When Kevin Washburn was a student at Yale Law School where he earned a Juris Doctor (JD) in 1993, he was editor-in-chief of the Yale Journal on Regulation, a student-edited law review covering regulatory and administrative law. Some 21 years later, he’s still involved with administrative law and regulations, albeit on a higher level. As the Interior Department’s Assistant Secretary – Indian Affairs (AS-IA), 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 country – the rules for federally recognizing an American Indian tribe.
In the two decades between earning his law degree and his Senate confirmation on September 21, 2012, Washburn, an enrolled member of the Chickasaw Nation who grew up in Oklahoma, racked up a wide range of public service legal experience in the courts, the federal government and the university.
Washburn was dean of the University of New Mexico School of Law from 2009 until his appointment as ASIA. He served as the Rosentiel Distinguished Professor of Law at the University of Arizona James E. Rogers College of Law from 2008 to 2009, and as an Associate Professor of Law at the University of Minnesota Law School from 2002 to 2008. From 2007 to 2008, Washburn was the Oneida Indian Nation Visiting Professor at Harvard Law School.
Washburn served as General Counsel for the National Indian Gaming Commission from 2000 to 2002, and as an Assistant United States Attorney in Albuquerque, New Mexico, from 1997 to 2000. He was a trial attorney in the Indian Resource Section of the U.S. Department of Justice from 1994 to 1997. From 1993 to 1994, he clerked for the Hon. William C. Canby Jr., of the U.S. Court of Appeals for the Ninth Circuit in Phoenix. He received the Environmental Protection Agency’s Bronze Medal for Commendable Service (2000) for his successful Clean Air Act litigation and Special Commendations for Outstanding Service from the Justice Department (1997, 1998).
One of the country’s top Indian law scholars, Washburn is a co-author and editor of the leading legal treatise in the field of Indian law, Cohen’s Handbook of Federal Indian Law (2012 edition) and has written dozens of scholarly papers available at the Social Science Research Network.
Washburn is married with two children.
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. For readability and clarity, we have chose not to identify individual speakers presenting comments and queries by the ICTMN panel.
In our first interview back in October 2012, you said you were skeptical about taking this job and you described it as “one of the hardest jobs in government.” Do you have any regrets that you took it and has it turned out to be one of the hardest jobs in government?
Well, I didn’t have much information to go on, but it certainly is a difficult job. It’s largely because of having to be an expert in everything all the time – just think of the range of the questions you’ll ask. Coming from an academic background, you’re not supposed to be opining about things if you're not an expert in that subject. Now I’m asked all kinds of questions that I know just a little bit about because I have to skim across the surface of so many subjects. So, honestly, sometimes what gets me smarter on an issue is when a reporter is asking questions because my first impression is, “I didn’t even know about that issue, let’s dig into it.” So you all play a role in educating me and every other decision-maker in Washington in that respect.
Thank you . . . You've been on the job two years now – is it becoming harder?
It’s a tough job. I think that I was at first overwhelmed and then I kind of thought I knew what I was doing, and now I really have a sense of it. But it’s brutal. Poverty is such an overarching problem and so is crime. The daily things that I learn about are just agonizing. Recently, a tribal council member came in from a reservation where six babies had been born in his district in the space of two weeks, all of whom had alcohol or drugs in their bloodstreams. So what that means – and now I know to think about what the broader question is – you have to find six different pairs of foster parents to take each one of those kids and we don’t have six healthy families that each can absorb an infant all in the space of a two-week period. And so daily, I hear about something fairly tragic that we aren’t addressing very well, and so those are the kinds of things that make it overwhelming.
What do you think the most important issues are?
It’ll be easier for me to answer that question after I've been six or 12 months out of the job when I’ll have a little bit of distance from it. Right now it seems like we run from one crisis to the next and we’re so understaffed and overloaded and have such a broad range of issues.
How do you feel personally when you hear about these six babies and how do you deal with it as the head of the BIA?
Well, most tribes deal with poverty and we've all come from those communities so we kind of have a sense of it. Just multiply it by 566 and you know how much we hear about and we learn about. I was joking with somebody at the State Department just recently: You know, the Secretary of State John Kerry has only 180-odd countries that he maintains relations with and I've got 566 nations and a much smaller budget and a much smaller staff and fewer offices and such. The guy that I was talking to said something like, ‘Well, we’re in the news every day, you know, Iraq and Afghanistan…’ No one pays attention to Indian country – that kind of attitude. But what we do affects a lot of people too. I didn’t take umbrage particularly. It just kind of saddened me a bit that we are somewhat invisible …
The issue where you mentioned the babies – you wonder what the real problem is. The immediate response is to ask, is it the poverty? Is it the people? But I have to wonder, if they're able to buy drugs and get drunk, there's money someplace. In your position with the overwhelming-sounding responsibilities you have, what do you think would most help you in doing what you're doing?
