Now that Interior Secretary Ryan Zinke has been confirmed, the Administration will presumably turn to the sub-cabinet positions at the Department of the Interior. Former BIA director Mike Black is currently the Acting Assistant Secretary for Indian Affairs, and he understands the job well. In the expectation that an Assistant Secretary for Indian Affairs may well be named soon, however, I offer my advice in the form of a letter to the next occupant of that position, whoever it may be.
Dear Assistant Secretary;
Congratulations on earning one of the hardest jobs in Washington! You will need a lot of information to be successful. One of the great things about the position is that many people will give you unsolicited guidance, wisdom and advice. Let me be the first.
First, it is a powerful job. Much of the power has existed for a very long time. Felix Cohen, John Collier, and other New Deal officials deserve a lot of credit for their work. They created a lot of power to do good in Indian country and you will now bear that power. While Congress has “plenary power” in Indian affairs, Congress has delegated many of the most significant powers to the Secretary of the Interior, who has in turn delegated those powers to the Assistant Secretary for Indian Affairs. For example, the Assistant Secretary can take lands into trust, thus restoring tribal jurisdiction over the lands and removing lands from county tax rolls. The Assistant Secretary for Indian Affairs can declare new Indian reservations, or expand existing reservations. The Assistant Secretary for Indian Affairs can even extend federal recognition to an unrecognized tribe.
But the job is not nearly as powerful as you need it to be. The Trump Administration, like every administration before it, has a trust responsibility to Indian tribes. This trust responsibility is, theoretically, carried by the entire federal government, but it practically rests on your shoulders. No matter who bears specific statutory authority for a particular matter in the federal government, chances are tribes will expect you to address it. Most of the tribe's complaints are regarding matters that are outside the limited authority of your office. They are with the Forest Service in the Department of Agriculture, or the Department of Labor, or the Army Corps of Engineers, or even the Departments of Defense or State. In sum, you have a tremendous amount of responsibility and very little actual authority.
Your actual power exists mostly within Department of the Interior and the limited area of Indian Affairs. Within the Indian Affairs domain, the Assistant Secretary for Indian Affairs has a role in nearly every senior level hiring decision. The Assistant Secretary for Indian Affairs has the power to veto promotion of any senior official in the BIA and the BIE. As a result, the Assistant Secretary’s interests are considered in a wide range of areas of the Indian Affairs portfolio.
The Assistant Secretary for Indian Affairs oversees a large budget. During my time in office, it grew from $2.3 billion to $2.8 billion. That sounds good, but very little of that money is subject to the free discretion of the Assistant Secretary for Indian Affairs. Congress proscribes how most of that money can be used and limits the Assistant Secretary's ability to move it among accounts. Moreover, much of it is subject to formulas developed by tribes to insure fairness in distribution. And because achieving fairness almost always involves compromise, almost no one will be happy with the actual distribution. This leads to another point.
It is often a thankless job. And perhaps for good reason: no matter how hard you work, it will be difficult to address more than 200 cumulative years of historical injustice. Emotionally this is burdensome because every day you are in Washington, you will work hard with your career Indian Affairs staff to make an entrenched bureaucracy function better for Indian tribes, and nearly every day you are out in Indian country, you will be blamed for being part of the problem. And people outside the government don’t necessarily realize that, in Washington, you must run a thousand miles to move policy by an inch. Thus, Indian people will view you, at best, as ineffectual and at worst, as evil. No good deed goes unpunished. You will be accused of genocide more often than you will be thanked. You will occasionally get a “thank you,” but it will almost never be from a tribal leader; it will more often be from a lobbyist who follows it with, "by the way, can we meet next week to talk about another matter?"
Remember, it is not about you. Tribal leaders and Indian communities continue to carry a good deal of anger and resentment for federal officials. All of this is well-earned. As a scholar, I characterized this as the “cavalry effect” – the notion that the federal employee today is a descendant of the blue-coated cavalry officer who committed murder at Sand Creek or Wounded Knee. In some communities, the anger is expressed in a very personal fashion: “You broke our treaties and you tried to terminate us." Do not accept this framing the issue. It is important to remember that this is not about you. Do not take it personally. As soon as you take on the mantle, you will be blamed for acts for which you have no actual responsibility. But at the same time, do not be too defensive. The United States IS responsible for those acts and you must "own" the fact that you are the face of the federal government in Indian country. The Assistant Secretary's job is to accept blame with grace and humor and take quiet reward in the improvements that only you can fully understand that you have accomplished. Remember that thousands of federal employees in the BIA, BIE and IHS hear complaints like these on a regular basis. They have one of the most difficult jobs in government. They may spend a career hearing these complaints; for you it is only temporary.
