Author: bryannewland

The Second Time Around: Looking Ahead to President Obama’s Second Term

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Two weeks ago, we took a look back at some of the significant federal Indian policy developments during President Obama’s first term.  President Obama’s historic inauguration last week marked the beginning of his second term, which will bring a new set of challenges and opportunities for the Administration’s Indian policy agenda. 

The ongoing stalemate in Congress regarding the federal budget, a Republican House of Representatives, and the fact that the 2016 Presidential campaign will kick off immediately after the 2014 mid-term elections, will make it difficult to push significant Indian policy reforms through Congress.  Nevertheless, Indian country leaders will continue to press for reforms in a number of important areas. 

Look for the following issues to receive attention in the next four years: 

  • Violence Against Women Act (VAWA): Congress failed to reauthorize VAWA at the conclusion of the last term.  In light of recent elections, there is growing pressure on Congress (especially the Republican Party) to pass this reauthorization.  The question is whether a final bill will include provisions designed to enhance protections for Indian women (it can’t be repeated often enough that 1 in 3 American Indian women will be raped in their lifetimes) by restoring tribal criminal jurisdiction over domestic violence on Indian lands.  The Obama Administration has worked to ensure that Indian Country language is included in this legislation.
  • Carcieri Fix: As with VAWA, Congress has failed to enact legislation to address the 2009 Carcieri decision.  The politics of a Carcieri Fix are more complex than VAWA reauthorization.  President Obama expressed support for a Carcieri fix as recently as December, and tribal advocates continue to press for this legislation.
  • Climate Change, Environmental Protection, and Sacred Sites:  In his second inaugural address, President Obama stated, “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”  Tribal communities, especially those located in Alaska and on the coasts, are at the forefront of feeling the impact of climate change.  The Administration has pledged to address the issue, and it must include tribes in that effort. 

The Department of the Interior has been criticized by tribal leaders for not taking adequate steps to protect sacred sites in its push to permit renewable energy projects on public lands during the first term. But, at the 2012 White House Tribal Nations Conference, the Administration announced an interagency Memorandum of Understanding intended to help agencies – including the Department of the Interior – work with tribes to protect sacred sites.  The U.S. Department of Agriculture prepared a report to Secretary Vilsack on tribal sacred sites in December 2012.  

The #IdleNoMore movement in the United States is coalescing around environmental and sacred sites issues, and will put significant pressure on the Administration to respond to Indian Country on these issues.

  • Energy Development:  The Department of the Interior’s new leasing regulations will make it easier for developers to establish renewable energy projects on tribal lands, but federal tax policies still make it difficult for tribes to partner with those developers (beyond simply serving as a landlord, and receiving rent).  Addressing these tax inequities, and revising the Department of the Interior’s Right of Way regulations, are the next steps in unlocking Indian Country’s renewable energy potential.

With respect to conventional energy, the oil & gas boom in places like the Fort Berthold Reservation and the U&O Reservation have posed significant challenges on the BIA to keep pace with development.  Shrinking budgets, due to the stalemate in Congress, will make it even more difficult for the BIA to work with tribes to ensure that they can capitalize on their energy resources.

  • Federal Recognition:  In 2012, the Department of the Interior presented testimony to the Senate Committee on Indian Affairs and suggested that some groundwork had been laid to address problems in the federal recognition process (Disclosure: I served as the witness for the Department of the Interior in that hearing).  The rulemaking process is long and arduous, and it takes several years to publish rules – even where there is a consensus in support of that effort.  The recognition process has strayed far from its roots in international law to a faux “scientific” review.  DOI will be under pressure to complete this reform before the conclusion of President Obama’s second term. 
  • Gaming: The Department of the Interior made significant progress in lifting the effective moratorium on reviewing tribal gaming applications, rescinding the infamous “Commutability Memo” in the process.  During President Obama’s first term, DOI set out a process whereby it would complete a review of applications based upon its own regulations.  DOI also issued three “Two-Part” Determinations, and articulated the factors that would be used to issue those decisions (with particular focus given to local support and tribal historical connections to proposed gaming sites).  The Department will be under pressure, from tribes, local governments, states, and Congress, to consistently apply these standards and issue decisions in a timely manner.
  • Playing Defense:  Finally, the Obama Administration will likely be put in the position of defending (in courts of law and public opinion) its advances in Indian policy.  Presently, there are ongoing lawsuits challenging the way in which the Administration has interpreted the Indian Reorganization Act in light of the Carcieri decision.  We may also see a pushback against DOI’s efforts to acquire land in trust on behalf of tribes.  The tax provisions of the BIA’s new leasing regulations, which clarify the federal government’s interest in promoting economic development on Indian lands, may also serve as a flashpoint.

There are a number of other issues that we can expect to arise during the next four years as well, including the selection of a new Secretary of the Interior to replace Ken Salazar, appointing an Indian judge to the federal bench, protecting tribes from the PACT Act, implementing the Cobell settlement, and putting meat on the bones of the President’s decision to endorse the United Nations Declaration on the Rights of Indigenous People. 

There is also a likelihood that other events will transpire that could affect Indian Country’s and the President’s agenda (such as a Supreme Court decision in its upcoming ICWA case or other unforeseen events).  No matter what, the next four years will present enough policy and legal issues to keep Indian Country leaders and advocates burning the midnight oil.

BIA Publishes Interim Guidance for tribal leasing regulations adopted under the HEARTH Act

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Here.

This document describes where tribes can submit leasing regulations adopted under the recently enacted HEARTH Act, and how the BIA will review those regulations to ensure that they comply with the new law.

Michigan Governor’s Office issues letter to BIA opposing Keweenaw Bay Indian Community gas station proposal.

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News coverage here.