I’m a big believer in tribal self-determination and self-governance because I actually think most of the problems we are dealing with can’t be solved in Washington D.C. They have to be solved at the community level. And what it takes is good strong leaders stepping forward. Not every tribe is always well led. And certainly not over time. I’m Chickasaw and my governor’s been in place for a very long time and he’s a very motivated guy, Bill Anoatubby. [To Halbritter] You've had a long period of leadership. I know that kind of continuity is not always good because if you have someone that’s not strong and they're in there for a long time, well, that’s going to be a period of no progression or little progression, and sometimes even worse. But leadership in the community is where we’re going to solve these problems, and I can’t do much about that. I can provide support and that’s the best thing we can do. I do think that these contracts [contracts and funding to tribal governments to provide social services directly to their citizens rather than the federal government doing so] that we’re doing with tribes have built tribal capacity over the years dramatically. And so now there are professionals in tribal government that 30 years ago didn’t exist. And we all see corruption now and other problems but, frankly, we see corruption in state government and local government and city government – human institutions are going to have problems, every one of them.
What's the most fulfilling part of what you do and what's the most frustrating?
There's mostly frustration! I was talking to Al Franken (Sen. Al Franken D-MN) – he’s funny, he’s a great guy – and he said, “I thought when I got elected to the United States Senate I’d be all powerful.” But he said it’s frustrating how powerless you feel in the grand scheme of things because the bureaucracy is so slow-moving – you sprint 100 miles to move the federal government an inch. On the other hand, there’s a lot that is positive. Four times this calendar year, we have issued reservation proclamations, either creating a reservation or expanding a reservation. The Indian Reorganization Act of 1934 gave that power to the Secretary and it’s been delegated to me so I can actually create a reservation or expand a reservation, and that’s pretty neat. And you really do feel like you accomplished something – that’s a good day in the office. We've taken 264,000 acres into trust for tribes, which isn’t necessarily in a reservation but can be, and [to Halbritter] that’s not including your 13,000 acres [taken into trust for the Oneida Indian Nation, owner of ICTMN], which will put us over the 275,000 mark. So you've contributed to that. It’s a big achievement for all of us to get a lot more land – we are going to try to restore some of the hundreds of millions of acres of land that have been lost to Indian tribes, and that feels good too. In the grand scheme of things, 264,000 acres is over 300 square miles but given all that’s been lost, we’ve got a long way to go.
HALBRITTER: Well, it means a lot to us. We started at 32 and it marks the plot back to 1824. That’s not bad. It’s been a good year. [The restoration of Oneida land was part of a comprehensive settlement Halbritter negotiated with New York Gov. Andrew Cuomo over land, taxes, lawsuits and other conflicts that had festered for decades.]
That kind of success -- the tribe working together and finding a way to make peace with the state government – is really important and shows a lot can be accomplished through cooperation. I admire you tremendously for being able to accomplish that because there were so many moving parts. Those are the real successes in Indian country. We continue to fight because, if we don’t fight, then it won’t create space for states to need to get along with tribes. So we have to keep fighting and keep bringing cases and keep pushing the envelope.
What is your role in relationship to states, if any?
The relationship tribes have with the federal government is supreme and we generally believe that’s the most important relationship, and it often preempts anything that the state is interested in with regard to Indian reservations—but not always For example, the Indian Gaming Regulatory Act requires tribes and states to negotiate about Class III gaming. So there are a lot of exceptions to the general principle that it’s a federal-tribal relationship. As a practical, pragmatic, political fact, though, tribes have to deal with states and they don’t always get along, and sometimes they won’t get along. Even in the best of relationships, there are going to be disagreements. In the worst case, they disagree about virtually everything and sometimes irrationally so. States, I think, see tribes as an inconvenience.
Is there any role for the agency and if any, what might it be?
Occasionally. We have a case going in the State of Maine on behalf of the Penobscot Nation against the State of Maine. That’s probably the most formal – when we actually bring a case. That’s a big deal for the United States – dozens of people and different agencies have to sign off on it for something like that to happen. In the less formal realm, sometimes states ask to come in and meet with us. We always take meetings with tribal leaders. We usually take meetings with state leaders -- we don’t have a trust responsibility to states, but they are constituents. We sometimes find ourselves sort of in the middle between states and tribes, but we are in Washington D.C. and so we are fairly removed.
How much weight does the agency give to the trust responsibility versus the responsibility to states as your constituents?
The trust responsibility is sacred and it should be our highest responsibility—but we are a unit of the federal government, too, and we have constituents just because of that. Every taxpayer in theory is, to some degree, a constituent whom we serve.
