Kevin Washburn Interior Department’s Assistant Secretary – Indian Affairs (AS-IA), 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 country – the rules for federally recognizing an American Indian tribe.
In September during what will no doubt turn out to be the most exciting days of the year in New York City when an estimated 400,000 people gathered for the historic Peoples’ Climate March and the United Nations General Assembly opened its 69th regular session with the first World Conference on Indigenous Peoples, Washburn added to our excitement here at ICTMN by taking a few hours to sit with us for an interview.
ICTMN's panel consisted of Ray Halbritter, Publisher; Gale Courey Toensing, staff reporter as moderator; Ray Cook, Opinions Editor; Valerie Taliman, West Coast Editor; and Simon Moya-Smith, Correspondent. All participants asked questions at various points in the conversation (photographer Cliff Matias, a resident of Hawaii, chimed in at one point as well). Christopher Napolitano, Creative Director and Nedra Darling, director of Public Affairs for the Assistant Secretary – Indian Affairs were also present; Rob Capriccioso, DC Bureau Chief, who was unable to attend, provided questions in advance for Toensing to introduce.
The following is part 2 of that interview. For readability and clarity, we have chosen not to identify individual speakers presenting comments and queries by the ICTMN panel.
There’s been some criticism of NCAI (National Congress of American Indians) lately – that they play ball with the federal government too much, that when they knock on the door they get in before an individual tribe. Why does NCAI appear to play such a prominent role?
Well, they have a large presence in Washington D.C. They are constantly working to try to solve problems for Indian country and they do represent the largest group of tribes. One of the issues that we've been hearing is we've been doing so much tribal consultation tribes that tribes are talking about “consultation fatigue.” So we've tried to structure some of our consultations around when NCAI meets because a lot of the tribes are going to be there anyway—this way tribal leaders don’t have to buy an extra plane ticket or return again to D.C. Perhaps that helps NCAI; it may elevate the organization because we’re using their meeting for our own purposes. On the other hand, it might bring some people to D.C. who wouldn’t have come all that way just for a meeting. I realize that practicality sort of supports NCAI, but for us it’s a real handy way to reach a lot of tribal leaders. That said, although NCAI may “play ball” around process and cooperation, they are not afraid to criticize us and “play hard ball” with us when they disagree with our approach on an issue. More often than not, this causes us to reevaluate our position. It is a constructive relationship, like the one we have with a lot of tribal organizations, including the several regional tribal organizations.
The State of Hawaii just recognized 150,000 Native Hawaiians. There’s some thought that eventually down the road, they're going to start appealing for federal recognition. Are you prepared for that?
We've just finished a process where we went out and consulted with Native Hawaiians. The idea was to ask Native Hawaiians, ‘How can we help you?’ We actually consulted with American Indian tribes, too, because Native Hawaiians are not an “Indian nation” but they have some of the similarities of tribes. They have their own indigenous culture, their own indigenous language and they are indigenous people. So we went out, and we were roundly criticized for, basically asking the question, “How can we help here?” We are now reviewing comments provided to us during those consultations.
You said, ‘We’re from the government and we want to help you’?
That’s right. That’s exactly what happened. We’re still thinking about whether or how to move forward. We held these meetings on the islands and then we went around to consult with the tribes in the U.S. because they have some role to play here, too, at least if we are going to try to do something with regard to Native Hawaiians. We wanted to ask tribes how they felt about it because we have a trust responsibility to the Indian tribes. We also asked for written comments. The message in the public meetings, frankly, was a little different than the written comments, which are more across the range of discussion instead of focused [on just the nationalist view]. At the meetings there were some people that had strong viewpoints and made themselves heard and sort of frustrated anybody else’s ability to be heard. There is a number of vocal people that just want Hawaii returned. The stated position is basically: “The U.S. out of Hawaii.”
Right, that's the issue.
And I am pragmatic—my pragmatic side says I’m skeptical that such a thing would ever happen in my lifetime. So my thought is. ‘That’s interesting, but what else can we do to help you?’
But it wouldn’t be federal recognition.
No, I don’t think so, not really, not necessarily. They would not become the 567th Indian tribe; they would be something else, appropriate to their status and needs and the unique situation in Hawaii.
Can you say what the balance is? Is it 50/50 nationalist/pro-sovereignty versus domestic dependent nations? How are the comments going?