It is easy to define an agenda but difficult to remain true to it. Poverty and tragedy go hand in hand in Indian country. Nearly every day, somewhere in Indian country, a tragedy will strike that will demand (and deserve) your attention, and certainly the community’s and the media’s attention, diverting attention away from your long-term goals. You must address these matters, but you must always keep at least one hand on the bigger boulder that you’re pushing up the hill. Otherwise, you won't be successful in enacting your (the President's) agenda. And speaking of the hill, individual members of Congress also sometimes intrude on your agenda. Individual senators and representatives have little programmatic authority over the agency, but they do have the ability to focus attention on specific issues and thereby force these matters onto your agenda. (They do not necessarily share your big picture goals for Indian country).
Your power is often more soft and symbolic than real. On a daily basis, you will be asked to overturn a decision recently made by a staff out in the field, who is four to six links away from you in the chain of command on the organizational chart. It is folly to think, in most cases, that a person in Washington, without any context, should be second-guessing the career employee in Indian country whose job is to handle that task every day.
In many instances, the Assistant Secretary’s role is passive. For example, except in rare cases, Congress has not appropriated funds to purchase lands to be taken into trust, so the process generally requires tribal governments to purchase land in fee simple and then apply to have the land taken into trust. The power to recognize tribes is similar. Tribes must first apply and go through a rigorous vetting process that takes years.
Power in the federal government is widely dispersed and fragmented. As Assistant Secretary for Indian Affairs, you generally have substantial control over important policy questions, but not all of the important policy questions are squarely within your wheelhouse. Budgetary decisions, for example, are shared with the Secretary's Office and the OMB, and sometimes with other related agencies. For example, OMB may insist that agencies coordinate spending around related issues, or may insist that the federal government present a unified position on an issue. Other agencies tend to have their own agendas and policy goals. This compromise with others in the federal government is sometimes needed to accomplish objectives for Indian country.
Bandwidth is limited. There are far more good proposed initiatives for Indian country than staff to pursue them. The responsibility of the BIA runs from natural resources, water, agriculture, energy and dams, to roads and bridges, to social services, child welfare, education and law enforcement. The BIA, together with the staff at Indian education, must be an expert in virtually every issue in Indian country, except healthcare.
Often your job is to fight. Initiatives harmful to Indian country are often afoot. Powerful constituencies have important interests that often collide with the interests of tribes. Some of those bad initiatives will arise in Congress, but others will arise within the administration. Sometimes your most important job is to defeat these bad initiatives. Stopping harmful initiatives is not nearly as rewarding as accomplishing your positive agenda, but fighting for Indian country is your most important job, no matter whether you are playing offense or defense.
Let me offersome helpful tips: First, inertia is a powerful force in the federal government. It can be overcome only with the support of the dedicated career staff. Do not try to jam an initiative down their throats. That is not leadership; it is bullying. They can make you more successful, and if you can win their support, your initiative will result in a better product and career staff will fight to keep it after you are gone. On the other hand, if you use the "cram-down" approach, you will probably fail miserably. If you succeed, the success will last only until you are gone. And that may not be long. Remember that the longest tenure of any Assistant Secretary for Indian Affairs in the George W. Bush Administration was 18 months.
Second, many existing programs are ineffectual precisely because they are underfunded. Yet it is often easier to obtain funding for new initiatives than adequate funding for existing ones. Given frustration with the status quo, a new initiative, if well-thought-out and well-described, can win the battle for resources, even if it simply involves repackaging the status quo. If it drives resources to the problem, don't fight it. Use this tendency to Indian country's advantage.
Finally, your Clinton Era predecessor, Kevin Gover, is just across the mall and down the street at the Smithsonian. Gover is an invaluable resource for wisdom, commiseration and humor. He never failed to chuckle knowingly when I explained my latest predicament and often provided guidance based on what he did – right or wrong – in similar situations in the past.
In closing, let me tell you that it was an honor to serve as your predecessor. You have my heartfelt wishes for success. Indian country needs an Assistant Secretary for Indian Affairs who succeeds in pushing the federal government every day to meet its sacred trust responsibility to Indian nations. Take comfort in knowing that you will have prayers from across Indian country as you do this important work. Godspeed.
Kevin K. Washburn is a law professor who served as the Assistant Secretary for Indian Affairs at the Department of the Interior from 2012 until 2016.