Norton Speaks: Interior Secretary on tribal recognition, gaming regulation and the trust fund

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Secretary of the Interior Gale Norton gave an exclusive 75-minute interview to Indian Country Today Sept. 9 in her conference room. Attending were Gale Norton, Secretary of the Interior; Aurene M. Martin, Deputy Assistant Secretary for Indian Affairs; Eric Ruff, Assistant to the Secretary and Director of Communications; Daniel J. Dubray, Communications Director for the Office of the Assistant Secretary for Indian Affairs; two other Interior staff members including Norton's speech writer; and, from Indian Country Today, Tim Johnson, Executive Editor, and Jose Barreiro, Senior Editorial Advisor. The second portion of the transcript follows, including responses on tribal recognition, gaming regulation and the Trust Fund.

ICT: A number of Connecticut politicians are calling for an investigation of the BIA's tribal recognition process and a moratorium on further acknowledgements. This current administration recently approved recognition of the Historic Eastern Pequot tribe in southeastern Connecticut. Are you satisfied that the recognition process you have in place now is adequate?

NORTON: There might be some ways that the recognition process can be improved. Overall though I think it correctly focuses on the historical and objective information. I think it's a process that should determine what the facts are. I think that the current process of having an objective board look into the history of a particular tribe is generally the right approach. And so we have viewed the Branch of Acknowledgement and Recognition (BAR) as the right entity to be making those kinds of decisions.

ICT: The Wall Street Journal has published several editorials critical of the BIA's recognition process and early on in the Bush administration some rules were reopened or adjusted to give states and towns more input on tribal recognition and land-into-trust issues. Are those adjustments still intact?

NORTON: Those are two different issues. The recognition is separate from the land-into-trust issue. I think the recognition process should really be a determination of what the facts are. When you talk about land into trust or gaming, that gets you into the way in which tribes relate to the larger community. I would like to see tribes cooperate with the states and local governments as gaming decisions are made. I think that is much healthier. My experience in Colorado when I was Attorney General was in negotiating the gaming compacts with the Southern Utes and the Mountain Utes, and it took time for us to sit down and work out how the process should be handled. It was at the same time that the state of Colorado itself was beginning to have a gaming regulatory program. I think that by having the give and take that came through that process we built a stronger regulatory program. If gaming is going to be successful as an economic venture for tribes it needs to have credibility. If organized crime gets into Indian gaming then that can destroy Indian gaming. So I think you need to have a strong regulatory program to prevent that from happening. And that's true for gaming across the board whether it's Indian or non-Indian.

I think in terms of the locations of casinos, that's something where having good relationships between the tribes and their neighbors is very beneficial. And so I'd like to see that encouraged.

ICT: It is an important distinction. The question of whether a tribe sets up a gaming enterprise is a separate question from the question of recognition.

NORTON: That's right. I think those should be separate issues. I think there are some groups that may be motivated to seek recognition because of gaming that would not have been motivated in the past. But the decision making process on recognition is one that ought to be objective and not depend on what the motivation is for the people that are seeking approval.

ICT: Some tribes sort of got caught in that one as in the case of the Texas tribes, the Tigua and Alabama Coushatta, where recognition came preconditioned on not picking up gaming as an economic enterprise.

NORTON: That, as I understand it was a legislative recognition, and so there are some tribes that have been recognized through a congressional process, and sometimes that can specify the conditions. That's separate from the administrative process.

ICT: It (the Bush administration doctrine) is not a position where local communities will ever be able to deny recognized tribes from entering into gaming is it?

NORTON: IGRA (Indian Gaming Regulatory Act) creates a balance. The gaming regulatory act first of all allows a state to say we won't have any gaming in our state. If the state makes that decision then everybody in that state is bound by that decision, including the tribes within that state. On the other hand, IGRA says if the policy of the state is to have casinos, then that is something that the tribes are entitled to have as well.

ICT: In that case the local towns are secondary to the state-tribal relationship.

NORTON: Well it depends of the negotiation of the compact and I think that that compact approach is a beneficial one, and we'd like to encourage states and tribes to work together and to involve local communities. It is something that I encourage my employees to do for all types of Department of the Interior activities. I think if you can get people to sit down together and work out their differences, it's always healthier than confronting each other in court.

ICT: Can you tell us how things are moving along in filling the vacancies at the National Indian Gaming Commission?

NORTON: Actually we have three vacancies coming up. All three of the terms expired, and so we have new people that are going through the nomination process. We've had two going through the process of having reappointment with the comment period that has now begun with the publication of their names in the Federal Register, and then we have the Chair that goes through Presidential nomination and Senate confirmation process. The Chair, who has been nominated by the President is Philip Hogen. He has worked with us as the associate solicitor for Indian Affairs and is now going to be moving on. We've really enjoyed working with him as the associate solicitor. He is very competent and comes from a background of having dealt with both the gaming issues as a former member of NIGC and with law enforcement issues.

