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BIA Head Kevin Washburn Speaks to ICTMN About Bay Mills and the Need to Resolve Water Rights

The following is part 3 of an interview with Assistant Secretary – Indian Affairs Kevin K. Washburn while he was in New York City in September.

Interior Secretary – Indian Affairs Kevin K. Washburn was in New York City in September as the historic Peoples’ Climate March and the United Nations General Assembly opened its 69th regular session with the first World Conference on Indigenous Peoples, where he added to our excitement here at ICTMN by taking a few hours to sit with us for an interview.

Washburn holds the government’s top administrative position dealing with federal Indian law and right now he’s in the midst of reforming the most controversial regulations in Indian county – the rules for federally recognizing an American Indian tribe.

The following is part 3 of that interview. For readability and clarity, we have chosen not to identify individual speakers presenting comments and queries by the ICTMN panel.

Last time we talked, we asked you about the Bay Mills case, but it was still pending in front of the Supreme Court and you couldn’t say much. What do you think of the Supreme Court decision and in the long term do you think it was ultimately good or bad for Indian country? [In the Bay Mills case, the high court ruled that the state of Michigan was barred by tribal sovereignty from suing the Bay Mills Indian Community over an off-reservation casino it had opened.]

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Let me share just a little background on that decision. I heard a lawyer describe the Bay Mills litigation the other day with an anecdote. He said, ‘You know, when I was a kid, some friends and I found a World War II grenade. And we decided we were going to blow it up. So we pulled the pin and we threw it. Nothing happened. It was a dud.’ Fortunately, no one was hurt, and I think that a lot of Indian country feels that way about the Bay Mills decision. The Bay Mills Tribe took a risk with sovereign immunity – and fortunately, no one was hurt. Justice Elena Kagan wrote the decision and it was a 5 to 4 decision in favor of tribal sovereignty.

Justice Kagan has exposure to Indian law because of her time as Dean of Harvard Law School. I know that she had several opportunities to interact with Indian law scholars and give speeches around events related to Indian law because of the Oneida Nation’s endowed Indian law chair. That had a subtle, but important impact in educating her, I’m sure. Some of the Justices on the Supreme Court don’t know anything about Indian tribes except what they read in briefs. She’s had more experience because of her time at Harvard. So that shows the importance of the Oneida Chair. I feel like we dodged a bullet in the Bay Mills case. The Supreme Court did the right thing and recognized the existence and importance of sovereign immunity, so that’s a good thing. But it makes me nervous to keep testing the limits of tribal sovereignty in this Supreme Court. Sometimes we will lose, as in Carcieri, Patchak, and the tragic Baby Girl case.

The majority on the opposing side relied on the idea of the Doctrine of Discovery to support their position. It’s not that Bay Mills won; it’s what it cost – which was another affirmation from the Supreme Court that this thing called Doctrine of Discovery is still in play and still determines our relationships. And everybody knows it’s rubbish. It’s outdated, it’s racist, it’s everything negative, but courts still rely on it. Do you have an opinion on that?

Well, I’m a real pragmatic person. My position demands it. We should try to improve the world and legal jurisprudence, and we have to be opportunistic. Now and then we get lucky. While I was a law professor, I mostly worked on criminal justice issues and I always thought, like most Indian law scholars, that the Oliphant decision was terrible. [Oliphant v. Suquamish Tribe in which the high court ruled that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.] However, I didn’t spend time writing Law Review articles saying that we should overturn Oliphant and restore tribal authority over non-Indians because I thought that was a bridge too far. I just didn’t think that would happen in my lifetime – kind of like an African-American being elected president of the United States. I was much more pragmatic. A lot of my scholarship was oriented toward restoring felony jurisdiction to tribes over their own people first. My belief was that, once we have successfully obtained felony jurisdiction over our own members, and shown that we can exercise it responsibly, then we’ll have a much stronger argument that we can exercise jurisdiction over others. So, I was kind of the modest guy and, lo and behold, a short time later the Tribal Law and Order Act passed, which gave tribes felony jurisdiction over their own members. I was very happy, but I thought that it would be years before we would proceed to that next step to unwinding Oliphant. But in 2013, we got the Violence Against Women Act Reauthorization, which is an Oliphant fix and extends jurisdiction over non-Indians. It’s just mind-boggling sometimes how fast things can change. It’s very heartening when that kind of thing happens. So I try not to be too cynical. I also realize that I can’t predict things very well. I am grateful that we have advocates who “think big” and don’t get weighed down by cynicism.