I don’t know. We haven’t finished going through the comments yet so I’m not sure. There's the complete range from “give Hawaii back” to “do nothing,” and there are people who have various views in between. We went out with an advance notice of proposed rule-making, so, if we proceed, the next step would be to do a notice of proposed rule-making. All of this to come up with some sort of proposed rule, and then that would be subject to all sorts of public comment, too. So there are many miles to go before we would ever actually develop any sort of formal process or action and I’m not sure whether we’re going to go to that next step or not.
I think for the first time this year the issue of non-federally recognized tribes was raised at the United Nations Committee on the Elimination of Racial Discrimination (CERD) hearings in Geneva a few months ago. One tribal leader testified that the label ‘unrecognized’ is discriminatory, that they’re left out and have no standing in the community. What are your thoughts on that?
I feel like we are spending so much of our time trying to address that problem. That’s what the [proposed revisions to the] federal recognition regulations are all about – creating a better system to ensure that tribes that deserve federal recognition are granted it if they seek it. One of our highest priorities is getting that issue straightened out. We’ve only recognized 17 tribes through the current process since 1978. And we have denied recognition to 34 groups. We continue to believe that it should be a very rigorous process. But it should be more efficient and more transparent.
That’s so few!
Yes. The media has reported 70 or 80 additional groups in California alone that are seeking recognition. And so some people say “the sky’s falling, there's going to be 80 more tribes and 80 more casinos” and that’s a pretty gross exaggeration, I think. We have not recognized a single tribe in California through this process, so none of the growth in Indian gaming there in the last 20 years has had anything to do with our formal recognition process. That said, we are considering the comments. We’re trying to get a handle on it. We’re trying to create a more efficient process because it is a matter of justice. Recognition is very, very important to those tribes that are seeking it and if they are legitimate, they deserve that recognition.
The proposed regulations include a third party veto provision which would allow third parties that were previously involved in litigation with tribes that were denied federal status to prevent those tribes from seeking recognition under the new rules. How much political pressure has been brought to bear on you, on your agency, regarding that provision? Because it wasn’t in the earlier draft proposal and we know about the pressure from Connecticut and the Connecticut delegation.
We get pressure from everybody all the time. We are a government so our job is to respond to the people; the way that happens is through pressure and political pressure. So I guess the question is how much inappropriate political pressure?
Yes, that’s the question.
I would say none. None. I haven’t felt any inappropriate political pressure.
We bring up Connecticut because of the history there with the Schaghticoke and the Eastern Pequots [whose final determinations for federal recognition were rescinded after an all-out campaign of political pressure on Interior Department decision-makers from the state’s elected officials and a powerful White House-connected lobbyist].
When you've finished the comment period for the proposed regulations on recognition, what’s the process? Do you read all the comments?
No, not necessarily. I don’t personally read every single comment. There are hundreds of them and we have excellent staff. Some of the comments are not constructive and more in the “crackpot” vein. So, first we weed those out. Staff tends to sort through a lot of this and we've gotten to be fairly scientific about how we go through the comments.
Talk us through the process.
We basically have a team that goes through them very carefully and group them into similar or related subject areas. We usually do it in a spreadsheet-type format with a general subject and then we’ll have the comments underneath it. Some of the comments dovetail. Nowadays what happens is there's a lot of “me-too” letters or some organized group like NCAI will say, ‘Here’s how we think it should be done, so please put this comment on your letterhead and send it in.’ So we get that sort of boilerplate comment sometimes. But we also get numerous unique comments, too, and so we try to gather them by subject in a very systematic way in a document. Then we go through and try to answer them or determine what wisdom they have to offer. I personally tend to look more at those summary documents rather than reading each individual comment. I just don’t have time to go through and read every single comment. Now and then, I will read a comment because it’s representative of what a lot of people are saying. Sometimes [the staff will] ask me to read the most relevant comments about a specific subject.
Okay, so there's a lot of opposition to the third-party veto.
There is. There is.
Major. And I didn’t read any comments supporting it other than from Connecticut.
So what do you do with that?
