL Pipeline; and, not long after, he dramatically reduced the size and protections of the sacred Bears Ears National Monument in Utah. If a budget reflects one’s priorities, the Trump Administration’s annual budget proposals do not bode well for they have sought to defund trust and treaty obligations by hundreds of millions of dollars.
President Trump has also ordered agencies to examine ways to reorganize to improve efficiency, effectiveness, and accountability. The Secretary of the Interior’s vision is to establish 12 unified regional office boundaries across all the Department’s Bureaus. Yet, Interior’s proposal to reorganize its agencies offers tribes a Hobson’s Choice: embrace a reorganization proposal -- the details of which consist of a PowerPoint and maps -- or keep the current structure only for BIA (the opt-out option).
A year ago the Department appeared to be advancing reform, with strong support from tribes, of the Indian Trader Regulations to promote tribal economic development. But those efforts by Interior appear to have stalled. Nor does there appear to be forward movement in implementing the Indian Trust Asset Reform Act. Instead, Interior has put the brakes on the restoration of tribal homelands and is headed on a path to terminate the restoration of tribal homelands in Alaska – notwithstanding a federal court ruling that Interior violates federal law if Interior’s land into trust regulations forbid Alaska tribes from placing land into trust.
Indian Country has hope for Assistant Secretary Sweeney, and wishes her the best as she navigates these flashing lights while trying to set in place a proactive agenda that tribes across the United States can embrace.
Let’s begin with the restoration of tribal homelands. In April of this year, an Interior official testified before Congress that just under 16,000 acres had been accepted into trust during the 15 months of this Administration. This marks a significant slowdown of the pace of tribal land restoration under the previous Administration, which averaged more than 60,000 acres of land restoration to tribal trust ownership each year. What changed? It certainly wasn’t the career employees of the Bureau of Indian Affairs, who remain in place notwithstanding changing administrations. The legal and administrative mechanisms to accept land into trust did not change. Tribes did not stop making the restoration of homelands a priority. Restoring tribal homelands remains one of the highest tribal priorities, as reflected by the 1,300 pending trust applications as well as the fact that tribes have expressed universal opposition to this Administration’s proposed changes to the land into trust process.
The warning lights caused by the Administration’s approach to land into trust was amplified by the Administration’s decision in July to step back from restoring tribal homelands in Alaska – shortly before Assistant Secretary Sweeney, the first Alaska Native to hold the position, stepped into her job. This surprise reversal concerns all tribes because federal law forbids Interior from diminishing the privileges and immunities of tribes relative to other federally recognized tribes. Indeed, a federal court has already ruled that a regulation prohibiting land into trust in Alaska unlawfully discriminates against tribes in Alaska. A decision to rollback restoring tribal homelands in Alaska signals Interior’s potential willingness to create disparities among tribes and diminish all tribes’ privileges and immunities.
Turning to Interior’s reorganization effort, which is being driven by President Trump’s Executive Order, Secretary Zinke’s proposal is to make regional boundaries for all agencies the same with each led by one unified Regional Director who will report directly to the Deputy Secretary on matters that implicate recreation, conservation and permitting. Tribes have expressed serious concern with this approach, in part because it’s not clear how the proposal improves the delivery of trust and treaty obligations to Tribes. Rather than elevating the tribal matters through the creation of an Under Secretary of Indian Affairs (as already authorized by Congress) or propose a Cabinet level Department of Indian Affairs, Tribes are told that the Secretary’s proposal will facilitate additional resources at the agency level and will return authority to the district and agency level for a more efficient delivery of services.
However, the Trump Administration’s stated objectives could be accomplished immediately without a reorganization. Transferring more authority to the regional and agency offices can be done with a simple delegation. For example, Assistant Secretary Sweeney could return authority to regional offices that this Administration pulled to DC to decide off-reservation land into trust applications. Similarly, providing additional resources and positions to regions doesn’t require a reorganization – it requires funding. Listening to tribes, Congress has thus far rejected Trump’s proposals to cut Indian Affairs’ budget. It’s unclear how the Department’s proposal increases positions and resources to improve the delivery of trust and treaty obligations.
Tribes have voiced concern regarding the lack of information and data to support the reorganization plan. The Trump Administration’s primary response to these concerns thus far is that tribes have a veto under which BIA can opt out of the reorganization. That opt-out offer, however, doesn’t address the impacts of the Department’s reorganization on tribes. In the twenty-first century, tribes work daily with the Bureau of Land Management, the Bureau of Reclamation, the Fish and Wildlife Service, the National Park Service and the U.S. Geological Survey. The services those agencies deliver to tribes are no less important than the services provided by BIA and BIE.
One tool to address some of the concerns expressed by tribes is for the reorganization to establish an Under Secretary for Indian Affairs as provided for in the Indian Trust Asset Reform Act (ITARA). Congress enacted ITARA in 2016 “to ensure a more efficient and streamlined administration of duties of the Secretary of the Interior.” Under the law, the Under Secretary for Indian Affairs reports directly to the Secretary and is statutorily directed “to the maximum extent practicable” to supervise and coordinate BIA activities and policies with Bureau of Land Management, Bureau of Reclamation, Fish and Wildlife Service, and National Park Service activities and policies. Reporting directly to the Secretary, this position could minimize potential negative impacts on tribes of the Departmental reorganization.
Assistant Secretary Sweeney pledged to spend her first 180 days consulting with tribal leaders to develop her priorities. Taking a pause on any changes to regulations and implementation of the reorganization would help to ensure that this consultation period is meaningful on issues of concern to tribes. Those consultations are vitally important for her to see and hear firsthand the real life challenges faced by tribal communities, and to learn about opportunities that could make a tangible difference for current and future generations. A decision to end any effort to amend the land into trust regulations would show she is listening to tribal leaders. Addressing the opioid epidemic, continuing to improve BIE schools, promoting tribal self-determination and economic development and ensuring safe communities are areas for which this Administration has expressed support and where concrete action with tribes will make a difference.
Every Assistant Secretary faces challenges within an Administration. It is easier to correct course on those policies and regulations squarely within the Assistant Secretary’s authority, such as restoring tribal homelands in the lower 48 States and Alaska. For broader Administration priorities, such as reorganization of the federal government, the Assistant Secretary has a responsibility to advocate within the government. Of course, if the lights continue to flash, tribes will have no choice but to resort to litigation to protect themselves. Over the past decades, cases such as Cobell, Ramah and Akiachak show that litigation, when necessary, can positively impact the legal and policy landscape and produce real benefits for tribes vis-à-vis the federal government.