How do you remain non-cynical?

Oh, I’m very cynical! [LAUGHS]

He’s cynical. We want transparency back! [LAUGHS]

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You were at the Department of Justice back in the day and you successfully argued the case of Montana v. EPA in which the Ninth Circuit upheld the EPA decision to recognize the Confederated Salish and Kootenai Tribes as a state for the purposes of setting water quality standards under the Clean Water Act. EPA just gave the same sort of status to the Wind River Reservation under the Clean Air Act to monitor air quality in a really large area, off the reservation too. How did you feel about that knowing that your case back in the Nineties set that precedent?

Well, it was good. It was great. Just the other day I learned that a lot of tribes have traveled this path – getting “treatment as a state” status under the Clean Water Act, the Clean Air Act and other provisions of the environmental laws. It turns out that dozens and dozens of tribes now have “treatment as a state” status for one or more of the environmental statutes. Over time a bunch of tribes now have environmental programs and they’ve been smart about it. My expertise on this subject ended with that case in about 1998 but I am pleased that it’s progressed so dramatically.

Last year, you mentioned that around 15 lawsuits had been filed challenging land-into-trust decisions based on the Carcieri ruling [the 2009 Supreme Court ruling that said the Interior Department secretary doesn’t have the authority to take land into trust for tribes not under federal jurisdiction in 1934 when the Indian Reorganization Act passed href=""]. Have any of those lawsuits moved forward and have there been any new ones challenging the administrative solutions that you've been using?

I don’t think we've had a challenge to our Patchak Patch. Litigation is sometimes like watching paint dry. It often moves very, very slowly and there haven’t been any dramatic developments in any of those cases. What's happening is there are certain communities in the United States – Oneida, Wisconsin, is one of them – where controversy erupts if we take land into trust for a tribe. In some places, a city, county or state may sue us, whether it’s a sensible suit or not. In some cases, it may simply be reactionary. And there are a few tribes that are struggling with that kind of relationship with the county or city in which they sit. The Interior Board of Indian Appeals (IBIA), our internal administrative courts process, has several cases pending. Then there are cases where it’s not so reactionary; they’ve got a particular legal theory or something that gives them a specific concern and some of these may be legitimate. There's a range of reasons, but there are certainly a lot of cases, a lot of challenges to land-into-trust decisions in some communities, and those are being litigated. The Big Lagoon case was argued out in the Ninth Circuit en banc and that case may very well shed light on some of the issues with regard to Carcieri. [In Big Lagoon Rancheria v. State of California, the district court ruled that the state violated the Indian Gaming Regulatory Actby failing to negotiate in good faith for a tribal-state gaming compact with Big Lagoon Rancheria. A three-judge panel of the 9th Circuit Court of Appeals reversed the lower court decision, the tribe asked for and received a re-hearing in front of the full or en banc court and now awaits its ruling.]

How much of your time is spent addressing those unresolved trust issues?

I view my entire job as basically making sure we live up to our trust responsibilities. I always characterize resolving trust issues as mistake correction. We have a lot of different trust initiatives, such as the buyback program where we’re trying to buy back fractionated interests. That’s been a big part of the job. We’ve been focusing on that quite a bit. Another untold story is trust litigation settlements with tribes. We started with Cobell – and Cobell got a lot of attention – but we have now settled more than 80 lawsuits with Indian tribes, and the money that's been involved in those settlements is well in excess of $2 billion. That’s money going into Indian country to tribes for settlement of litigation. Settlement has changed the whole dynamic. When I talk to my colleagues who were at the Department in the past, both during the previous administration, George W. Bush, and even in the Clinton administration, there seems to have been a bunker mentality in some respects: They were trying to serve Indians, and at the same time, litigating against them. That’s really an impossible way to do the job. And for 15 years with Cobell, and all these other tribal cases too, we’ve had that kind of situation. Interior was in an untenable position. It’s a big deal that we settled Cobell and 80 trust litigation cases. We've also completed several huge water rights settlements. All told, adding together the Cobell settlement, the 80-plus tribal trust settlements, and the approved water rights settlements, this will end up bringing more than $8 billion into Indian country over time. So that's a big deal.