Well… the third-party veto. When we started this project, it wasn’t to reopen decisions that had already been made. That was not a goal. That was not anything that I even thought about. Most of the criticisms of the process that I’d heard had been about how long it takes and how inefficient it is. To be fair, a lot of people – a lot of U.S. Senators and others – said that the process was broken, but very few of them said exactly how. Again, when we embarked on this process, we weren’t trying to reopen petitions that had already been decided. We feel like we have a challenge ahead of us just to go through and decide on the rest of these petitioning groups seeking recognition because, honestly, getting all of them resolved is the goal, ultimately. So that said, we realized that if we end up substantively changing the rules, perhaps we should have some sort of mechanism for a group to say, ‘We were denied but under this new set of rules, we would be accepted.’ We thought there should be some modest exception or modest provision to reconsider tribes or groups that had been denied recognition in the past, just out of fairness. We put a very narrow proposal into the rule for doing that. We have looked at and will look at those comments. And, honestly, I have been surprised at the commenters views of Connecticut’s place in the world. To read the comments, one would think that this only has to do with Connecticut, this whole exercise. And it is much broader than that. Connecticut is a small state where these issues were resolved several years ago. And keep in mind, there are Indian reservations that are larger than Connecticut.
Narcissism jumps to mind.
There's a voice there and we’re listening to it, but the voices in Connecticut alone are not going to drive how this process works because this is a nationwide process and Connecticut is only one state. Originally, we did not view this process as relevant to Connecticut at all because these questions in Connecticut have long since been resolved, and again, we are not reforming the process in an effort to go back and reopen cases that are already resolved. This process is primarily about improving the process for dozens of groups that might proceed through it in the future. That is why we were surprised by so many loud voices from Connecticut.
But as far as all the tribes that have been denied, if they want to re-petition, there are provisions in the proposed regulations that would make it easier to weed them out up front before going through the whole recognition process – by checking their genealogy first, for instance. So that should make it easier to streamline the process.
Absolutely. And, honestly, I’m doubtful that many groups would deserve reconsideration under the proposed rule primarily because we’re really not changing the criteria very much. What we’re trying to do is revise the criteria so they're less vague and arbitrary than they used to be. As a practical matter, most of the new criteria would not be changes, but clarifications designed to provide greater transparency. The new proposed criteria were designed to match what we actually do in the ordinary course of reviewing petitions, but substantively they're not really changing the criteria very much.
There's one provision that would support some of the East Coast tribes and that is the provision that adds weight to tribes that have had state-recognized reservations since 1934 [when the Indian Reorganization Act was passed] or for whom the federal government has held land in trust since 1934. The tribes would still have to meet the seven mandatory criteria.] That’s good because there are state-recognized tribes with old, old reservations that go back to the 17th and the 18th centuries. Another question: You have gone a long way in creating transparency in your consultations and posting all this stuff online, and especially around the federal recognition issue. Do you think you've gone as far as you can with transparency or do you want to take it further?
That’s one of the hardest things about this job. Government lives in a glass box and that’s one of the things that makes the job really hard, but that’s the job. I think transparency is fundamentally important. So we do put the comments up on the website as they come in so that other people can see them. But that can have its own negative effects because some people don’t post their comments until the very end of the comment period because they don’t want other people taking shots at them – which kind of harms transparency. But I’m always open to suggestions about how to make it more transparent, because I think transparency is a fundamental responsibility of government. I think I’m lucky to be in the generation of people that grew up after the FOIA (Freedom of Information Act) had passed and we expect that everything is going to be subject to review. It is a daily fact of life for me. Every time I get in a taxicab, I think about the cost, because I know that there may be a congressional committee that wants to see my travel list. I assume that anything I do is subject to scrutiny.
You recently posted the Office of Federal Acknowledgment’s comments on the Pamunkey Tribe so that’s new too. And putting up the petitions for federal recognition will be awesome.
That makes the recognition process more transparent too. Meherrin Nation was the other one we posted comments for, if you want to take a look.
Another question regarding the federal recognition process: When you finish the comment period, if you make more changes, does the process go on to another public comment period?
In general, at this point, ordinarily, we would formulate the rule and publish it rather than doing another set of comments. If we were going to change the rule dramatically and we were unsure of the viability of the change then we might reopen another public comment period. But we have already been through comments on a “discussion draft” of the rule, and on a formal “proposed rule.” That means that we have provided a lot more process – and opportunity for public comment – than is routine. At some point, we need to bring the process to resolution.