WASHINGTON, D.C. -- The first warning arrived on Thursday. Just a few hours after David Bernhardt
was confirmed as the leader of the federal agency with the most responsibilities in Indian Country
, an email announced he was being sued.
According to one faction of the California Valley Miwok Tribe
, the new Secretary of the Interior
-- aided by the Bureau of Indian Affairs
-- was infringing on the sovereign nation's inherent rights.
“David Bernhardt and the BIA are allowing non-tribal individuals, who we believe are casino developer funded, to hold a secretarial election to make themselves members of our tribe and pursue their own agenda," Silvia Burley
, who has previously been recognized
as the legitimate leader of the tribe
, said in the missive.
“If this election goes forward it will trample on tribal sovereignty and ultimately set the precedent that non-tribal individuals can take control of tribes across the country," Burley warned.
A day later, the federal judge assigned to the case didn't seem as alarmed
. At the conclusion of a hearing on Friday, he denied Burley's request
to stop the secretarial election
, and the BIA was allowed to finish collecting ballots on Monday.
But the dispute is far from over. Now that the BIA is moving forward despite questions about the election, attorney Peter D. Lepsch
said Burley will continue to fight for a role in determining what happens to her people in central California.
"The BIA should know better," Lepsch told Indianz.Com after the hearing in the nation's capital. "The actions they are taking set potentially an enormous precedent and threaten internal tribal matters."
Bernhardt, too, should know better, according to critics in Congress. The same day the secretarial election concluded, two key Democrats announced that the new Secretary of the Interior, who has repeatedly presented himself as model of ethical behavior, was being investigated by his own agency
for ethical lapses.
In a letter sent to Rep. Betty McCollum
(D-Minnesota) and Sen. Tom Udall
(D-New Mexico), the Office of Inspector General at the Department of the Interior
confirmed that it was looking into complaints against Bernhardt. Not just one complaint, either, but seven
"We will conduct our review as expeditiously and thoroughly as practicable," Deputy Inspector General Mary L. Kendall told
McCollum, who chairs the House subcommittee in charge of Interior's funding
and Udall, who serves as vice chair of the Senate Committee on Indian Affairs
and is the top Democrat on the McCollum's counterpart panel in the Senate
The seven complaints largely focus on allegations that Bernhardt, a longtime lawyer and lobbyist
who joined the Trump administration 18 months ago
, made decisions about former clients in his role as Deputy Secretary of the Interior. During his confirmation process for that position, and again for his new one, he pledged he would not
With a spectator in a swamp creature mask
sitting just a couple of rows behind him, Bernhardt said on March 28: "I have implemented an incredibly robust screening process to ensure that I don't meet with former clients or participate in particular matters involving specific parties that I have committed to recuse myself from."
Interior employees, in fact, know that Bernhardt has carried around a list of former clients as part of his effort to avoid matters affecting entities that paid his bills when he was in the private sector. But they also know it contained dates that indicated when he would able to able to participate in certain matters, a timing issue he alluded to in his first ethics letter
on file with the department.
"He's the ultimate swamp creature," one tribal advocate said in reference to Bernhardt's need to maintain such a list. A second person who does business with Interior also has been told about the dates on the document, which The Washington Post reported
was the size of a "small card."
Bernhardt's allies, though, aren't troubled by the allegations. Sen. Lisa Murkowski
(R-Alaska), the chair of the Senate Energy and
Natural Resources Committee
, dismissed them as the work of "well-funded groups that are working very hard, very energetically against his nomination."
But Murkowski, who also chairs the Senate subcommittee in charge of Interior's funding, the one where Udall is the highest-ranking Democrat,
made a statement that has since turned out to be incomplete in light of the new developments.
"We were told that there are no open investigations into Bernhardt," Murkowski said on April 4 as she advanced
the nomination to a final vote on the Senate floor, one in which almost every Democrat voted against
In addition to McCollum, a former co-chair of the Congressional Native American Caucus, and Udall, who won't be seeking re-election, other Democrats requested investigations into Bernhardt. Sen. Ron Wyden
(D-Oregon), Sen. Mazie Hirono
(D-Hawaii) and several other colleagues
received similar letters
on Monday that cited the "seven complaints."
Outside groups -- maybe well-funded, maybe not -- also lodged complaints
. One was the Campaign Legal Center
, a non-partisan watchdog.
“The story of David Bernhardt is a classic story of the problem with lobbyists passing through Washington’s revolving door," Delaney Marsco the group's ethics counsel, said on Monday
after receiving its own letter referencing the "seven complaints."
During the George W. Bush administration, Bernhardt held
a number of key positions at Interior
, including director of the Office of Congressional and
and counselor to then-Secretary Gale Norton
was the first woman in the job.
He eventually became Solicitor, the highest-ranking
at the department, an office that has played a key role in
the Indian Country actions seen as affronts to the government-to-government
relationship between tribes and the federal government.
Indianz.Com Video by Kevin Abourezk: David Bernhardt at National
Congress of American Indians 2017
'Lip service' at the Department of the Interior
Since the start of the Trump administration in January 2017, tribes have endured a series of policy debacles
at the Department of the Interior
, an agency that includes the Bureau of Indian Affairs
, the Bureau of Indian Education
and the Office of the Special Trustee for
. They include:
• A move to reorganize all bureaus, agencies and offices at Interior into a "unified" system of 12
. The proposal would do away with the existing regions of the BIA
and the way in which tribes
with the department. As Deputy Secretary, Bernhardt has told
that the BIA won't be included in the restructuring but information
about the decision
hasn't been forthcoming from Washington.