That is a big deal.

This amount is nearly three times my annual budget. It is a lot of money.

Not chump change! Another trust reform question. The Trust Reform Commission filed its report last December and there were all kinds of recommendations. Are they being implemented?

Some of them are. They’ve ranged in scope from kind of very practical and narrow to extremely ambitious. One of the recommendations was to do away with my position and create a commission kind of like the Federal Energy Regulatory Commission to run Indian Affairs. That’s probably the most ambitious thing they recommended. I’m not sure there's a whole lot of “buy-in” for that view.

Do you buy in to it?

No, I don’t, really. I’m not sure what the proper structure is, and those are important questions. But I don’t think that view has gotten a lot of traction. One of the things Secretary Jewell has done is issue a Secretarial Order saying that the whole department – the Bureau of Land Management, Bureau of Reclamation, Fish and Wildlife Service, National Parks Service, all of these agencies and others – have a trust responsibility to tribes. One of the things that the Trust Reform Commission reminded us was that every agency in the federal government has a trust responsibility. And so the Secretarial Order is one of the things that Secretary Jewell has done to implement their recommendations. The Alaska Land-into-Trust Rule [to accept land into trust applications] is another recommendation that we are actively working on. The Trust Reform Commission also had some practical suggestions when it came to appraising Indian reservations for the buyback program and land consolidation purposes. One was to use mass appraisals – this is very technical and not very interesting but we are doing that. So there are a number of recommendations that are in process, and I’m sure that there are more in the report that may eventually be implemented. We’re just taking each one in its own time.

Is the administration moving forward with any Tribal Law and Order Commission recommendations that don’t require congressional approval?

Yes. I would say, again, that Alaska Land-into-Trust is one of those. The Tribal Law and Order Commission also recommended that we take land into trust. You know, I don’t have a complete answer to this question because I just don’t compartmentalize things that way. I haven’t done the research to see which of these were specifically related to the Indian Law and Order Commission. But we have more than 15 tribes ready to come online in March of 2015 with the Violence Against Women Act (VAWA) [provision that gives tribes felony jurisdiction over anyone – Indian and non-Indian – who commits a violent crime against a woman on Indian land]. So that’s happening. Some tribes have already started exercising that authority. I believe Tulalip is one of them, Pascua Yaqui in Southern Arizona, and Umatilla.

The Penobscot Nation wanted to implement VAWA but the state stopped it. How does that work?

This is an issue that’s come up over and over and it involves a small number of tribes that have so-called “restrictive settlement agreements” with states. For some of them, they were recognized by Congress in a manner that may have limited some of their authorities. That’s arguably the challenge that the Maine tribes have with the state – the question is, “what's the scope of their authority?” Also, some statutes like the Tribal Law and Order Act and the VAWA Reauthorization don’t necessarily immediately affect all tribes because many tribes are located in Public Law 280 states where the state’s been handling criminal prosecutions. [Public Law 280 is a federal statute enacted by Congress in 1953 that gave some states criminal and civil jurisdiction in cases involving Indians as litigants on reservation land. Before Public Law 280 was passed, these cases were handled in tribal and/or federal court.] It doesn’t necessarily mean that jurisdiction can’t be a tribal function in those states but tribal leaders haven’t necessarily been pounding the table asking for felony jurisdiction. It’s not something to appeal to voters: “I want to put more of my people in jail.”

