Deputy Secretary of the Interior David Bernhardt addresses the executive council winter session of the National Congress of American Indians in Washington, D.C, on February 13, 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

National | Politics | Trust

Tribes remain wary of Trump administration despite apparent concessions on policy disasters

Thursday, February 21, 2019

By Acee Agoyo

With one figure forced out of Washington under a cloud, the official tapped by Donald Trump to run the Department of the Interior is promising a new era of relations with Indian Country.

In his first remarks to the National Congress of American Indians since being named by the president, Deputy Secretary David Bernhardt said he was pulling the plug on a controversial proposal that would have made it more difficult for tribes to restore their homelands. After a prominent chairwoman who served at the department during the Obama era interjected during the speech, he declared the Fee-to-Trust Regulations (25 CFR 151) dead.

“I have no interest in modifying our 151 regulations unless you want them changed so we are not going to go forward with that matter," Bernhardt told tribal leaders last Wednesday during NCAI's winter session in D.C.

Bernhardt also said he wasn't going to impose a reorganization on the agencies at Interior that serve Indian Country. Tribes had already voiced widespread objections to the proposal, which would have dramatically changed the way they work with the Bureau of Indian Affairs and the Bureau of Indian Education by moving them to a new "unified" regional system throughout the entire department.

"As we listened, it was clear enough that you did not want to be part of that unified region, and you're not," Bernhardt said. "So the BIA and the BIE regions have remained intact and I can assure you that they will remain intact as we move forward with any plans to improve the Department of the Interior."

"Our current regional structure will remain intact," Assistant Secretary for Indian Affairs Tara Sweeney, who oversees the BIA and the BIE, reinforced in remarks to NCAI after Bernhardt spoke.

Deputy Secretary David Bernhardt says the reorganization of the Department of the Interior will not change the regions of the Bureau of Indian Affairs and the Bureau of Indian Education. “I can assure you that they will remain intact.” #ECWS19 @DOIDepSec pic.twitter.com/I4tZbuHhRH
— indianz.com (@indianz) February 13, 2019

The land-into-trust regulations and the reorganization were among the policy disasters that NCAI President Jefferson Keel singled out in the 17th annual State of Indian Nations earlier in the week. Though Bernhardt did not watch the speech in person, two officials from Interior were in the audience, and they heard the strong rebuke of the decisions being made at their department during the tenure of former Secretary Ryan Zinke, who resigned after facing questions about his ethics.

"The federal government's policy for tribal lands needs to put the interests of tribal nations first -- and no one else's," Keel asserted.

The land-into-trust process was authorized by Congress after the failures of the disastrous allotment period, during which tribes lost 90 million acres, often through shady actions. The 151 proposal that was initiated under Zinke's watch would have made it all but impossible to correct those mistakes, critics said.

Of the reorganization, which Zinke announced on his first day of the job, Keel called it "rushed and ill-conceived." He said it was largely developed "without tribal input and against our declared wishes."

"This effort has featured alarming changes made with no consultation or explanation," said Keel, who also serves as lieutenant governor of the Chickasaw Nation.

Deputy Secretary David Bernhardt is dropping a controversial land-into-trust proposal that tribes have opposed. “I have no interest in modifying our 151 regulations unless you want them changed so we are not going to go forward with that matter.” #ECWS19 @DOIDepSec pic.twitter.com/TahtDINtjx
— indianz.com (@indianz) February 13, 2019

In spite of Bernhardt's apparent concessions, Indian Country leaders remain wary of an administration where they have seen few positive gains and one in which the White House has severely stumbled with its outreach. Will Micklin, a vice president of the Tlingit and Haida Tribes, said he was "very happy" to hear about the death of the 151 proposal but he insisted on holding Interior accountable to the promise received at the meeting.

"We’ll make sure we follow up on that," responded Keel, who noted that he was already planning to meet with Bernhardt to discuss a wide range of Indian Country's priorities and concerns.

"He's given me his word that we will do everything we can to get things accomplished," Keel added.

Micklin further pointed out that Bernhardt was silent on a major issue affecting tribes in Alaska. Without consultation or advance notice, Interior last June put a stop to the land-into-trust process in the state pending further review.

The BIA has since held consultation and listening sessions -- including some attended by Sweeney, who is the first Alaska Native woman to serve as Assistant Secretary for Indian Affairs -- to gather input on the issue. Eight months later, Micklin said the hold has morphed into an unwanted "moratorium" that was imposed on tribes without their consent.

