A Retrospective on Federal Indian Policy During President Obama’s First Term

Sunday officially marks the conclusion of President Obama’s first term in office—as well as the beginning of his second term. And with the recent announcement that Secretary of the Interior Ken Salazar will be stepping down soon, it is a good time to look back at some of the major developments in federal Indian policy over the past four years. 

At the Department of the Interior, Secretary Salazar will be remembered as one of the most forceful allies of Indian country to have occupied the position to date. Under his leadership, the Department of the Interior worked with the Department of Justice to settle the Cobell litigation and usher the Claims Settlement Act of 2010 to passage (though, this was not universally celebrated throughout Indian country). The Claims Settlement Act also resolved four Indian water rights lawsuits, which will result in more than $1 billion of funding for the affected tribes.

In addition to these important items, there were numerous other developments at the Department of the Interior under Secretary Salazar in President Obama’s first term:

  • Indian Land Policy: DOI formulated and began to execute a coherent policy on Indian lands, which was based upon the (obvious) principles that tribes must have an adequate land-base to develop their economies, and that tribes and individual Indians should exercise control over their own lands. During the President’s first term, DOI completed more than 1,000 acquisitions of land into trust for Indian tribes—totaling nearly 200,000 acres. This involved key administrative reforms to improve the way that land-into-trust applications are processed. Also included in this effort, was an administrative process to review tribal trust applications in light of the Carcieri decision (under which a number of tribes acknowledged after the IRA’s 1934 enactment had land acquired in trust). 

DOI also streamlined its regulations for leasing Indian lands, making it faster and simpler for tribes and individual Indians to execute leases. In a related effort, DOI worked with Congress to ensure passage of the HEARTH Act in 2012, to restore the ability of tribes to lease their lands without BIA control.

  • Staffing and Budgeting: Two of the least exciting, but most important, parts of managing any organization are staffing and budgeting. Under Secretary Salazar, DOI had remarkable stability of leadership in matters impacting Indian Affairs. Larry Echo Hawk served for three years as the Assistant Secretary – Indian Affairs, before Del Laverdure served as the Acting Assistant Secretary (Del Laverdure had served as a top official within the Office of the Assistant Secretary throughout the first term). In the summer of 2012, Kevin Washburn was nominated and confirmed to the position in an exceptionally short time period—notwithstanding the ongoing presidential election. In addition, the BIA continues to be managed by the longest serving Director in its history – Mike Black.

In the annual budgeting process, Indian Affairs offices within DOI were subjected to consistently smaller cuts relative to many other agencies within the Department (though Indian Country would obviously prefer increases to cuts any day of the week—and twice on Sundays).

  • Indian Gaming: In 2009, DOI was faced with a backlog of pending tribal gaming applications. After what many deemed to be a slow start to processing those applications, the Department instituted a more predictable and transparent process to review those applications pursuant to regulations published in 2008. In addition, DOI rescinded the dubious Commutability Guidance Memo in 2011. Between 2010 and 2013, DOI issued a number of decisions on pending gaming applications – including three “Two-Part” Determinations.

DOI clarified and strengthened its position on tribal-state gaming compacts. Since 2009, DOI rejected several agreements because they included provisions that essentially permitted state governments to tax tribal gaming revenues (which is not permitted under the Indian Gaming Regulatory Act). The Department also clarified what types of subjects may be included in those agreements.

President Obama’s first term saw the following favorable developments in other federal agencies:

  • Tax Policy Guidance: Tribes and individual tribal citizens had been raising concerns regarding IRS policies that questioned whether benefits received from tribal governments were subject to federal income taxes. In December 2012, the IRS published proposed guidelines that clarify that such benefits would not be subject to income tax if benefits/payments are (1) made pursuant to a governmental program of the tribe; (2) for the promotion of general welfare (that is, based on individual or family need, and, uniquely in the case of programs of Indian tribal governments, to help establish Indian-owned businesses on or near the reservation); and (3) not compensation for services.
  • Tribal Law and Order Act and the Indian Health Care Improvement Act Reauthorization: These two pieces of legislation marked the culmination of a long effort by tribal leaders and advocates to address key law enforcement and health care needs in tribal communities. The Tribal Law and Order Act, in particular, will provide tribal governments with resources to improve tribal courts and enhance criminal sentencing authority for those courts.
  • Agreement between IHS and the Veterans Administration: In late 2012, the Indian Health Service and the Veterans Administration reached an agreement that would allow the VA to reimburse the Indian Health Service for direct care provided to Indian veterans.
  • Statement of Support for the UN Declaration on the Rights of Indigenous Peoples: At the 2010 White House Tribal Nations Conference, President Obama announced support for the UN Declaration on the Rights of Indigenous Peoples – a reversal from previous administrations (although a number of tribal leaders have criticized the administration relating to “implementation” of the Declaration).

While most of Indian country would view these as positive developments, several other important issues were left on the table during the first term, including:

  • Carcieri Fix: Congress was unable to pass legislation to resolve issues in the land-into-trust process after the Supreme Court’s 2009 Carcieri decision, notwithstanding the strong support from the Obama Administration.
  • Violence Against Women Act (VAWA): Like the Carcieri fix, Congress refused to pass a reauthorization of VAWA at the end of its last session, largely due to opposition from key members to provisions designed to enhance protections for Indian women.
  • Stafford Act Amendments: Tribal leaders and the Federal Emergency Management Agency sought amendments to the Stafford Act that would allow tribes to apply directly to FEMA for emergency relief, rather than going through state governors. Congress did not pass these proposed amendments, despite widespread support.

These issues, and many more, are likely to continue to arise during the President’s second term, which begins next week. I will touch upon some of the other big issues likely to arise over the next four years next week.

Bryan Newland is a citizen of the Bay Mills Indian Community (Ojibwe) in northern Michigan. Newland is a Member of Fletcher, PLLC, a law and consulting firm based in Lansing, Michigan that provides services to tribes throughout the United States. He is a graduate of the Michigan State University College of Law, and is a contributor to the Turtle Talk Blog.