Retrospective on Federal Indian Policy during President Obama’s First Term

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Sunday officially marks the conclusion of President Obama’s first term in office – as well as the beginning of his second term.  And with today’s announcement that Secretary of the Interior Ken Salazar will be stepping down soon, it is a good time to look back at some of the major developments in federal Indian policy over the past four years. 

 

At the Department of the Interior, Secretary Salazar will be remembered as one of the most forceful allies of Indian Country to have occupied the position to date.  Under his leadership, the Department of the Interior worked with the Department of Justice to settle the Cobell litigation and usher the Claims Settlement Act of 2010 to passage (though, this was not universally celebrated throughout Indian Country).  The Claims Settlement Act also resolved four Indian water rights lawsuits, which will result in more than $1 billion of funding for the affected tribes.

 

In addition to these important items, there were numerous other developments at the Department of the Interior under Secretary Salazar in President Obama’s first term:

 

  • Indian Land Policy:  DOI formulated and began to execute a coherent policy on Indian lands, which was based upon the (obvious) principles that tribes must have an adequate land-base to develop their economies, and that tribes and individual Indians should exercise control over their own lands. During the President’s first term, DOI completed more than 1,000 acquisitions of land into trust for Indian tribes – totaling nearly 200,000 acres.  This involved key administrative reforms to improve the way that land-into-trust applications are processed.  Also included in this effort, was an administrative process to review tribal trust applications in light of the Carcieri decision (under which some tribes acknowledged after the IRA’s 1934 enactment had land acquired in trust). 

 

DOI also streamlined its regulations for leasing Indian lands, making it faster and simpler for tribes and individual Indians to execute leases.  In a related effort, DOI worked with Congress to ensure passage of the HEARTH Act in 2012, to restore the ability of tribes to lease their lands without BIA control.

 

  • Staffing and Budgeting: Two of the least exciting, but most important, parts of managing any organization are staffing and budgeting.  Under Secretary Salazar, DOI had remarkable stability of leadership in matters impacting Indian Affairs.  Larry Echo Hawk served for three years as the Assistant Secretary – Indian Affairs, before Del Laverdure served as the Acting Assistant Secretary (Del Laverdure had served as a top official within the Office of the Assistant Secretary throughout the first term).  In the summer of 2012, Kevin Washburn was nominated and confirmed to the position in a short time period – notwithstanding the ongoing presidential election.  In addition, the BIA continues to be managed by the longest serving Director in its history – Mike Black.  

 

In the annual budgeting process, Indian Affairs offices within DOI were subjected to consistently smaller cuts relative to many other agencies within the Department (though Indian Country would obviously prefer increases to cuts any day of the week – and twice on Sundays).

 

  • Indian Gaming: In 2009, DOI was faced with a backlog of pending tribal gaming applications.  After what many deemed to be a slow start to processing those applications, the Department instituted a more predictable and transparent process to review those applications pursuant to regulations published in 2008.  In addition, DOI rescinded the dubious Commutability Guidance Memo in 2011.  Between 2010 and 2013, DOI issued a number of decisions on pending gaming applications – including three “Two-Part” Determinations.

 

DOI clarified and strengthened its position on tribal-state gaming compacts. Since 2009, DOI rejected several agreements because they included provisions that essentially permitted state governments to tax tribal gaming revenues (which is not permitted under the Indian Gaming Regulatory Act).  The Department also clarified what types of subjects may be included in those agreements.

 

President Obama’s first term saw the following favorable developments in other federal agencies:

 

  • Tax Policy Guidance: Tribes and individual tribal citizens had been raising concerns regarding IRS policies that questioned whether benefits received from tribal governments were subject to federal income taxes.  In December 2012, the IRS published proposed guidelines that clarify that such benefits would not be subject to income tax if benefits/payments are (1) made pursuant to a governmental program of the tribe; (2) for the promotion of general welfare (that is, based on individual or family need, and, uniquely in the case of programs of Indian tribal governments, to help establish Indian-owned businesses on or near the reservation); and (3) not compensation for services.

 

  • Tribal Law and Order Act and the Indian Health Care Improvement Act Reauthorization:  These two pieces of legislation marked the culmination of a long effort by tribal leaders and advocates to address key law enforcement and health care needs in tribal communities.  The Tribal Law and Order Act, in particular, will provide tribal governments with resources to improve tribal courts and enhance criminal sentencing authority for those courts.

 

  • Agreement between IHS and the Veterans Administration: In late 2012, the Indian Health Service and the Veterans Administration reached an agreement that would allow the VA to reimburse the Indian Health Service for direct care provided to Indian veterans.

 

  • Statement of Support for the UN Declaration on the Rights of Indigenous Peoples: At the 2010 White House Tribal Nations Conference, President Obama announced support for the UN Declaration on the Rights of Indigenous Peoples – a reversal from previous administrations (although a number of tribal leaders have criticized the administration relating to “implementation” of the Declaration).

 

While most of Indian country would view these as positive developments, several other important issues were left on the table during the first term, including:

 

  • Carcieri Fix:  Congress was unable to pass legislation to resolve issues in the land-into-trust process after the Supreme Court’s 2009 Carcieri decision, notwithstanding the strong support from the Obama Administration.

 

  • Violence Against Women Act (VAWA):  Like the Carcieri fix, Congress refused to pass a reauthorization of VAWA at the end of its last session, largely due to opposition to provisions designed to enhance protections for Indian women by key members.

 

  • Stafford Act Amendments: Tribal leaders and the Federal Emergency Management Agency sought amendments to the Stafford Act that would allow tribes to apply directly to FEMA for emergency relief, rather than going through state governors.  Congress did not pass these proposed amendments, despite widespread support.

 

These issues, and many more, are likely to continue to arise during the President’s second term, which begins next week.  I will touch upon some of the other big issues likely to arise over the next four years next week.