Just five days before President Donald Trump signed executive actions promoting the Dakota Access and Keystone XL pipelines without any tribal consultation, his transition team held a second meeting with tribal leaders on January 19.
Held the day before the inauguration, the five-hour summit in Arlington, Virginia was a follow-up to a December 14 tribal transition meeting. The Trump transition team was represented by former Department of the Interior chief of staff in the George W. Bush administration Doug Domenech; former solicitor of Interior in the Bush administration David Bernhardt; and Alaskan Native Jerry Ward, the designated tribal transition liaison to Indian country who expressed interest in December in having a role on Indian affairs in the Trump administration. The National Congress of American Indians (NCAI) sponsored the gathering.
The meeting offered prioritizing opportunities for tribal nations to strengthen federal policies and to forge realistic strategies with the new administration and the 115th Congress. It started with a two-hour open comment session during which Indian leadership presented several top-level priority challenges to the Trump team. A working lunch led by Jacqueline Pata, executive director of NCAI, followed, and then there was a panel discussion facilitated by NCAI Policy Director Denise Desiderio. A congressional perspective by Mike Andrews, staff director for the Senate Committee on Indian Affairs, filled out the session.
At the strategic level, Ward framed the overarching issues: sovereignty, self-determination, fulfillment of trust responsibility, and funding parity.
Speakers repeatedly reinforced the need for the U.S. government to respect and interact with tribes as distinct governments. One Seattle tribal leader noted that his tribe has signed trade agreements with China, and they hope to maintain robust trade as a sovereign nation.
For all tribal attendees, this meant moving from simple federal-tribal consultation to gaining authentic consent and agreement on all things affecting tribes. It was clear from speakers' comments, however, that tribes have too long settled only for consultation – or less – in dealing with the federal government. As one attendee put it, "It's time to govern and act like grownups."
Attendees repeatedly cited the failure of the U.S. to fulfill its treaty and trust obligations with regard to the four major federal programs that most impact tribes: healthcare, education, housing and economic development.
Highest and most immediate on the Indian country self-determination agenda is Indian health care. Most agreed that the impact of rescission or revision of the Affordable Care Act, which includes the Indian Health Care Improvement Act (IHCIA), would have devastating effects on Indian health. Said Stacy Bohlen, executive director of the National Indian Health Board (NIHB), “IHCIA is the whole health structure for Indian country. This needs to be preserved!" Improvement in the IHCIA and its funding would be welcome, but Andrews, from his perspective in the Senate, saw this as a remote possibility.
While Ward assured the group that no one wants to “harm” the IHCIA, tribal leaders see its viability as tenuous. With the Indian Health Service (IHS) currently operating at 38 percent of need, according to federal estimates, any adjustments to funding should be upward, attendees urged. But Republican fiscal austerity and GOP action to initiate debate on a budget resolution that would result in the repeal of the ACA on January 4 without mentioning the fate of the IHCIA was an ominous sign.
The potential for improvements in Indian education and in Bureau of Indian Education (BIE) schools in particular was equally gloomy.
Ahniwake Rose, executive director of the National Indian Education Association, says education is high on the list of Indian country challenges. Rose was confident that the Every Student Succeeds Act, which was passed by Congress last year, could be a large part of the solution.
But Trump is endorsing an unspecified voucher system, one that essentially guts the public school system that educates most tribal children. According to several speakers, vouchers don't work for tribes because they take funding away from both the BIA and the Department of Energy (DOE), which provide tribal educational funding. This, in turn, reduces federal trust obligations that pay for Indian education—something already chipping away significantly at tribes' ability to determine their own destiny.
There has also been talk the Trump team may use the BIE as a pilot program for a voucher-like system. This approach would only further inject the federal governments' ideas on how to fix tribal education programs sans tribal input. Tribal leaders believe that innovative educational approaches must come from Indian experts or tribes themselves. More importantly, as sovereign nations, most attendees felt tribes should be able to run and operate their own schools in ways that fits their own governments, not state governments.
With regard to housing, the Native American Housing Assistance and Self Determination Act (NAHASDA) is the third largest source of revenue for tribes from the federal government. Funding for it hasn't been increased in years, and tribes have little flexibility to leverage other investments to improve housing. While this should be a very major piece of infrastructure development, attendees were not sure that it is on Trump's radar.
Tribes do see an opportunity, although slight, to educate Secretary of Housing and Urban Development nominee Ben Carson who has little housing experience. They hope to bring him to tribal reservations and surrounding areas to show him the desperate need for better housing. Tribal leaders also agreed on the need to lead the development of recommendations for the Department of Housing and Urban Development's Office of Native American Programs (ONAP). The goal is to prevent being absorbed into another public housing entity because of tribes' sovereign status. An effort is underway to draft tribal leaders to be nominated for a tribal advisory committee on this issue by February 21.
At the same time, Indian country is seeking funding parity with non-indigenous groups for government services, as well as non-discretionary funding status for Indian programs. But it is difficult to see how this will be achieved with such a large funding gap across all programs to begin with, as sequestration and spending caps have decimated departmental and agency budgets since 2009. Economic development would go a long way to filling that gap, but that has its own roadblocks. Corporations wanting to do business on Indian land have to go through BIA, an onerous process. In addition, tribes are prohibited from issuing bonds to fund capital projects and are thus forced to rely on commercial loans. Moreover, parity is about more than money; parity alludes to achieving the same results for the same investment in various programs as do other communities.
Other hot topics included Indian gaming, water safety and land use. Given Trump's past negative statements on Indian gaming, tribes are in a wait-and-see mode, but with the market saturated, and only 25 percent of tribes involved in gaming, concerns center around Internet and sports gaming and how tribal exclusivity agreements will be interpreted.
Water safety issues have been addressed prominently in the news lately, though with the president's signature to move ahead with the Dakota Access Pipeline and the Keystone XL Pipeline, tribes face an uphill legal battle in defeating them on tribal lands and sacred sites arguments. One bright light is land use, according to attendees, especially the Department of the Interior’s land buy-back program, which aims to reduce fractionated lands in Indian country. Tribes encouraged the expansion of this program.
One final issue that nagged at tribal leaders was their relationship with the states in which they reside. Infrastructure, transportation, education, and other funds currently must pass through state filters before they are distributed to tribes. Since states do not have trust responsibilities, this seems like a misapplication of trust law that must be righted for tribes to thrive, according to tribal leaders who spoke at the meeting.
For attendees and speakers alike, "Good government begins with good government-to-government communications," as does the need for tribes to be the driving force behind tribal policy and reform. It remains to be seen how the Trump team translates this message back to the president, and how he responds. One thing is certain: tribes need to strike quickly and effectively within the administration’s first 100 days.