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The Presidents; George Walker Bush

Can Indians trust a second-term Bush to deliver for them if the economy
turns around?

Trust is an especially tricky issue for tribes. It has come to mean
something else again - betrayed trust, as one of the government's own
reports has it.

The subject of that report is the trust funds, fittingly enough. The Bush
administration has won loud discredit in Indian country for the unresolved
trust funds lawsuit known as Cobell, after lead plaintiff Elouise Cobell.
Recent appeals court hearings put it pretty much beyond doubt that the
judge in the case has proceeded properly and that Bush's Interior
Department has been every bit as hapless and contrariwise as the last one
under Clinton.

One of two publicly known Bush administration initiatives to resolve the
trust funds impasse has led to a mediation process. Cobell, in a posting on
the www.indiantrust.com Web site, insists the government is not a willing
party to the mediation process, and vows that "even a few billion dollars
in settlement" won't be enough to compensate the losses to tribes over
time.

The legal logic behind the lawsuit is solid, as countless government
reports, court hearings and evidentiary pages have made clear enough. But
when it comes to settling the case, a more problematic logic is at play. It
is not a problem of poor fit between Native "circular" and Western "linear"
modes of reasoning (in the favored phrasing of the day). It's a problem of
elliptical logic - a logic of leaving things out, of leaping over vast
swaths of history as if they never happened, as if the resultant social,
economic and political alignments are not now in place and still to be
dealt with. Perhaps it's not logic at all, but a more inspired approach to
the problems of history in the depths of the present.

In any case, no presidential administration has ever looked good to the
Cobell plaintiff class on the trust accounts. A second Bush administration
is a good bet to maintain that track record. So are John Kerry and company.

The other special effort the Bush administration has made to resolve the
crisis in the trust funds is to beef up funding for the Office of the
Special Trustee. But the view from most of Indian country is that the OST
appropriations have come at the expense of the BIA (a view tirelessly
denied by administration officials, to no obvious effect). Meanwhile, the
BIA has been cut off from the Internet by the courts, reorganized by the
administration over tribal protests, and steered in a whole new direction
by current assistant secretary Dave Anderson. Only time will tell whether
the BIA as we know it is finished, or whether the reorganized agency will
live up to the administration's promises of improved services in the end.
Without adequate funding for other-than-trust services, of course, the
promise will prove hollow as far as current tribal leaders are concerned.
Once again, trust and its betrayal are the operative concepts here.

On the all-important issue of sovereignty, Bush made it clear finally on
Sept. 23, in a meeting with tribal leaders at the White House, that he
understands it and embraces it, and enforces it to the extent of issuing an
executive memorandum on the government-to-government relationship to
federal agency executives. Whether or nor he'll defend it is another
question; this is the president, after all, who at a minimum compounded the
foul deeds of Congress by signing away mineral-rich Western Shoshone treaty
lands.

But if Bush hasn't been a godsend to tribes on the trust funds, the BIA
reorganization or sovereignty, he's still done well by tribes on several
counts. The good things he has done, however, have been done in a different
way than we're used to, with economic efficiencies and effectiveness
uppermost in mind, while popular acceptance is secondary. As noted in the
first installment of this two-part article, the broad slow approach to
structural improvement isn't much appreciated until it's upon us, whereupon
amnesia sets in as to the problems it has solved (or often more precisely,
dissolved). Given a second term, it's conceivable that Bush's insistence on
broad structural approaches to complex reform would come to be seen as a
fine and timely contribution to Indian welfare.

In four vital arenas for Indian country - health care, education, grant
making and self-determination - Bush has started off with basic structural
change, an approach integral to his insistence on measurable results in
government programs instead of limitless promises.

In health care, the administration has increased funding to the Indian
Health Service in a constrained national budget, and to date it has
supported the Indian Health Care Reauthorization Act. Just as
significantly, however, it has directed major new funding to Indian
controlled diabetes prevention projects, reasoning rightly that if tribes
can't turn the diabetes epidemic around (it is one of the most expensive of
all major diseases to treat at later stages) - no amount of funding will
contain the crisis.

In education, Bush has made Indians a part of his national priority by
plowing three times more than any previous administration into Indian
school construction - a first step toward improved academic performance,
urged on him by no less a figure than Sen. Ben Nighthorse Campbell, the
Colorado Republican of Cheyenne lineage. This is why we don't hear so much
on the subject as we used to (the long-memoried among us may note at this
point that throughout the 1990s, the desperate construction needs of Indian
schools were among the top few issues in Indian country).

In federal grant making to tribes, Bush's appointee at the Administration
for Native Americans has embarked on an ambitious effort to transform the
government's only discretionary grant making program for Indians into a
performance-based agency, with measurable results to show Congress in
return for appropriated funds.

But here again, trust comes up. Reforming the moribund, much-criticized ANA
is a long-term project, and a second Bush administration will have to stay
the course if it's going to emerge as a force for the good in Native
economic development. In this regard it's worth noting that the first Bush
administration has backed ANA consistently, that the bill to fund ANA
passed the Senate by unanimous consent and went before the House of
Representatives on Sept. 30. If only because no one in the highly partisan
108th Congress actively opposes ANA and its programs, Capitol Hill staffers
in Indian affairs consider the bill a good candidate for passage by the
time Congress adjourns Oct. 8.

Finally, Bush has done something for tribes in self-determination as well,
though here again his approach takes the long view to appreciate and few in
the current generation of tribal leaders are prepared to thank him for it.
But at least his administration has drawn a line in the sand on
self-determination. By pursuing a final decision in the Navajo Nation v.
Peabody Coal Company court case, the administration obtained a U.S. Supreme
Court ruling against the Navajo. In rejecting a Navajo claim for damages in
breach of trust by the Interior Department in negotiations over a coal
lease, the high court ruled that the judiciary cannot enforce the federal
trust responsibility in the form of damages or compensation without
"express statutory language that imposes liability on the United States."

Congress must now pass legislation with Indian-specific laws at many levels
that assign liability to the government - or tribes will bear the risks and
liabilities in tribally managed projects. Without going into detail on the
great unfairness of the Peabody decision to the Navajo, still it
discourages tribes at large from relying on moral hazard - misconduct with
money on the conviction that others (taxpayers) will ultimately pay the
bill.

That this is a live issue in Indian country became clear on Sept. 29, at a
Senate Committee on Indian Affairs hearing on tribal lobbying practices
that included fee payments of $66 million over three years. Sen. Ben
Nighthorse Campbell, the committee chairman, had worked hard to ensure the
hearing didn't take shape as a referendum on tribal governments. But here
with all of Washington watching, tribal leaders whose predecessors in
office had not raised a stir about multi-million-dollar invoices from
lobbyists were heard to hope for compensation.

Indian country as a whole will be well served if the Supreme Court's
Bush-inspired sacrifice of the Navajo helps to drive moral hazard from
tribal decision-making.