Fletcher: “A Look At The Next Four Years In Indian Affairs” @ Law360.com

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A Look At The Next Four Years In Indian Affairs

By Matthew Fletcher, Michigan State University College of Law

Law360, New York (January 19, 2017, 2:47 PM EST) —

Matthew L.M. Fletcher

The 2016 election brings the return of the Republican Party to the presidency, along with Republican control of both Houses of Congress and an infusion of conservative judges into the federal judiciary. The president-elect doesn’t have much of a track record on these issues. So far, all we know in the Indian affairs context is that Sen. Jeff Sessions (attorney general) and Rep. Ryan Zinke (secretary of the interior) have been nominated. One would think it would be difficult to predict how the next administration will act in the area of Indian affairs. But recent history of Republican administrations, as well as certain time periods in the history of Indian affairs, may be good indicators.

The Reagan administration (1981-1989) and the first Bush administration (1989-1993) began with the appointment of James Watt as secretary of the interior. Watt was known for policies favoring the private exploitation of public lands, usually for natural resources extraction, and converting federal public lands into private ownership. In Indian affairs, the administration invested itself in shrinking the trust obligations of the federal government to Indians and tribes. For some tribes, that meant federal intervention in tribal membership decisions to limit the number of tribal members. For some tribes, that meant support for gaming operations and other commercial enterprises. But it also meant more natural resources extraction from Indian lands, often without much assistance to Indian tribes to ensure environmental justice or commercial fairness to tribal nations.

Contrast that with the Clinton administration (1993-2001), which ushered into more formalized recognition of the federal trust responsibility to Indian tribes and Indians, support for Indian gaming opportunities, and the expansion of tribal self-determination and self-governance compacting. Assistant Secretary for Indian Affairs Ada Deer, along with the assist from Congress, formally acknowledged the sovereignty of 229 Alaska Native nations.

The second Bush administration (2001-2009) was known primarily for unofficially placing a moratorium on trust land acquisitions, restricting off-reservation gaming opportunities for Indian tribes, and rolling back near-completed decisions to acknowledge several Indian tribes, most notably the Schaghticoke Tribal Nation. There were three confirmed assistant secretaries for Indian affairs, but they served a total of less than four years. In other words, unconfirmed acting assistant secretaries were in charge for the majority of the second Bush administration’s two terms.

In contrast, the Obama administration took more than a half million acres into trust for Indian tribes. There were two confirmed assistant secretaries, Larry Echo Hawk and Kevin Washburn, who served closer to a total of seven of the eight years of Obama’s terms. Attorney General Eric Holder instructed the U.S. Department of Justice to intervene more aggressively in suits involving Indian tribes, especially in Indian child welfare matters. Both the DOJ and DOI supported the Tribal Law and Order Act of 2010 and the tribal jurisdiction provisions of the 2013 Violence Against Women Act reauthorization.

The first hints we have had about the new administration may be the president-elect’s public comments about Indian tribes that he competed with for gaming markets in the 1990s, highlighted in Bryan Newland’s survey. During the campaign, the president-elect made insensitive comments relating to Indians, for example, referring to Sen. Elizabeth Warren as “Pocahontas.” Perhaps this doesn’t predict much about the president-elect’s future policies relating to Indians, but the statements of his current surrogates suggest that the new administration’s Indian affairs actions may be a combination of the Reagan and Bush administration’s most damaging (to tribal interests) policies.

The nominee for attorney general, Sen. Sessions, voted against the 2013 VAWA reauthorization in part because of the tribal jurisdiction provisions. In his Senate confirmation hearing, he suggested his negative views on tribal courts remain, though he did say he would defend the act as attorney general. As senator, Sessions has a long history of fighting tribal interests in his home state of Alabama. It would be fair to say that the Justice Department is unlikely to continue to support the enhancement of tribal justice systems the same way the Obama administration did.

In the Department of the Interior context, Indian people associated with the president-elect’s transition talked about taking “tribal land away from public treatment,” which some financial commentators excitedly suggested “privatizing” Indian lands. The United States holds billions in assets in trust (and perhaps trillions, according to commentators). If the new administration moves to divest itself of these trust assets, as conservative think tanks advocate, highlighting massive dollar amounts as estimates of the value of those assets would lots of attention. However, Rep. Zinke is known as a strong supporter of federal public lands and conservation efforts. But he also expected run for Senator Jon Tester’s seat in 2018, and might not be long for the Department of the Interior if he is confirmed.

In any event, most Indian tribes aren’t interested in undoing the federal government’s trust obligations to Indian tribes. They want more control over tribal assets with the federal trust responsibility serving as a backdrop. The Obama administration carefully ratcheted back federal regulations limiting tribal ability to lease lands and issue rights of way, for example. These initiatives granted tribes control over trust assets, moves that the private resource extraction industry has fought politically and in court. We can expect the new administration to side with private industry on these issues going forward.

The three prior Republican administrations can be characterized by their negative views about federal public lands and the federal trust responsibility to Indians and tribes, coupled with cozy relationships with extraction industries. We can expect that and more from the new administration. Some tribes, mostly resource tribes, may be delighted by the new administration. For most Indian tribes, this will mean playing defense against federal interventions in their affairs.

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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