Speaking of Penobscot, some people say their lawsuit against the state which the federal government has joined in support of the Nation’s fishing and hunting rights, is like the east coast version of the Boldt decision [Treaty rights activists won a legal victory in 1974 when U.S. District Judge George Boldt affirmed the northwest tribes' treaty-protected fishing rights – and the federal government’s obligation to honor them – and established the tribes as natural resources co-managers with the State of Washington. The Boldt decision was later upheld by the Supreme Court]. Do you give it that much weight?

With the weight of history, looking back, the Boldt decision clearly is a hugely important decision. To the Penobscot this lawsuit is as important as the Boldt decision, I would say. The Boldt decision was important because it transcended just the one tribe and because it meant something about treaties. It was at a time when that issue nationally loomed large , even in the Midwest and the Northwest. So Penobscot’s case is an important one, but only time will tell whether it has the same sort of broad impact as the Boldt decision.

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Six tribes in California have declared water emergencies. Yocha Dehe, lots of money, no water. They're having to ship in water. Some people are saying when you look at the dams in Las Vegas, the whole West is in trouble. Is there anything being done for tribes to assert Winters doctrine? Some people are saying the Winters doctrine of Indian first reserved water rights doesn’t even matter any more if you look at everybody fighting over the Colorado River. [The federal Winters doctrine of reserved water rights was established by the U.S. Supreme Court in 1908 in Winters v. United States, which found that when the federal government created Indian reservations, Indian water rights were reserved in sufficient quantity to meet the purposes for which the reservation was established.]

This is probably one of my greatest disappointments about all of our work. We've done a pretty good job around land—and land rights are important—but water rights are in some places equally as important.

Water is life.

That’s right. And often Indian treaties did a wonderful job of spelling out what tribes’ land rights were in “metes and bounds,” in other words, in legal descriptions. Those are spelled out right there in the treaties. The problem is we know that the treaties also secured water rights but the water rights weren’t set out with legal descriptions in metes and bounds. The water rights were left unquantified. Tribes have some right to some water and we know that they often have the highest priority, that is the oldest priority, but we don’t know how much water it is. We have not quantified those water rights. And so there are tribes that have huge water rights that aren’t quantified, so they cannot use them. Navajo’s one of them. What happens is non-Indians end up using that water for free—or, I should say, anybody uses that water for free because it’s not quantified and designated as the tribe’s water. That is one of the greatest tragedies because the value of that water nowadays is in the millions of dollars. And that's just if you choose to sell it! The Winters case was decided in the early 1900s. We haven’t done very much in the last 100 years to quantify all of those water rights.

One of the best things we can do to help tribes, Western tribes primarily – is to quantify their water rights so that they can use them and/or market them. It’s in a lot of people’s interests for us not to do that because other people are getting, you know, free water or water at a reduced cost because it’s not locked up in the tribes’ ownership. So, we are looking at ways to try to deal with that. One of the things that’s happened during this Administration is settlement of huge water rights claims. For example, we had the $600 million settlement for Crow. The problem with trying to fund a $600 million water rights settlement is that this is so out of the ordinary in routine budgeting.

The settlements come sporadically – suddenly Congress will enact several very expensive water rights settlements and so we have to figure out ways to fund them. The funding for water rights settlements goes like this [makes a roller coaster motion with hand]. They get funded over time. If we do a $600 million water rights settlement with Crow, it will be funded for the next 15 or 20 years usually. But you've still got to find that money and it’s important not to take it out of the general Indian Affairs budget that is being used to serve all tribes. We don’t want that—we don’t want to take it out of there to pay for one tribe’s water rights. But we certainly need to fund water rights settlements. There is some thinking happening in the Department about it. How do we create a funding stream that’s flat across time, grows, and can fund water rights settlements? That’s one way to get Indian water rights settled – to create a fund of money for settlements. And what else do we need? Do we need to increase the staff of our Indian Water Rights Settlement Office? Do we need to find a better funding stream for this? Stay tuned—I think we will address some of these issues somehow in the President’s Budget requests for 2016, which will come out in February. That’s where we do our thinking about big picture ideas, especially expensive ones.

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