I come at the gaming issues from having been a state attorney general and so I do have concern that gaming stays legitimate by minimizing the ability of crime to become a part of gaming. So I wanted people that would understand that kind of a background. So I think the people we have coming in to the Commission understand that gaming, to be successful, needs to be honest.

ICT: And how would you characterize tribal gaming at this point in terms of any involvement of organized crime?

NORTON: I hesitate to give a personal perception because I wouldn't be able to say that about gaming anywhere else, -- I think it requires the law enforcement agencies looking at it, -- but I think the FBI report that was done a few years ago did not find any significant criminal activity.

ICT: We bring it up because The Wall Street Journal keeps harping on that idea in their editorials and we haven't seen any major evidence of that anywhere.

NORTON: I think it's important to have ongoing vigilance, so I think background check processes are very important. The other thing I think is tribes need to carefully consider before they get into a gaming enterprise, what the effect is going to be. There were three communities in Colorado that had been gold mining towns in the 1800s that pushed for an initiative to begin gaming in Colorado, and that's what opened the door later for tribes in Colorado to have gaming. Those communities were totally transformed by gaming. The people who were the local civic leaders who wanted to have gaming, for the most part, no longer live in those towns. The casinos totally dominate the towns and they are now far different than anybody expected when they began that process. So I admire the tribes that have looked at the big picture of their future. Gaming might play a role in that, [but] they ought to look at the broad issues of how they want gaming to fit in to their futures.

ICT: What is the status of the Indian trust funds case and the BIA reorganization process that is moving forward with the tribal leaders in the Trust Fund Task Force?

NORTON: Obviously, I don't want to talk too much about the litigation itself, but I've been very encouraged especially by our Task Force process. The tribal leaders who have become involved in the Task Force have been very diligent and have devoted tremendous amounts of their time to this process. We have gone through hours and hours of joint sessions to discuss a whole range of trust reform activities. I think we're making progress on that. Obviously it's not a fast process. We're talking about some very fundamental issues, and so it has taken time to work through this process. We do have agreement on some core aspects of reorganization. We will be creating an Undersecretary position so that we will have one place in the department that will be the focus for trust activities. We would have "Trust Centers" that would provide expertise in trust management and trust officers who would see that trust reform and trust standards are being carried out in the day-to-day activities of the BIA or other Department of the Interior activities.

We have obviously had a huge problem caused by the fractionation of interests. As the land has been passed down generation to generation we have more and more division of ownership interests and you often end up with interests in land that are too small to be economically valuable or economically viable. We need to address that issue and we've been talking with the Task Force about how to deal with that. I think in the long run we need to consolidate those tiny interests into tribal ownership so that the tribes can actively manage that and have something that develops more economic value because it is something that is more manageable.

ICT: How is it fixable? How do you consolidate?

NORTON: We have a program that has been going on at a few reservations now as a pilot program, of buying up some of those interests, and working with the tribes on purchasing interests and returning them to the tribes. That has been a fairly slow process and we've been exploring some ways to try to make that operate more efficiently. At this point we haven't really finalized what those recommendations will be but I think we'll have to work with Congress in some way of having a program to purchase those accounts.

ICT: So it will require some kind of legislation?

NORTON: At least in some form. The only thing they've authorized now is with what we're doing with our pilot program. Right now we're not keeping up with the continuing fractionation of those interests and so we need to get ahead of the curve. We've got interests that are thousandths of a percent of an 80-acre tract and that's just not something that really has much value to anybody.

ICT: It must also be very costly to manage. We know of a case for example where interest holders get a periodic report letting them know that they've got 47 cents in an account somewhere. It must cost more in postage and handling and printing of those statements each year than what the share is worth.

NORTON: We could get you the exact figure, but on average it's well over $100 for us to manage each of those accounts for a year. And if you think about spending $100 to manage an account that only has $1 that goes through it each year, that's not something that makes sense for the long term.

ICT: Are you optimistic? Is it fixable?

NORTON: It's going to require everybody working together to do it. It's going to require the tribes, the Task Force being active and involved. It's going to require Congress. There are so many aspects of this that need to be addressed. We have requested a huge increase in the budget for the Indian Trust and Congress is now considering that in the conference committee for our appropriations. It's an million increase for our Trust programs and that just shows the huge level of effort that is required to begin addressing some of these problems. It also includes upgrading our computer systems. We've taken steps to do substantial improvements in the security of our computers for example. We are continuing that process of improving the computer systems to provide work for the Trust process.

We're also working on an overall business plan for the Trust process. In the past they tried to fix the system by just coming up with an idea and implementing it. We've had a big analysis done by some management consultants and they said we really started at the end of the process instead of the beginning. What we need to do is figure out exactly what's involved in Trust asset management, sit down and figure out start to finish how do you handle a lease, who makes the decisions when dealing with leasing? What information do you need to have to make that decision? Once a lease is negotiated who needs to approve that? Where does that lease need to go? What's the paperwork you need to keep track of for that lease? For the thousands of different decisions that we make and steps in that process we need to catalogue all of that and figure out how that fits together and then figure out what computer systems we need to support that and how that process can be improved. And so we've been going back to do a lot of that groundwork that wasn't done in the past. The Task Force has also been helping us in that process of trying to identify how are things currently done and then we'll start working with them on how should things be improved. And so I think that can substantially improve our process.