Let’s talk about consultations. Some tribes are still complaining that it’s not enough just to consult because no means no, but sometimes the federal government goes ahead with whatever it is even if a tribe says no.
Well, I think the rape analogy is kind of unfair in that question. So let me just say consultation is slightly different than absolute consent. Consultation does not equal consent. The idea I frequently raise with people and tribes is that sometimes tribes want to stop whatever action the federal government is contemplating. Consultation sometimes produces that result but sometimes it just makes the federal government do something differently or better so that the outcome is better for the tribe. And keep in mind that there's more than one voice even from tribes on some of these issues.
How much of the UN Declaration on the Rights of Indigenous People do you take into consideration?
My view is that the President’s consultation policy is primarily how we have implemented the Declaration, at least the free, prior and informed consent clause in the Declaration. We've really moved to a place where we do require tribal consent before we do a lot of things. I’m not sure we’re exactly where tribes want us to be, but tribal consent is more important than ever, and lack of tribal consent can block a lot more governmental actions than it ever could in the past.
But are the other departments adhering to that?
We've actually institutionalized it to a great degree. So for example, in leasing trust land on Indian reservations, tribes now can run that whole process through the HEARTH Act and so they get to be the ones to approve a lease, not the federal government. So in some ways, we’ve built free, prior and informed consent into the law. One of the things I think is most difficult involves sacred places that are no longer on an Indian reservation. They're certainly within territory that a tribe cares about and they may have once been within the tribe’s formal reservation but then when the tribal land base had shrunk, it’s no longer there.
But it’s still sacred.
It is still sacred; that’s absolutely right, and so it’s harder to find absolute protections in those spaces where it’s no longer formally the tribe’s land.
The Washington Post came out with a piece recently about non-Native people claiming to be Native American between one census and the next. How does that impact your office particularly in terms of allocations?
You have to remember we use the identity of enrolled tribal members versus self-identifying, which is what the census does. So to me, there's relatively little that actually turns on what the census says, formally. One of the changes that we've not come fully to grips with is the urban Indian population, which is huge. We don’t have much of a role for urban Indians because our whole worldview is so based on reservations and that's where the BIA provides services. I wouldn’t say that we don’t have a trust responsibility to urban Indians but that trust responsibility is so tied into Indian reservations and trust land and the people that are enrolled and/or living on the reservation.
How do you see your agency evolving knowing that more than 70 percent of Native Americans now do live in cities?
My dream is that it’ll be a tiny little agency at some point. It’ll have big money attached to it but it’ll be small in terms of the number of employees and it will be a pass-through funding agency. We are most successful when we contract with tribes to provide services. So if someday we’re a tiny agency with a lot of money flowing through us because we've contracted with tribes to provide all the services that we provide, I think that that would be a great day. And so then the question to tribal governments would be – and I think this is the way it ought to be – What are you doing about your urban population? It’s your responsibility.
Let’s get back to consultations and other departments for a moment. How many of those departments are abiding by the consultation order, do you know?
Well … so, you mean you want me to drop a dime on my colleagues at other agencies? [LAUGHS] But that’s your job! You in the media should be holding them accountable …
Well, how long are you going to be there for?
So let me say this: I think it’s improved dramatically. This is actually an important point. I worked in the Clinton administration as the general counsel of the National Indian Gaming Commission. At that time there was a White House official who had the Indian portfolio and she was terrific. Her name was Lynn Cutler. She had all the tribal stuff and it was about 10 percent of her portfolio. In the Obama administration, we've had two full-time employees at the White House – at the White House – doing this work, and one of the early outcomes of that was the President saying, “Look, every agency needs to develop a consultation policy” and doing an order to that effect. And that really changed the tone of things because every agency is now required to do that and develop those policies, and most of them have done it and most of them have done a really good job of following their policy. They're learning. And one of the best is the Justice Department. They have done an amazing job in this administration of really changing the way they do business and listening to tribes much better. If there are agencies that aren’t living up to that, those agencies should be held accountable and you in the media should be writing stories about them. Also, you know, the President has had a Tribal Nations Conference every year where he’s invited all the tribal leaders to Washington. That’s precedent setting. That’s a big deal and that’s really made a difference. And then this White House Native American Affairs Council, which has been drawing a lot of attention. Cabinet secretaries have actually been coming to these meetings and that educates and engages them. They're going to spend an hour talking about Indian tribes; they're going to spend time preparing for that and their staff is going to spend time preparing for that and it’s going to elevate the issue in the entire agency. So that’s been another accomplishment of this administration that I think is just elevating our issues so much.
How often do you meet with the White House to discuss Indian issues?
