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Radical Enlightenment: The Man Behind Nixon's Federal Indian Policy

Paul Moorehead
7/22/13

On July 13, 2013, Leonard Garment passed away. He was 89 years old and the headline of his obituary read, “Elite attorney defended Nixon during Watergate maelstrom.”

This may be the perspective of one newspaper, but as many in Indian country know, Garment was more than a defender of President Nixon during the Watergate scandal, and his story much more interesting.

Garment was the son of Jewish immigrants from Poland and Latvia, educated at Brooklyn College and Brooklyn Law School. He became a lawyer in an era when the legal profession was cliquish and to many, effectively closed. As he said, he was “one of a handful of Jews in my generation who squeezed through the keyhole of the tightly closed Gentile fraternity of Wall Street lawyers.”

As a young man, Garment was a professional saxophonist and clarinetist, performing in Woody Herman’s band and along the way becoming an expert in jazz; what many consider the most original of American music.

Garment was an east coast liberal Democrat who met Richard Nixon in the mid-1960’s at the New York law firm Nixon, Mudge Rose, Guthrie, Alexander and Mitchell. At the time, the future president was in private practice, still reeling from back-to-back losses in the 1960 presidential campaign and the 1962 election for governor of the State of California.

Garment worked on Nixon’s 1968 presidential campaign in the role of counselor without portfolio handling issues such as desegregation and affirmative action, and American Indian issues, while serving as liaison to the American Jewish community.

The election of 1968 was held with the country in the midst of an unpopular and growing ground war in southeast Asia, a rising crime rate, political demonstrations, riots, and a weakening economy as a result of growing inflation and competition from overseas manufacturers.

In a close race that included third party candidate George Wallace, Nixon defeated incumbent Vice President Hubert H. Humphrey 43.4 percent to 42.7 percent, and in January 1969, Nixon became the 37th President of the United States. (Four years later, Nixon would be re-elected in a landslide victory over Senator George McGovern 61 percent to 39 percent.)

There are many theories about why Nixon felt it important to propose a radical change in federal Indian policy. Some chalk it up to the tutelage of Wallace “Chief” Newman, Nixon’s Whittier College football coach, who Nixon said had a more profound impact on him than anyone, save his own father. Others say it was because the new president needed to cultivate a better relationship with American minorities to soften his “law and order” image.

Still others claim it was not Nixon’s at all but the brainchild of John Ehrlichman, Nixon’s domestic policy advisor, and a group of White House counselors and consultants, including Garment and Patrick Moynihan.

Over the years and in various forums, Garment, Bobbie Kilberg, Brad Patterson and other White House staff instrumental in fashioning Nixon’s Indian policy have suggested that all of these factors were important in bringing about the resulting policy shift.

Eighteen months after taking office, Nixon issued his Special Message to Congress on Indian Affairs, making a sharp break with past policies of forced termination and assimilation and laying out a new Indian policy of self-determination that remains the foundation of federal-tribal relations. The Special Message instructs:

It is long past time that the Indian policies of the Federal government
began to recognize and build upon the capacities and insights of the Indian
people. Both as a matter of justice and as a matter of enlightened social policy,
we must begin to act on the basis of what the Indians themselves have long
been telling us. The time has come to break decisively with the past and to
create the conditions for a new era in which the Indian future is determined
by Indian acts and Indian decisions.

Nixon’s advisors understood that after taking a drubbing at the hands of the federal government for decades, by the late 1960s Indian tribes were on the ropes politically and economically. They also knew that the federal government could help revive tribal communities with financial aid and technical assistance, but at the end of the day the success of the new policy would depend on revived tribal governments to make political decisions and to strengthen tribal economies.

Contracting with the federal government was the means chosen to return authority to tribes, to authorize tribes to design and implement federal programs, and to build an Indian civil service—a cadre of Indian professionals to replace federal officials who had dominated reservation life for so long. The Special Message continues:

But most importantly, we have turned from the question of whether the
Federal  government has a responsibility to Indians to the question of how
that responsibility can best be furthered. We have concluded that the Indians
will get better programs and that public monies will be more effectively
expended if the people who are most affected by these programs are
responsible for operating them.

Many tribes have maximized opportunities that contracting and compacting have brought: as of 2013, one-half of the programs and budgets of the two main Indian agencies, the Bureau of Indian Affairs and the Indian Health Service, are managed by tribes under contract or compact with the federal government. The Special Message was correct in its assessment that tribes are better than federal agencies at delivering programs and services to their members.

The history of contracting and compacting shows that, without question, the quality of services delivered to their members has vastly improved. Participating tribes have also witnessed vast improvements in their capacity to function as governing bodies, and this enhanced capacity has helped in other areas, such business development and economic growth.

Strengthening tribal governments and developing human capital through contracting and compacting—which can be seen as Indian Self-Determination, Phase One—has succeeded.

Not all tribes have chosen to contract or compact with the federal government: beginning in the 1990s, the rate of growth in contracting and compacting slowed a trickle. Contract support shortages might account for this trend. So too might other factors such as the lingering fear that once a tribe assumed responsibility under a contract or compact, federal funding would be severely reduced or eliminated.

The congressional committees of jurisdiction ought to exercise their oversight responsibility and find out why this is so. They might also ask the Government Accountability Office to conduct a thorough review of these matters and issue an authoritative report to the Congress.

Other areas of federal law and policy continue to hold tribes hostage to a bygone era. In areas as diverse as housing, energy, criminal jurisdiction, health care and more, barriers to progress continue to be bloated and unresponsive federal bureaucracy, rules and regulations that—while necessary at one point in history—are obsolete because tribes need and want greater latitude to set and live by their own laws and rules.

This is especially the case in the sphere of economic activities, with tribes forced to advocate for changes in federal law to streamline energy-related leasing statutes (the Tribal Energy Development and Self-Determination Act of 2005), and liberalize simple surface leasing rules (the HEARTH Act of 2012).

We can learn a lot from Leonard Garment and his remarkable life. His passing, coming in the 100th year of Nixon’s birth, provides an opportunity to look back at the last 40 years and to imagine what the next 40 could hold.

With bold vision and the courage to work for better policies and ways to improve the lives of this country’s Native people, Indian Self-Determination – Phase Two might be just around the corner.

Paul Moorehead is a partner in the Indian Tribal Governments Practice Group at Drinker Biddle & Reath LLP’s Washington office. He previously served as Chief Counsel and Staff Director to the Senate Committee on Indian Affairs, and Government Affairs and Counsel to the National Congress of American Indians.

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