Trump administration sends mixed signals to tribes with regulatory agenda

Tuesday, March 6, 2018  

The Trump administration is asking tribes about easing burdens in environmental reviews even as it seeks to add more hurdles in other areas.

The National Environmental Policy Act requires agencies like the Bureau of Indian Affairs to conduct environmental reviews before undertaking major actions, such as placing land into trust or approving an energy project. But the law recognizes situations where an analysis might not be necessary.

These so-called categorical exclusions, or CATEXs, are the subject of a notice that was published in the Federal Register on Tuesday. The BIA wants to know whether it should make any changes to the process.

"The BIA is requesting comment on whether to revise or delete any current CATEXs or add any new CATEXs," reads the notice, which was signed by John Tahsuda, who serves as the Principal Deputy Assistant Secretary for Indian Affairs for the Trump administration.

The notice does not offer up any examples of potential revisions. But during a consultation with tribes last month, Tahsuda indicated that CATEXs weren't being utilized enough.

"We actually have about 15 different categories in our administration currently that are really not used," Tahsuda, who is a citizen of the Kiowa Tribe and is the highest-ranking official at the BIA because the agency lacks a Senate-confirmed, permanent leader.

"We are basically making tribes go through needless analyses that they don't necessarily need to right now," Tahsuda said at the February 20 session in Phoenix, Arizona.

Tribes have indeed been vocal in seeking ways to cut down on red tape. One way to do that, many argue, is to make it easier for them to restore their homelands and reverse the effects of negative federal policies like allotment and termination.

But tribal leaders and advocates believe Tahsuda and fellow officials at the Department of the Interior are going about regulatory reform in the wrong way. Proposed changes to the Fee-to-Trust Regulations (25 CFR 151) would instead make it more difficult to to business in Indian Country, they charge.

"It seems strange that in this era of deregulation, where America is open for business, that Indian Country should be mired in regulations," Herminia Frias, a council member from the Pascua Yaqui Tribe, told Tahsuda at the meeting in Phoenix.

And at a consultation a month earlier, an attorney who is representing the Oglala Sioux Tribe offered up a concrete example of a CATEX that should be considered by the Trump team. But Tahsuda wasn't present at that session, which took place almost a year to the day on which Trump took office.

"The department should deem on-reservation Indian land acquisitions to be categorically excluded," said Mark Van Norman, who is a citizen of the Cheyenne River Sioux Tribe.

"After all, the reservations were reserved as Indian homelands, and the lands are to be used as Indian homelands," Van Norman said on January 18 in Prior Lake, Minnesota.

Bridgett Donahue, the director of real estate for the Mille Lacs Band of Ojibwe, also highlighted the mixed messages being sent by the administration. The BIA on one hand wants to reduce environmental reviews at the federal level while calling for the opposite in tribal communities, she said.

"Loosening Indian trader regulations and NEPA while tightening fee-to-trust regulations makes no sense if the goal is to help tribal economic development and reduce regulatory burdens on tribes," Donahue said at the session.

PDAS Tahsuda continues government-to-government consultation on Fee to Trust Regulations today in Phoenix @HeardMuseum. Thank you Tribal Leaders for your valuable input. pic.twitter.com/xSxGfJZUix

— Indian Affairs (@USIndianAffairs) February 20, 2018

Donahue isn't the first to point out perceived inconsistencies in the BIA's agenda. Unlike the controversial land-into-trust initiative, tribes have eagerly welcomed an update to the so-called Indian trader regulations, saying it will help them grow their economies by outlawing state and local taxation on Indian lands.

But after moving forward with the Indian Traders (25 CFR 140) project early last year, the effort has fallen by the wayside. The BIA official who was tasked with the regulation, Gavin Clarkson, was sidelined late last year after drawing unwanted attention in the mainstream media.

Clarkson, who is a citizen of the Choctaw Nation, ended up leaving the department and announced that he was running for Congress as a Republican. If he wins election in New Mexico's 2nd Congressional district, which is home to several tribes, he told Indianz.Com that he plans to address initiatives like dual taxation. His campaign platform argues that doing so will generate $20 billion for the American economy.

The Trump administration, on the other hand, has not taken concrete efforts to finalize Clarkson's work on the Indian Traders rule even though the comment period closed more than four months ago. Responses from Indian Country were overwhelmingly positive.

Yet the BIA has moved forward with the land-into-trust changes despite widespread opposition. The comment period was extended to June 30 after tribal leaders complained about a lack of an Assistant Secretary for Indian Affairs.

Tara Sweeney, whom President Donald Trump nominated for the post almost five months ago, has yet to secure a confirmation hearing in the Senate amid questions about her background.

"The Senate has yet to confirm an Assistant Secretary for Indian Affairs, which is an important aspect of the checks and balances built into the United States Constitution," said Bruce Talawyma, the chief of staff for Chairman Timothy Nuvangyaoma of the Hopi Tribe. "Similarly, there is no Deputy Solicitor for Indian Affairs."

"The department's current consultation efforts would be better served if Senate-confirmed political appointees were leading this effort," Talawyma said.

Federal Register Notice:
Updates to Bureau of Indian Affairs Categorical Exclusions Under the National Environmental Policy Act (March 6, 2018)