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Bureau of Indian Affairs punished employees after Southern Ute Tribe complained

Friday, December 16, 2016

The Southern Ute Tribe's Leonard C. Burch Tribal Administration Building in Ignacio, Colorado. Photo by jsvanstar

The Bureau of Indian Affairs punished two employees at the request of a "hostile" Southern Ute Tribe, according to a federal whistleblower report.

The employees uncovered "irregularities" in the way the BIA reviewed the tribe's oil and gas leases, the U.S. Office of Special Counsel said in the report. The agency approved the leases without reviewing them and without ensuring whether they complied with the National Environment Policy Act, the report stated.

But when the employees tried to address the issues with the tribe, they were met with fierce resistance, according to the report. Tribal leaders complained to the "highest levels" of the Interior Department and got the employees removed from the reservation in Colorado, an action that violated federal whistleblower laws.

“The federal government cannot take action against employees for blowing the whistle, even if the motive to retaliate comes from an outside source,” Special Counsel Carolyn Lerner said in a press release on Thursday. “Federal employees need to know that they will be protected for doing the right thing, especially when upholding the public interest in the face of pressure from powerful outside interests.”

According to the report, tribal leaders met with then-Secretary of the Interior Ken Salazar, who is from Colorado, and his top advisers to discuss the matter. Sometime after that, the BIA was ordered to reassign the two employees, the report stated.

"BIA's decision to acquiesce came from high levels within the agency," the report states, specifically naming Mike Black, the then-director of the BIA, and Mike Smith, a deputy director, as agreeing to punish the employees.

"[E]ven the office of the Assistant Secretary of the Department of the Interior for Indian Affairs agreed that the BIA should reassign" the employees, the report added.

At the time, the acting Assistant Secretary for Indian Affairs was Donald "Del" Laverdure. The reassignment decision occurred on or around September 13, 2012, shortly before Kevin Washburn was confirmed to the post.

But the actual reassignments occurred after Washburn was in office, according to the report. The first employee was told to move to a BIA office in California in November 2012 even though he determined he wouldn't be able to afford to live there. When he didn't show up, he was fired by Smith in February 2013, the report stated

Black has since moved to a different position at a BIA office in Montana. Smith remains a deputy director, according to the agency's website.

The employee who was fired reached a settlement in October -- four years after the ordeal began -- with the BIA to recover lost wages and compensation. He also was reinstated to the agency.

The second employee was reassigned to Oklahoma but later "relocated to an acceptable geographic area and position," the report stated. No settlement was reached on her behalf even though the Office of Special Counsel believed she was improperly punished.

"The Interior Department appreciates the review by the Office of the Special Counsel and intends to comply with their requests," the agency said in a statement. Those requests included restoring the fired employee and awarding him back pay and damages.

The Durango Herald, which first reported on the matter, contacted the Southern Ute Tribe to ask about the incident. The tribe said it "strongly disagrees" with the Office of Special Counsel's report.

"The tribe’s request for reassignment of these employees centered on their incompetence and disrespect for the tribe," the tribe said in a statement to the paper.

"The OSC conducted its investigation without the benefit of the tribe’s input or interviews with individuals involved and simply got it wrong," the tribe told the paper.

The tribe is a major player in the oil and gas industry, with assets both on and off its reservation in Colorado. Its leaders have long complained that the BIA lacks the expertise and staff to handle their needs.

"The tribe has achieved its stature despite the federal government’s stifling role in Indian energy development," Treasurer James M. “Mike” Olguin told a House committee in October.

Those kinds of complaints are now seeping up to Republican president-elect Donald Trump. The leader of his Native American Coalition doesn't think tribes should have to comply with certain federal laws like NEPA.

"In working with the incoming administration, I am confident that we can improve the land trusts and allow the tribes to be independent in determining their own use of resources and land," Rep. Markwayne Mullin (R-Oklahoma), a citizen of the Cherokee Nation who chairs the coalition, said in a statement last week. "It is time to end the overreaching paternalism that has held American Indians back from being the drivers of their own destiny."

Complying with NEPA can indeed be a headache for tribes. Due to lack of expertise and limited staff, it can take the BIA months, if not years, to review energy development agreements. As a result, tribes are losing out of on millions of dollars in revenues, the Government Accountability Office said in a June 2015 report.

But solutions -- such as putting more money into the BIA or even hiring more employees -- have been elusive. So in the case of the Southern Utes, the agency simply allowed the tribe to take control of leases, rights-of-ways and other energy-related activities, according to the Office of Special Counsel.

"Many of these documents were signed by the Superintendent without review," the whistleblower report stated. A Superintendent is the highest-ranking official within a BIA agency office.

Since higher-ups at the BIA weren't paying that much attention, the tribe was able to insert questionable provisions into the documents, according to the report. As one example, the tribe asserted that NEPA did not apply to certain gas easement, thereby eliminating the need for an environmental impact statement.

Government Accountability Office Report:
Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands (June 2015)