• The withdrawal of a pro-treaty
rights legal opinion
that was formulated in the wake of the #NoDAPL movement
against the Dakota Access Pipeline. The Trump administration put the opinion on
hold at the same time it approved the infrastructure project over the objections
of tribes. The opinion was evenutally
even after a federal
judge ruled that the pipeline approval process
was flawed. The matter
remains under litigation.
• A decision to scale
back the Land Buy-Back Program for Tribal Nations
to a smaller number of
reservations. Tribes that were left out of the new push weren't told about the
action before the announcement. The Trump administration also won't commit to
finding a way to extend
the funding for ongoing and future land consolidation efforts
. The money is
to run out
within the next couple of years.
• A refusal to approve gaming agreements for the Mashantucket Pequot Tribal
and the Mohegan
despite pledges to do so, including one made directly by former
Secretary Ryan Zinke, who resigned
after facing questions about his role in
the matter. A federal grand jury has looked into Zinke's handling of the
debacle, including whether he lied about a meeting in which he told the leaders
of the tribes, along with the governor of Connecticut, of his intentions.
The meeting, which took
place on Mohegan homelands in June 2017
, has been described to Indianz.Com
by multiple sources. The gaming agreements have since been approved, but only
after the tribes initiated litigation. The Office of Inspector General opened an investigation into the matter
a year ago but no conclusion has been reported to the tribes.
• A controversial proposal to revamp the fee-to-trust process
in which tribes restore their homelands,
making it more
difficult for them
to do so. As Deputy Secretary, Bernhardt told tribes in February that the department was not going to move forward
with the initiative due to widespread tribal opposition. However, a separate policy that imposes additional hurdles on off-reservation land-into-trust applications remains
according to a senior BIA official.
• A failure to follow through on regulations that would boost
tribal economies by addressing state and local taxation
on their lands. As
Deputy Secretary, Bernhardt
told tribal leaders
that he was still open to the rule as of October 2017.
But a document circulating within Interior and described to Indianz.Com by those
who have seen it indicates that the update
to the so-called Indian Traders rule
was removed from an internal priority
list after Bernhardt joined the department and before he made his remarks to
• A decision to dismantle
the Bears Ears National Monument
despite strong support from Indian Country,
followed by another directive to limit
in an area in Utah where ancestral villages, sacred
sites, burial grounds, gathering sites and other important places of worship and
pilgrimage are located. The matter is being litigated in federal court amid
questions about energy companies influencing Interior's recommendation to
dramatically reduce the boundaries of the monument.
• A failure by the department to fully support the loan
guarantee program at the Bureau of Indian Affairs
. As Deputy Secretary,
Bernhardt refused to clear up a legal issue that had some within Interior
convinced the government would be able to walk away from loan guarantees --
worth tens of millions of dollars -- that were promised to tribes, according to
advocates who were told of the dispute. BIA staff was able to work with legal
officials to resolve the matter but the department has since proposed to eliminate
in its fiscal
year 2020 budget
Indianz.Com Video by Kevin Abourezk: David Bernhardt on Indian Trader
• A decision to halt all homelands applications in the state of Alaska, another
development made without tribal consultation or public notice. The action was
taken a day after
the Senate confirmed Assistant Secretary for Indian Affairs Tara Sweeney
who is from the state, but before she was sworn into her post at the department.
The Solicitor at Interior
also rescinded an opinion that affirmed the ability of tribes in Alaska to
follow the land-to-trust
, even though they secured a court
victories in favor
of their rights.
• The legal official who rescinded the pro-treaty rights opinion as well
as the Alaska land-into-trust opinion has since been nominated to serve
as Solicitor at Interior
. Daniel Jorjani took both of those actions in his
role as Principal Deputy Solicitor, a position which did not require Senate
confirmation. His wife, Aimee Jorjani, is on track to securing
approval to serve
as Chair of the Advisory Council on Historic
, an independent federal agency that deals closely with tribal
cultural and historic resources.
• Another decision affecting Alaska, this one to re-examine the way in
which tribes gain recognition
of their governments under the Indian Reorganization Act
. During a
consultation session in December, a senior political official at the Bureau of
Indian Affairs admitted that the department was told by the White House to take
up the initiative, again without prior notice.
• A proposal for the Bureau of Indian Affairs to stop
issuing Certificates of Indian Blood (CDIBs)
that was quickly questioned by
tribes across the nation. Freedom of Information Act requests submitted by the
Broadman law firm
indicate the proposal surfaced within the agency without
so much as a paper trail.
• A decision to rescind a homelands application for the Mashpee Wampanoag
, whose ancestors were among the first to welcome European settlers
nearly 400 years ago. The move paves the way for the tribe's reservation to be
taken out of trust, something that hasn't happened since the disastrous
As Deputy Secretary, Bernhardt has told tribes that the
department is constrained by a restrictive
U.S. Supreme Court decision
and another top official has attempted
to undermine a pro-tribal legal opinion
on the matter. The Trump
administration, overall, has been silent
on a Congressional "fix"
to the Carcieri v.
decision despite it being a long-standing priority of Indian
California Valley Miwok Tribe - Chairperson Silvia Burley pictured with Department of the Interior Solicitor Hilary Tompkins at the 2011 White House Tribal Nations Conference, Washington DC 12.01.2011Posted by California Valley Miwok Tribe on Tuesday, January 13, 2015
Senate Energy and Natural Resources Committee
Meeting to Consider Pending Nominations
(April 4, 2019)Full
Committee Hearing to Consider the Nomination of Mr. David Bernhardt
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