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

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.

NIGC NOT Making Lists, Checking Twice

Maybe Chairman Hogan read Matthew’s post yesterday . . .

From Indianz.com:

NIGC’s Hogen not drawing up post-1934 tribes list

The National Indian Gaming Commission is not compiling a list of tribes that were recognized after 1934, Chairman Phil Hogen said on Tuesday. Hogen, a member of the Oglala Sioux Tribe, of South Dakota, spoke of the need for such a list in an Indian Country Today story that was published online on Monday. But in a follow-up to Indianz.Com, he said the NIGC isn’t leading the effort.”While I and the NIGC are concerned about the potential fallout of the Carcieri decision, we are not assuming the primary responsibility for determining which tribes may or may not be affected by the decision,” Hogen said. “We are certainly not drawing up any lists to that effect.”

The U.S. Supreme Court decision in Carcieri v. Salazar limits the land-into-trust process to tribes that were “under federal jurisdiction” in 1934. Coming up with a list of affected tribes “might be helpful,” Hogen acknowledged. Citing his response to the decision and his stance on other issues, the National Indian Gaming Association is calling for Hogen, a Bush nominee, to resign.

Gov. Carcieri’s Spending on SCOTUS Case Part of Large State Budget Deficit

Gov. Carcieri spent $200,000 on the Carcieri v. Kempthorn case, which contributed to overspending in the Governor’s office and leaving the state in a deficit.  While a small part of the larger $33 million deficit, it is the first time the state has had “an end of year deficit in modern history attributable to overspending.  From The Providence Journal by Katherine Gregg (h/t Indianz):

Asked more specifically to list the expenses that resulted in the $184,152 deficit in the governor’s office accounts, she cited two. She said the administration planned to sublet to Guam an empty office the state has maintained in Washington for years at a cost of $2,000 a month, but the paperwork took longer than expected to go through. She also cited Carcieri’s hiring of former U.S. Solicitor General Theodore B. Olson — the lawyer who successfully argued the case that put George W. Bush in the White House — to help the state in its fight to keep control of 31 acres owned by the Narragansett Indian tribe. Continue reading

Rhode Island S. Ct. Decision in Narragansett Smoke Shop Case – Gov. Carcieri Doesn’t Have to Testify

The Rhode Island Supreme Court quashed a trial court order compelling Gov. Carcieri to testify in court on the issue of whether state police used excessive force in shutting down the Narragansett smoke shop and arresting many members of the tribe, injuring several people in the process.

Here is the decision.

“Work[ing] Over” Appellate Litigators: The Rhode Island Supreme Court

From the Providence Journal (H/T Indianz):

“I’d rather eat peas, go to a dentist, and listen to Britney Spears sing than be a lawyer appearing before the state Supreme Court.

“These judges are tough. In questions and sideline commentary during oral arguments, they’re abrasive with all parties. At yesterday’s hearing on whether Governor Carcieri must testify in the coming Superior Court trial of Narragansett Indians arrested in the 2003 smoke shop raid, the justices first pounced on his lawyer, Marc DeSisto, and on Special Assistant Attorney General Pamela Chin, who was on the same side.

“Then they pounced as aggressively, if not more, on William Devereaux, lawyer for the Narragansetts. Then, when DeSisto rose for rebuttal, Chief Justice Frank Williams greeted him by chirping, “We’ll work you over, too.”

Cert Petition in Carcieri v. Kempthorne

From Indianz.com:

Rhode Island appeals land-into-trust ruling
Friday, October 19, 2007

The state of Rhode Island is asking the U.S. Supreme Court to hear a land-into-trust case that is being watched by tribes nationwide.

In July, the 1st Circuit Court of Appeals ruled that the Bureau of Indian Affairs can place 31 acres in trust for the Narragansett Tribe. The tribe is like any other tribe and can follow the Indian Reorganization Act, which authorized the land-into-trust process, the court said.

As I will argue in my forthcoming article, “Factbound and Splitless: An Empirical Study of the Impact of the Certiorari Process on Federal Indian Law,” the Supreme Court is unlikely to grant cert. in this case for two important reasons. First, there is no circuit split (“splitless”). What that means is that the federal courts of appeal that have addressed the question of the constitutionality of the fee to trust process (25 U.S.C. § 465) — the 8th Circuit in South Dakota v. Kempthorne, the 10th Circuit in Utah v. Shivwits, and the 11th Circuit in Roberts v. U.S., are examples — have held (just as the 1st Circuit did here) that the statute is constitutional.

Second, this case involves the muddying aspects of the Rhode Island Indian Claims Settlement Act and how it affects the application of § 465, rendering this case a bit messy as a factual matter (“factbound”). If this was a straight-up interpretation of § 465 without the Settlement Act’s application, the Court would be more likely to grant cert (although, without a split, not so much). In short, this case implicates a relatively small number of tribes (those Rhode Island tribes).

Land-into-Trust Decision:
Carcieri v. Kempthorne (July 20, 2007)

Earlier 1st Circuit Decision:
Carcieri v. Norton (February 9, 2005)

Relevant Documents:
Carcieri v. Norton Briefs, Opinions (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe – http://www.narragansett-tribe.org
Tribal Supreme Court Project – http://www.narf.org/sct/index.html