On the day the Trump administration announced the decision to green light the Dakota Access pipeline and revive Keystone XL, I was updating a draft of this column on the Land and Water Conservation Fund. The decision was not a surprise since we had been warned during the campaign. It was still a punch in the gut. The abruptness of the announcement signals that this administration approaches relations with tribal nations quite differently from the Obama administration. The Presidential memoranda directing the relevant federal agencies to take steps to approve these two pipelines do not mention tribes at all, demonstrating disregard for the concerns that tribal leaders have raised in making the case for not allowing these projects to be built. Perhaps the real reason for ignoring the concerns of tribal leaders has nothing to do with the fact that they are leaders of Indian tribes. It could simply be that tribal nations are standing in opposition to two major fossil fuel infrastructure projects that Trump supports. In any case, the opposition will continue.
Is this instance of disregard for tribal concerns a harbinger of things to come in the Trump administration? Will relations with tribal nations be poisoned by the Trump administration’s efforts to push through these two pipelines? Or is it possible that Mr. Trump will come around to endorsing some of the initiatives of the Obama administration, such as the emphasis on consultation with tribes, the annual White House Tribal Nations Conference, and the White House Council on Native American Affairs? As lack of predictability is a trait that Mr. Trump seems to enjoy, I am reluctant to guess. It makes me think that it is more important than ever for tribal nations to have supporters in Congress.
Over the last half century, the federal policy of tribal self-determination has been endorsed by the executive branch in administrations of both parties and by members on both sides of the aisle in both houses of Congress. Tribal leaders and intertribal organizations have worked relentlessly to build bipartisan support for Indian legislation. Results have been mixed, but the basic federal commitment to the policy of tribal self-determination has been a constant.
Amid the partisan rancor rampant in politics these days, one strategy for solidifying bipartisan support for Indian legislation would be to advocate for inclusion of tribal provisions in generally applicable bills that have bipartisan support. And this brings me back to the Land and Water Conservation Fund. Established by act of Congress in 1964, the LWCF provides funding from fees paid by private companies conducting offshore oil and gas development. The funding is divided into two pots, one for federal agencies and one for the states. The federal pot is for protection of federal land by the National Park Service and other federal agencies, including lands and waters important for wildlife habitat. It can also be used to acquire inholdings of private land from willing sellers within national parks, recreation areas and national forests.
The state pot provides matching grants for state parks, habitat protection and local outdoor recreation projects, including planning and development of outdoor recreation facilities such as picnic areas, parks, campgrounds, tennis courts, boat launching ramps, bike trails, swimming pools, playing fields, and support facilities such as roads and water supplies.
There is no pot for grants to Indian tribes. The Catalog of Federal Domestic Assistance says that Indian tribes are eligible for grants, but it does not yet allow for tribes to apply directly to the National Park Service, the federal agency that administers the LWCF state grant program. Rather, the Park Service only accepts applications from the states, and each state selects the proposals that it sends to the agency, which must be consistent with the state’s Statewide Comprehensive Outdoor Recreation Plan. For a variety of reasons, administering federal assistance programs through states tends to result in Indian country being left out. I asked the Park Service and learned that tribes have not been entirely left out of the LWCF: of more than 42,000 state projects funded with Land and Water Conservation Fund grants over the half century of the program’s existence, 91 projects in Indian country have been funded, on average less than two projects per year.
This is the kind of federal assistance program that, if it had been created 10 or 20 years ago, would probably have a statutory set-aside for tribal governments. But the Land and Water Conservation Fund was created before the dawn of the Self-Determination era of federal Indian policy. Tribes were left out in 1964, and the statute has not been fixed since then. It should be fixed. And fixed in a way that treats tribes as the sovereign governments they are, distinct from the states.
If there were a tribal pot, how much money are we talking about? The statute enacted by Congress calls for the Land and Water Conservation Fund to be funded with receipts from offshore oil and gas leases (not from tax revenues) with a cap of $900 million per year, although actual funding appropriated every year by Congress has been less, in recent years about one-third of the authorized amount. Yet these oil and gas fees have gone far in benefit of healthy families and communities. Since its inception, the aggregate amount of the Land and Water Conservation Fund state and local assistance grants is more than $4 billion. Of this amount, a little more than $4 million has been for tribal projects, or about one-tenth of one percent. Whatever mathematics might be used to calculate a share for a tribal set-aside, we could be talking about a substantial amount of money, especially if it were to include a factor to make up for tribes having been left out of this program for half a century.
Tribal amendments to the Land and Water Conservation Fund legislation could also include some provisions for including tribal governments in the federal side of the program. Lands that federal agencies acquire via Land and Water Conservation Fund funds may be important to tribes for cultural, religious, or historic reasons. I would like to see express authorization for agreements between land-managing agencies and tribes for cooperative management of such lands.
It must be noted, unfortunately, that, although the Land and Water Conservation Fund has been with us now for half a century and has had bipartisan support since its inception, in recent years there has been some opposition. In the Congress that just adjourned, the Energy bill that was passed by the Senate with bipartisan support included a provision to permanently reauthorize the Land and Water Conservation Fund. (The current authorization for the Land and Water Conservation Fund was enacted in an appropriations act for FY 2016 and expires on October 1, 2018.) However, some Republicans in the House, including Rep. Rob Bishop (R-UT), Chairman of the House Natural Resources Committee opposed that measure, and it was not included in the House version of the Energy bill. Then the House and Senate failed to resolve their differences, and the Energy bill died.
In the current Congress, a bill to permanently reauthorize the Land and Water Conservation Fund has been introduced, H.R. 502, sponsored by Rep. Raul Grijalva (D-AZ), identical to a H.R. 1814 in the last Congress, which had 211 cosponsors, including 27 Republicans. A coalition of conservation, recreation, environmental, business, and historic preservation organizations has coalesced to advocate for reauthorization and full funding. I’m hoping the time has come, after half a century, to fix this program so that Indian country is included – in a manner consistent with the sovereign status of tribal governments. I think we might well find broad support among the conservation, recreation, social justice, and environmental justice communities for helping tribal governments provide better outdoor recreation opportunities for people who live or work in Indian country, and for visitors. Some people and organizations might support a tribal fix for the Land and Water Conservation Fund out of a sense about righting the wrong of having left tribes out half a century ago.
Others might lend their support just because they really enjoy outdoor recreation, and they believe that everyone, including people who live in Indian country, should have opportunities to find their own enjoyment in the Great Outdoors. And who could argue otherwise? A tribal fix for the Land and Water Conservation Fund really should be worthy of broad support. To start building that broad support, my suggestion is this: we should remind the people and organizations working for Land and Water Conservation Fund reauthorization that tribal nations are still here, and let them know that we want in.
Dean B. Suagee is an attorney with Hobbs, Straus, Dean & Walker LLP, in Washington, D.C.As a member of the Cherokee Nation, he was motivated to become a lawyer and practice Indian law.Email: email@example.com