"They tell us that they have not stopped processing fee-to-trust applications for Alaska tribes but if you never finish, it's the equivalent of a moratorium," Micklin said of the Trump administration's ongoing review, which has already included 12 sessions, with even more being held next month before the close of the comment period on March 15.

"They're just not doing it," Micklin said of the lack of action on pending homeland applications in Alaska, where tribes were denied the ability to participate for decades. "We see no progress."

WOW. A day after hailing the "historic" addition of an Alaska Native to the team, the Trump administration has withdrawn -- pending "further review" -- an Obama-era legal opinion that affirmed the rights of tribes in Alaska to restore their homelands https://t.co/q89IVhGRpi pic.twitter.com/1i4KrcDMRo
— indianz.com (@indianz) June 29, 2018

Talk of a land-into-trust moratorium revives old wounds that Indian Country suffered during the George W. Bush era. Tribes saw a virtual halt to their applications in what they saw as punishment for the Cobell trust fund lawsuit.

One senior official eventually admitted the department wasn't eager to acquire more trust lands because of Cobell and other trust-related litigation. That person -- Jim Cason -- has since returned to Interior to serve the Trump administration in the same role as Associate Deputy Secretary.

Bernhardt also held key positions at Interior during the same time. He was a counselor to then-Secretary Gale Norton, who was the first woman in the job, and later became Solicitor, the highest-ranking legal official at the department.

Many leaders and advocates felt that the proposed 151 regulations, along with other efforts to restrict new trust land acquisitions, showed that Indian Country was once again being punished for the government's sins. The chief of the Mohegan Tribe last summer told Cason point blank that he was exhibiting signs of "Cobell PTSD," a phrase that some Indian law and policy figures have been using to describe their dealings with the Trump team.

Chief Lynn Malerba of Mohegan Tribe tells top Trump administration official: “Don’t let Cobell PTSD flavor this discussion”#NCAIMY17 pic.twitter.com/t0tzwPVsHY
— indianz.com (@indianz) June 13, 2017

But as Bernhardt disclosed that he checked into a hospital emergency room in the hours before his speech last week, he insisted that he has not fallen victim to the same syndrome. Despite the acrimony of Cobell and other trust matters, he said he viewed his prior tenure at Interior as valuable.

"It was difficult time for the relationship between the office of the Secretary of the Interior and the NCAI," Bernhardt said. He didn't outright mention that the Bush team effectively boycotted the nation's largest inter-tribal organization for several months after trust reform talks broke down.

"However, it was an extremely educational time for me," Bernhardt added, saying that he was able to learn directly from tribal leaders about the federal government's trust and treaty responsibilities.

Besides tribal leaders, he said Neal McCaleb, who resigned as Assistant Secretary for Indian Affairs after coming under a cloud for his role in Cobell, and Ross Swimmer, who served as Special Trustee for American Indians despite having an extremely poor reputation in Indian Country, were influential figures to him.

Indianz.Com on SoundCloud: State of Indian Nations #SOIN2019

But even though NCAI President Keel didn't have too many kind words for Interior during the State of Indian Nations, Bernhardt said he wasn't going to hold the rebuke against anyone,. He promised he would still be able to work with the organization, and with tribes, even if he comes under fire.

"I am very comfortable doing both," he said. "I want to be a partner with you ... and I want you to hold me accountable."

"Because when I give you my word, it's real," Bernhardt said to applause.

For now, Bernhardt is serving double duty at Interior -- as Deputy Secretary and as "acting" Secretary. Before he can assume the top role at the department, he must be confirmed by the Senate.

The Senate Committee on Energy and Natural Resources has yet to announce a confirmation hearing for Bernhardt. But he already has one prominent and powerful member on his side.

“I strongly support David Bernhardt to serve as the next Secretary of the Interior," said Sen. Lisa Murkowski (R-Alaska), who chairs the committee. She also spoke to NCAI last Wednesday but did not discuss the nomination during her remarks.

"He already has helped the department accomplish a great deal for Alaska and the nation, both as deputy secretary and as acting secretary, and he is more than capable of leading on a permanent basis," said Murkowski. "I will schedule a hearing and seek to move his nomination forward as expeditiously as possible.”

But Democrats, like tribal leaders, are concerned. Sen. Tom Udall (D-New Mexico), who serves as vice chairman of the Senate Committee on Indian Affairs, said Bernhardt's record on tribal issues has been negative.

"On many of the most critical matters facing the Interior Department – from tribal sovereignty, to conservation and protection of public land, to the fate of endangered wildlife and ecosystems – I fear things could go from bad to worse under new leadership," said Udall. He addressed NCAI last Tuesday.

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