A Hard-Fought Victory To Restore Tribal Land Faces New Threat In Trump Era

What happened to respecting Native American sovereignty?

WASHINGTON — Along with being a self-proclaimed champion of public lands, Interior Secretary Ryan Zinke vowed to be an advocate for America’s indigenous communities and their right to self-determination.

Sovereignty should mean something,” the former Montana congressman told the Senate Committee on Indian Affairs during a January confirmation hearing. And after being sworn in, Zinke issued a statement in which he said “our sovereign Indian Nations and territories must have the respect and freedom they deserve.”

But a major change to the Department of the Interior’s Land Buy-Back Program for Tribal Nations, which addresses the widespread problem in Indian Country of land parcels being owned by sometimes hundreds of tribal members, is the latest example of Zinke and the Trump administration not living up to their promises to native peoples, former Interior officials say.

The Land Buy-Back Program targets land fractionation, which can threaten tribal sovereignty. As parcels of land granted to tribal members in the 1880s have been handed down from one generation to the next, ownership has been divided, or fractionated, among the heirs. With so many shared interests — in some cases, parcels have over 1,000 owners — lands have become all but impossible to use. Through the program, the federal government purchases fractional land interests from individual owners and restores tribal jurisdiction over the land.

The Interior Department announced a “revised strategy” Monday that it says “will more effectively allocate” the remaining $540 million from the landmark settlement in Cobell v. Salazar, money to be used to buy the multiple titles to individual land parcels. Not mentioned in the release, however, is that the decision cuts dozens of tribes out of the program entirely.

The proposed change to the program “represents everything that Indian Country has come to fear from Secretary Zinke’s leadership,” said one former Department of Interior official who requested anonymity to comment candidly. It’s “a solution in search of a problem that doesn’t exist; an effort to undermine an Obama Administration initiative for the sake of being contrary; and a move that will widely impact Indian communities without any formal government-to-government consultation,” the former official said in an email.

The Interior Department did not respond to HuffPost’s requests for comment.

An indigenous activist waves an upside-down U.S. flag with an image of Sitting Bull on it during a protest march and rally in front of the White House on March 10.
An indigenous activist waves an upside-down U.S. flag with an image of Sitting Bull on it during a protest march and rally in front of the White House on March 10.
Kevin Lamarque / Reuters

The Land Buy-Back Program kicked off in 2013, the fruit of a 13-year class-action lawsuit against the federal government. Elouise Cobell, a member of the Blackfeet Nation in Montana, and several other Native Americans filed suit against the Interior and Treasury departments in 1996. The plaintiffs argued that the federal government had mismanaged Individual Indian Monies accounts — in which the government deposits money collected from activities on land held in trust for Native Americans, including timber sales, agricultural leases and oil, gas and mineral production — shortchanging Native Americans by $150 billion. The case was ultimately settled in 2009 for $3.4 billion: $1.4 billion was divvied up among more than 300,000 individual plaintiffs and $1.9 billion was set aside for the purchase of fractional interests from willing sellers at fair market value, with the land ultimately to be turned over to reservations.

The Land Buy-Back Program has been widely viewed as a success, both in terms of helping to restore the relationship between the federal government and indigenous tribes and promoting economic growth in Indian Country. The program has paid out $1.2 billion to landowners at 45 locations in the last four years, consolidating more than 700,000 fractional interests — a 23 percent reduction — and transferring over 2.1 million acres back to tribal governments, according to the Interior Department.

Nevertheless, Interior’s Associate Deputy Secretary Jim Cason — who has been compared to James Watt, President Ronald Reagan’s controversial interior secretary — has labeled the program a failure.

At a May hearing of the House Committee on Natural Resources’ Subcommittee on Indian, Insular and Alaska Native Affairs, Cason described it as a “once-in-a-lifetime opportunity” that “has made relatively little progress in resolving this ongoing problem.” And he said the way the Obama administration ran the program made it “a very good deal for tribal leaders.”

“I don’t think there’s any tribal leader that would say, ‘Gee — I don’t want free money,’” he said, seeming to ignore the fact that Native Americans were the original occupants of these lands, that the lands were forcibly taken from them and that the settlement belongs to indigenous tribes.

Former agency officials HuffPost contacted took issue with both Cason’s statements and Interior’s recent decision to narrow the scope of the program.

David Hayes, the Interior Department’s deputy secretary under President Barack Obama, said the Cobell settlement is “historic and important” for both the government and Indian Country. Cason’s comments, he said, “greatly disrespect” efforts to “right the historical wrongs that were addressed in the Cobell litigation,” as well as the memory of Elouise Cobell, who died of cancer in 2011.

“This was a settlement that was endorsed by Congress and that was designed to help address a fundamental problem in fractionated ownership in Indian Country, and returning lands that were essentially useless and tied up … back into the control of sovereign tribes,” Hayes said. “You can’t get more fundamental in terms of sovereignty than that.”

“Denigrating the notion of a settlement and the purpose of the buy-back program is disturbing,” he added.

Elizabeth Klein, who served as associate deputy secretary under two interior secretaries, Sally Jewell and Ken Salazar, told HuffPost the program is complex, often requiring difficult decisions be made. The Obama administration understood $1.9 billion would not be enough to solve the problem, but its approach was to open the program to as many tribes as possible, she said. In May 2016, it expanded the program to include 105 tribes, up from the 42 it initially identified in November 2014. As of last month, 45 tribal nations had either accepted or received offers.