ICT: And the Task Force is comprised of all Native leadership at this point?

NORTON: Right. It is basically two representatives from each of the BIA regions who were chosen by the tribes, and then there is an alternate for each of them. And then we've got several public department leaders who have been participating all along in that process as well.

ICT: Is this a significant change with the Task Force?

NORTON: Yes. It has been a very significant improvement. We had some consultation sessions early on that were huge group meetings and that didn't let it get to the level of detail we needed to discuss in order to really find the solutions. We need not just the ability for people to express their views, but the ability to have the give and take. And so the Task Force has been helpful in truly having dialogue instead of just the opportunity to express opinions.

ICT: With the Task Force in place do you see any scenario in which receivership might be justified.

NORTON: Well I think that gets close to the litigation and I'll not comment on that.

ICT: The U.S. Department of the Interior was one of the parties that recently lost the so-called "Kennewick Man" case in the United States District for the District of Oregon. Has Interior recommended or will you recommend to Justice that the government appeal Judge Jelderk's decision in the "Kennewick Man" case?

NORTON: We are just beginning the process of looking at the judge's decision and assessing where we should be in terms of an appeal. So we don't have an answer to that question yet.

ICT: We talked already about the vacancies at the NIGC. With the NAGPRA review commission there is a vacancy there as well? Is that correct?

NORTON: We'll get back to you on that.

ICT: Is there any impetus to move the NAGPRA program out of the National Park Service and into the Office of the Secretary?

NORTON: I know it's an issue, a suggestion that is made periodically, and it's not one that I've heard discussed any more today than it was a year and a half ago when I first heard that.

ICT: Within that context of the large land-based tribes, the Keepseagle case involving Indian ranchers is of interest (George Keepseagle is lead plaintiff in the case against the U.S. Department of Agriculture). We understand that while the case is in the courts that a number of foreclosures of American Indian farms are going on.

NORTON: I'm not familiar with the details on that and I really shouldn't comment on something that is in litigation.

ICT: Foreclosures of American Indian farms are going on at the same time the case is being processed. If the Indian farmers win that case and their farms have already been foreclosed, then the point is moot.

NORTON: I'm not familiar with that.

ICT: Given your legal background, what do you see happening to American Indian government powers and authorities in light of the Hicks decision and are you concerned about the direction being taken by the U.S. Supreme Court?

NORTON: Frankly, there are some issues that are in litigation right now in that area, and I certainly can't speak for where the Supreme Court is going to go. I think one of the things, just to comment, in the Navajo case and the White Mountain Apache case, that are in front of the U.S. Supreme Court, is the extent of how much the federal government, well it is the extent of the trust relationship. The concern that we have is that the trust relationship might be defined for the BIA to have to second guess the tribes on everything they do, and to be telling tribes "no you can't do this, you have to do things our way," because otherwise we're concerned we might have a liability problem. And so we want to avoid getting into a situation where the litigation causes us to restrict a tribe's ability to make decisions for themselves. And I would like to see the tribes able to make their own decisions and to truly govern themselves, instead of having the federal government tell them what to do. I want to work with tribes to develop ways in which they can have that true self-governance.

ICT: How would you rate the performance of Assistant Secretary ? Indian Affairs Neal McCaleb?

NORTON: I think Neal is great. He has tremendous abilities to get along with all types of people. He is a great listener. He is very enthused about working with Native Americans all over the country. I think he has been a very positive addition to the Department of the Interior.

ICT: During the administration of George Bush I, he signed the act that established the National Museum of the American Indian in 1989. During the current Bush administration the Smithsonian Institution may complete construction of the National Museum of the American Indian on the National Mall. What will this administration do to ensure that it gets the resources it needs to be successful?

NORTON: Well that's part of the Smithsonian as I understand it so they're really separate from the Interior and I can't really speak to their budget. I think it is a great project and we're certainly supportive of that undertaking. I think it's great from the perspective of Interior. We've seen so many of the historical resources that really haven't had a home and I think having a wonderful place to display those will be great.

AURENE MARTIN, Deputy Assistant Secretary of Indian Affairs: Our (Interior's) collection has been turned over to the National Museum of the American Indian.

ICT: They're going to be taking these pictures off these walls pretty soon. (A group of Edward S. Curtis prints adorned the Secretary's conference room.)

GROUP: (Laughter)

NORTON: Well now, wait a minute, I may have to rethink this.

GROUP: (Laughter)

ICT: Secretary Norton, thank you very much for your time.

NORTON: Thank you.