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Kevin Washburn Leaving BIA in January

U.S. Interior Secretary Sally Jewell announced today that Assistant Secretary – Indian Affairs Kevin K. Washburn will step down in January.
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U.S. Interior Secretary Sally Jewell announced today that Assistant Secretary – Indian Affairs Kevin K. Washburn will step down in January. In an exclusive interview with ICTMN, Washburn said of his tenure, “The [federal] commitment to Indian country has never been higher in my lifetime. President Obama’s leadership has dramatically expanded tribal sovereignty and it’s been an honor to be here during that time.”

An enrolled member of the Chickasaw Nation in Oklahoma, Washburn has served as the Bureau of Indian Affairs head since September 2012, making his the longest term since Ada Deer left the position in 1997. Principal Deputy Assistant Secretary Lawrence “Larry” Roberts will lead Indian Affairs for the rest of the Obama administration.

Of the changes made during his tenure that will have the longest-lasting impact in Indian country, Washburn highlighted a greater commitment on the part of the federal government to tribal self-governance, support for economic development on tribal lands and changes to the Indian Child Welfare Act.

“For years, the federal government has been generally supportive of the idea of tribal self-determination and tribal self-governance. What that means is that we contract with the tribes to meet the federal trust responsibility rather than having it provided by federal employees.

“But we’ve never given proper resources to that. One of the great things that we’ve changed is that we now are fully funding these tribal contracts and going forward we’ve asked Congress for mandatory funding [for the contracts]. That means much greater support for tribal self-determination and tribal self-governance,” said Washburn.

“Another big ticket item is economic development. One of the great obstacles to economic development in Indian country is the fact that states could tax activities on Indian reservations in some circumstances. We have gone through our regulations, our leasing regulations, our right-of-way regulations and we’re even starting to apply the HEARTH Act in a way that preempts state taxation so the tribal tax opportunities are not crowded out and tribes will have a much greater tax base,” he explained.

“We’ve also made great strides in the Indian Child Welfare Act. The most important part of the Indian community is our children, and we’ve got to keep them. The ICWA has not lived up to its promise, so we’ve been looking at ways to improve that. We updated guidelines that needed to be updated and we’re looking at the rules for implementing the law.”

Another area where Washburn sees progress is in education. “We’re in the midst of a tremendous transformation of Indian education and we’ve needed that transformation for many decades. We still have a ways to go to be fully successful but we have great plans and we’re working with tribes to implement these plans. We really think we can make a difference there. By the end of this administration we should be able to have most of that accomplished.”

Washburn said the BIA had been heavily involved in the discussions and negotiations for the reauthorization of the Elementary and Secondary Education Act (Every Student Succeeds Act of 2015), which President Obama signed into law today. “So much of the time when these bills go through Congress no one thinks about the tribal angle. We have been very engaged in that. One of the things we wanted to make sure was that it’s no worse for tribes than the previous regime. We saw earlier drafts of the bill where they’d just sort of forgotten about the very good things that were in the old bill for tribes, such as flexibility. So we’ve worked to make sure this bill is protective of that.

“We know that Indian communities are not going to be supportive of their schools if those schools are lacking tribal language and tribal culture, so we need to have the ability to infuse those schools with language and cultures to draw the community to those schools to support them. In the final version of the bill those things are considered and the tribes have the flexibility they need to do those things. I think this new bill is going to be good for Indian country, at least from that perspective,” said Washburn.

Change, however, has not necessarily come easily. “We dramatically improved the department’s ability to acknowledge tribes, but we’ll have to see if that takes hold. Congress is denying it. Some conservative members of Congress are opposed to tribal sovereignty and to taking land into trust and opposed to the recognition of tribes, so we’re seeing a backlash against some of our accomplishments, but that’s to be expected when you achieve [so much] for Indian country,” Washburn said.

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The backlash in Congress concerns Washburn. “There have been some people really opposed to the department taking land into trust for tribes. The Obama administration has taken more than 300,000 acres into trust and are on the precipice of 400,000 acres soon. Some very conservative members of Congress are mad about that. So some of our challenges going forward are political. We’ve got a lot more good to do. I’ve been very involved in the conversations about what we’re going to try to accomplish for the last 13 months of the administration,” he said. Among the priorities are safekeeping the updated federal acknowledgment process, moving forward on the BIE transformation, finalizing right of way regulations, meeting the departmental goal of restoring 500,000 acres of tribal homelands, further updating the ICWA regulations so they work better for Indian children and families and upholding trust and treaty obligations with self-determination and self-governance at the core of every decision.

Another thing that troubles Washburn is the Dollar General case now before the Supreme Court. “After seeing the oral arguments transcript, it’s troubling. Indian country always feels it’s two steps forward and one step back and I think they feel very, very strongly about the [advances made by the] Obama administration. But the courts are more of a challenge for tribes. On balance, tribes do well at the policy-making areas of the federal government and less so in the courts,” he said.

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Nonetheless, Indian country is far better off now than it was when President Obama took office, said Washburn. “When President Obama took office there was not a single tribe that had felony jurisdiction over its own people. That was corrected in the Tribal Law and Order Act of 2010. When he took office there was not a single tribe in the country that had jurisdiction over non-Indians. That was addressed in the VAWA reauthorization of 2013.”

Washburn also mentioned the success this administration has had in eliminating litigation between the tribes and the federal government. “We’ve settled a lot of past cases--the Cobell case and dozens of other lawsuits. You can’t be litigating against people and trying to serve them at the same time and the Obama administration realized that. We’ve since settled 83 different cases claiming breaches of trust. We have resolved the contract support cost litigation, the Ramah litigation and a lot of other past disputes.”

Washburn said the relationship between the tribes and the federal government has changed fundamentally during the Obama administration. “The tribes now believe to a great degree that they can trust the federal government, and certainly the Obama administration.” The future now holds the promise that the tribes and the government can move forward as partners in the creation of policy for Indian country, he said.

Washburn himself will be moving to join his family in Albuquerque where he plans to teach and write at the University of New Mexico School of Law.

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