The Trump administration’s new implementation schedule, however, includes just 20 reservations or tribal territories, including 12 where landowners previously received offers. Five reservations are located in Zinke’s home state of Montana.

The move summarily removes more than 50 tribes from having a chance to benefit from the program.

Former Deputy Interior Secretary David Hayes says a “primary test” for the Trump administration is whether it engages government-to-government with Native Americans on federal decisions.
Former Deputy Interior Secretary David Hayes says a “primary test” for the Trump administration is whether it engages government-to-government with Native Americans on federal decisions.
Scott J. Ferrell via Getty Images

In its announcement, Interior said its revised strategy is based on several factors — including the complexity of the land ownership, cost and something it called “tribal readiness” — and followed “extensive analysis and feedback received from tribal leaders and American Indian landowners.” It said it “will continually assess progress and may revise the schedule or add locations as capacity and resources allow, depending on the results achieved.”

“If your goal is to repair a damaged relationship that’s existed for decades if not centuries with tribal governments and tribal people, this doesn’t strike me as the way to do it,” Klein said.

Keith Harper, an attorney who represented the plaintiffs in the Cobell case and later served as a U.S. ambassador under Obama, said the change is “significant,” “ill-informed” and “undermines” the deal the federal government agreed to.

“I think the most problematic part of this is that it only considers the interests of the department, and that was not the initial intent of the settlement,” Harper said.

“[If] tribes were dropped from the plan without consultation that would not, I think, be consistent with the early promises of the administration to fully respect sovereignty.”

- David Hayes, former deputy secretary of the Interior Department

A former Interior official told HuffPost there was no consultation with tribal leaders about the changes.

Instead, they received letters from Cason, addressed “Dear Tribal Leader” and sent out less than an hour before Interior published its press release online. In the letter, shared with HuffPost, Cason said he recognizes “some of you will be disappointed” and that “several tribes commented that they have invested energy and resources in preparation for implementation of the program.” However, the agency’s analysis showed that the new direction “most effectively maximizes the remaining dollars.”

Hayes said the “primary test” for the Trump administration’s relationship with Indian Country is whether it engages government-to-government with tribes on key federal decisions. He said he was not aware of the details surrounding the administration’s decision, but “if tribes were dropped from the plan without consultation, that would not, I think, be consistent with the early promises of the administration to fully respect sovereignty.”

HuffPost reached out to several tribes cut from Interior’s list. Two, the Cherokee Nation of Oklahoma and the Kalispel Tribe of Washington, responded. Kimberly Teehee, the Cherokee Nation’s vice president of government relations and Obama’s senior policy adviser for Native American affairs, said her tribe was not consulted. Like others, it received a letter outlining the revised strategy and list.

Given previous outreach by Interior’s Office of the Special Trustee for American Indians, Teehee said, the Cherokee Nation had a certain “expectation” that it would have an opportunity to participate. There are unique federal laws that apply to the Cherokee Nation, and the tribe had been working with the office of Sen. James Lankford (R-Okla.) to find a way to fully access the land buy-back program, she said.

Teehee added that she found Monday’s announcement “concerning”; however, she remains hopeful that the agency will revise its schedule to again include the Cherokee tribe.

A representative of the Kalispel Tribe said it would not be able to comment due to summer schedules and the kickoff of its annual powwow.

Klein sees this week’s announcement as part of an emerging trend of “knee-jerk reactions” from the Trump administration that target Obama-era policies and programs. This is also not the first time Zinke and the Trump administration’s commitment to Native Americans has been called into question.

In March, following months of protests in North Dakota near the Standing Rock Sioux Reservation, thousands of demonstrators, including members of dozens of indigenous tribes, marched in the nation’s capital against the Dakota Access Pipeline and President Donald Trump. The demonstration came after Trump signed an executive order aimed at pushing the controversial project forward and the Army approved a final construction permit. Seeming to ignore the concerns of Native American groups and environmentalist, Trump stressed that the project would create “a lot of jobs, 28,000 jobs. Great construction jobs.”

In May, members of the Bears Ears Inter-Tribal Coalition — a group of five Native American tribes that petitioned the designation of Utah’s Bears Ears National monument — traveled to Washington, D.C., to demand the administration meet with them and hear their concerns about its controversial plan to review monument designations. While Zinke subsequently sat down with members of the coalition, he ultimately recommended that Trump shrink the boundaries of the 1.35 million-acre Utah monument — a decision the coalition called a “slap in the face to the members of our Tribes and an affront to Indian people all across the country.”

Zinke caused a similar stir last weekend during a visit to Nevada, where he toured Gold Butte and Basin and Range national monuments as part of his monument review. The Las Vegas Review Journal reported that Zinke backed out of meetings with local Paiute tribes, Rep. Dina Titus (D-Nev.) and others who want to see the monuments remain intact.

“[It] felt like empty promises from the government … for him to dismiss us as Native Americans, not just my tribe but the Las Vegas tribe,” Darren Daboda, chairman of the Moapa Band of Paiutes, told the newspaper. “We sort of felt like we’re treated like second-class citizens.”

And while Zinke has spoken about the need to improve Indian education and health care, the Trump administration’s budget proposal calls for slashing the budget of the Interior Department’s Bureau of Indian Affairs by more than 10 percent. That includes a $64.4 million cut to Indian education programs.

If approved, it would “absolutely decimate Indian education,” Ahniwake Rose, executive director of the National Indian Education Association and member of the Cherokee and Muscogee Creek Nation, said at the time.

CORRECTION: A previous version of this story misstated the location of the Kalispel Tribe. It is located in Washington, not Montana.

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