The problem with trust reform is not that Secretary Norton and the Interior Department do not care about it. To the contrary, it is obvious that Secretary Norton, like Secretary Babbitt before her, places top priority on trust reform. The problem is that even when trust reform is the Secretary’s top priority, she still has fifteen or twenty other major issues that require her attention. Small wonder that the Secretary sometimes seems to be too busy on other matters to give undivided attention to trust reform.
Similarly, the Assistant Secretary for Indian Affairs has many priorities. Whichever may be the most important, the others do not go away and must be dealt with. The Assistant Secretary runs a school system, a police force and dozens of other programs spread out over several hundred locations from one end of the country to the other. To some degree, the fact that the Interior Department cannot name a single executive to be responsible for all of trust reform is simply a concession to reality. The job of the Assistant Secretary is too big in the best of times. When a major effort like trust reform must be undertaken, the job is overwhelming.
That is why Secretary Norton’s plan to take trust programs out of the Bureau of Indian Affairs had some initial appeal to me. Knowing as I do that an Assistant Secretary will find it impossible to constantly ride herd on the whole of the reform effort, appointing another senior political manager to the task made some sense to me. Like virtually every tribal leader in the country, though, I worry that the piecemeal deconstruction of the BIA will be bad for tribes in the long run.
I have always opposed any effort to deconstruct the BIA, at least as to the various service programs it provides. Thus, when the Department of Justice proposed in 1998 that the BIA’s law enforcement program be transferred to Department of Justice, I opposed that idea and it was scuttled. Justice argued that it knew more about law enforcement than the BIA ever would. I said, “That is probably true. But the BIA knows more about Indians than you ever will.” I learned this from my mentor, Forrest Gerard, the first Assistant Secretary for Indian Affairs.
Still, separating trust reform and trust operations from the rest of the BIA has some appeal. Thus, some tribes are advocating the establishment of a trust reform authority to carry out the reform program, while others support the creation of a separate bureau for Indian trust under the authority of the existing Assistant Secretary for Indian Affairs. Perhaps, then, the real problem with the Secretary’s reorganization plan is that it does not go far enough.
During my last year in office, the Clinton administration proposed a $1.2 billion budget increase for federal Indian programs. The initiative increased the budget for those programs to a total of over $10 billion. It occurred to me then that, if the Indian programs from all the federal agencies were consolidated, and the Bureau of Indian Affairs transferred out of the Department of Interior, the resulting Department of Indian Affairs would actually have a larger budget than the Interior Department.
This is not a new idea, but perhaps an idea whose time has finally come. The tribes have long complained that the Interior Department is rife with conflicts of interest when it comes to Indian affairs. When federal resource agencies like the National Park Service, the Bureau of Land Management, the Fish and Wildlife Service, and the Bureau of Reclamation all have facilities on and near Indian reservations, competition for resources is inevitable, and it is ferocious. Some of those resources are Indian trust resources, yet trust resources ultimately have no greater status than federally owned natural resources so long as the Secretary of the Interior is responsible for all of these agencies. In this sense, the critics of Interior are right.
The American Indian Policy Review Commission proposed in 1977 that an independent agency, the Indian Trust Counsel Authority, be established to manage Indian trust assets. There was also lots of talk in Indian country about establishing a Department of Indian Affairs. The idea was dismissed at the time. In 1977, though, nobody imagined that Indian programs would soon spread throughout the government, so that virtually every cabinet department and agency is responsible for one or more Indian programs. The Environmental Protection Agency, the Department of Agriculture, the Department of Education and the Justice Department, to name a few, all have major programmatic responsibilities in Indian communities.
Combining all of those programs in a single department has some attractive features. Certain programs now operated out of different departments could be combined (like in housing, education and economic development) and field operations of the various agencies could be co-located (in places like Phoenix, Albuquerque and Denver). Best of all, the overall coordination of resources could be accomplished under the authority of a single executive officer, the Secretary of Indian Affairs. The Secretary would also serve as the high-level advocate for Indian country when the activities of other federal departments impact Indian communities.
Under such a scenario, an Assistant Secretary for Indian Trust Asset Management would make sense, as would an Assistant Secretary for Indian Education, an Assistant Secretary for Indian Health, and an Assistant Secretary for Indian Law Enforcement, etc. Trust programs could be separated from other Indian programs without the loss of the overall coordination of Indian policy and programs. The accountability that Indian country, the Congress, and the courts are demanding would be on the shoulders of government executives who would have no competing responsibilities and would possess all of the authority they need to make trust reform work.
Certainly the primary concern of tribal governments would be resolved were a Department of Indian Affairs to be established. The tribal leaders have validly complained that the dismemberment of the Bureau of Indian Affairs weakens the institution that most embodies the federal trust responsibility and the federal-tribal relationship. That love-hate relationship the tribes have with the BIA is on grand display in the current debate over Secretary Norton’s proposed reorganization.
No doubt she has been surprised by the tribes’ strident defense of the agency they love to hate. None of us Indian affairs wonks are surprised in the least. Replacing the BIA with a DIA creates an even stronger institutional symbol of the permanence of the government-to-government relationship and the United States’ trust responsibilities.
Come to think of it, many other troubled Indian programs might also benefit from a new structure. The Congress might well find it worthwhile to consider a variety of substantive reforms of programs like the federal recognition program, BIA schools, and others. Additionally, Indian programs like those currently operated by the Environmental Protection Agency and the Department of Justice could come under the ambit of the Self-Determination and Self-Governance Acts, thereby increasing their accessibility to tribal governments.
As I said, this is not a new idea, and there are some problems with it. Some say that a single Indian department would be a ripe target for budget cuts when the Congress or the President get in a budget-cutting mood. Others say that Indian programs would become “ghetto-ized,” relegated off to an unimportant institution on the fringes of the federal government. Still others point out that federal departments other than the Department of Indian Affairs would be free to ignore tribes, referring all tribal complaints to the Department of Indian Affairs. These are legitimate points. I believe there may be good remedies to these concerns, but they are genuine problems to be discussed by smart people. All I’m saying is, maybe the time has finally come to have that discussion.
Kevin Gover, a columnist for Indian Country Today, is a partner is the Washington, D.C. office of Steptoe & Johnson LLP. Mr. Gover’s practice focuses on federal law relating to Indians and on Indian tribal law. he is the former Assistant Secretary for Indian Affairs in the U.S. Department of Interior.