A lot. The President went to Standing Rock in June and that was really interesting because he came back even more interested in Indian country than when he left. He’s always been very intellectually committed to our issues but he came back emotionally committed to our issues at a pretty deep level, because he was there. It was really moving for him. And when the President gets emotionally committed to issues, suddenly a lot more people over at the White House are interested. So the White House has been almost unbearable lately because of the number of people that want to help me do my job, God bless them! It feels like a cast of thousands. [LAUGHS]
You may be the only AS-IA to ever say that.
I know, isn’t that a blessing? I mean, think about that. It’s such a great thing. … So another interesting thing is we had a historic meeting last week with the Office of Management and Budget (OMB). One of the things they do every year is prepare the President’s Budget recommendations to Congress, and that’s a big deal. The President’s Budget -- the Green Book, it’s called. Well, there are Indian programs in many different agencies and we never talk to one another and so [Interior Secretary] Sally Jewell said, ‘You guys at OMB need to convene all these Cabinet-level agencies and have them talk; let’s all talk to one another.’ They'd never done that before, believe it or not. So we’re in that budget formulation process for the FY 2016 budget that would take effect next October, if it passes. And we had a meeting led by OMB with PAS (Presidential Appointee/Senate Approved) officials like myself from each of these six agencies or so. Honestly, it was not terribly productive because changing things in the federal government is so hard, but it was a good first start. Just getting together and having the conversation as you're formulating the federal budget is keenly important. And if the President hadn’t gone to Indian country and Sally Jewell hadn’t recommended this, it might not have happened. Suddenly OMB is being much more responsive, I think, because they work directly for the President and they know the President’s interested. That kind of attention gets a lot of people more interested. So we’re not that sleepy little agency that we were four months ago because suddenly everybody’s wanting to know what they can do to help.
And it should help your budget?
We hope so. We’re doing a lot of work around reforming the Bureau of Indian Education (BIE) and a lot of this stuff is part of the Native Youth Initiative of the President. And so our portion of that is trying to do better in educating our children in the BIE.
If the GOP gains control over both branches of Congress, what will that mean in terms of your work? Do you anticipate that the Republicans would want to make your job any more difficult?
Well, the politic thing to say is Indian Affairs can be very bipartisan and often is, and we've got some real leaders on the Republican side of the Congress that have been very good on Indian issues. Tom Cole, for example. That’s all wonderful and good developments in Indian Affairs can continue to happen even if the Republicans are in charge of both the House and the Senate. Personally, I know that the scrutiny will increase even more if we are subject to Republican leadership in the Senate as well as the House. My fear is that if the majorities on the committees are Republican in the House and Senate, they’ll try to outdo themselves in who can cause greater scrutiny of the administration. Scrutiny is not a bad thing. We shouldn’t run from scrutiny, but it takes time and resources to respond to document requests and hearings and such. When you're responding to subpoenas, when you have to be so careful about everything you say because it can be or will be manipulated to be taken the wrong way – that also really interferes with transparency.
But you're not so cautious about what you say.
I’m not, I’m not – and I’ve long said that’ll be the end of me, that one day I’ll have to leave this job [because of it] . …
So to ease up a little bit and to decompress, do you skydive or scuba dive or …?
No, neither one. The thing I do to keep the stress down is I’m a runner. I’m fairly consistent, I try to run every other day.
What do you want your legacy to be?
Well, I haven’t thought about that particular question at all, but I’ve thought a lot about the President’s legacy. I think the President’s legacy is really a good one and we are coming through this home stretch here these last two years. The President’s legacy I think is a much more productive, constructive relationship with Indian country, for all the things that I’ve talked about before, the vastly improved consultation, the vastly improved staffing on Indian issues, the settlement of all these cases so that we’re not fighting tribes. Those are some of the really big legacies. I’d say his administration restored the trust to some degree. I’m not sure there ever was any trust between tribes and the federal government but it’s gone a long way to improving the trust between the federal government and Indian country and making sure that the federal government is working really hard to try to serve the trust responsibility and Indian tribes. So I think that that’s one of the biggest legacies of the administration. The things that’ll last forever are these reservation proclamations, the land that we’ve taken into trust – only Congress can take land out of trust once we've taken it into trust. So the land goes into a lockbox once we take it into trust – it can’t be sold, counties can’t tax it, it can’t go into a tax sale. It’s the tribe’s forever. So that is probably one of the most important legacies because it’s one that truly will last forever. But we’re focusing on the things that we want to really consolidate and make sure they go forward even after we’re gone. And so the President created the Native American Affairs Council in an Executive Order, so the next president doesn’t have to have the Native American Affairs Council but he will have to undo this President’s Executive Order to get rid of it – and that’s the same for the Tribal Nations Conferences. So that's now an expectation of Indian country that is sort of set into cement – and the next President will be expected to meet with Indian Country once a year as well.