David J. Hayes, Deputy Sec. of the Interior (AP Photo/Pablo Martinez Monsivais)

Interior’s Hayes Defends Carcieri Dealings

Rob Capriccioso
12/27/10

WASHINGTON -- It didn’t take long for alarm bells to ring after tribal officials learned that the Department of the Interior had helped an anti-tribal gaming lawmaker draft language involving crucial federal Indian policy.

After weeks of whispers, the revelation was made public at the National Congress of American Indians’ November conference in Albuquerque, N.M. where Obama administration officials confirmed that Interior had provided so-called “drafting services” to Sen. Dianne Feinstein, D-Calif., involving a Carcieri legislative fix.

Carcieri is a 2009 U.S. Supreme Court decision that has limited Interior’s abilities to take land into trust for tribes that were federally recognized after the Indian Reorganization Act of 1934.

Congressional friends of Indian country have said they support a simple fix that would clear up language in the law.

But Feinstein, with the help of Interior’s “drafting service,” reportedly wanted to do much more – ultimately limiting tribal gaming, especially in her home state, and especially in terms of so-called “off reservation” casinos.

The overall effect, say observers familiar with the language she crafted, would be a dramatic change in federal Indian policy that could be exceptionally harmful to tribal sovereignty.

Compounding the problem were widespread concerns that Feinstein, given her powerful appropriations position, could work to secretly attach her language to a quick-moving financial bill, making it difficult for tribes to weigh in in time to stop it.

At the center of the storm, at least in the minds of many tribal leaders and Indian-focused lobbyists, has been Deputy Secretary of the Interior David J. Hayes.

Some believed that, in order to help Feinstein, he purposely subverted the power of top officials at Interior who have solid expertise on tribal gaming and federal Indian policy matters by taking the lead in helping the senator draft her legislation.

Adding fuel to the fire was the reality that Feinstein and Hayes have had a close working relationship for years, and she helped champion his public service nomination through the Senate.

“The most ominous element ... is that Sen. Feinstein apparently has gone over the head of the Assistant Secretary for Indian Affairs, Larry Echo Hawk, and is dealing directly with Deputy Interior Secretary David Hayes,” wrote a lawyer with the Dickinson Wright PLLC law firm in a recent paper outlining previous Indian Country Today reporting on the matter.

“By dealing with him rather than an Indian law expert such as Echo Hawk, she does not have to reconcile the difference between the statutory definition of ‘off reservation land’ and the much broader definition proposed by the anti-Indian gaming community.”

Echo Hawk penned an op-ed for ICT, published online Dec. 8, in which he reiterated support for congressional enactment of a “clean” Carcieri fix.

“It is important that a Carcieri fix not be tied to the issue of gaming, which is just one activity that may occur on Indian lands,” wrote Echo Hawk.

As the controversy swirled, Hayes remained in the hot seat – even as he helped carry out the Obama administration’s settlement of the historic Cobell Indian trust settlement.

The possibility that he had a role in helping Feinstein draft legislation was even leading some in his own department to question his commitment to Indian country, according to sources familiar with inner workings at Interior.

Hayes reached out to schedule an interview with ICT, which took place by phone Dec. 7. The following interview occurred involving Carcieri:

Indian Country Today: It’s been well-publicized that Interior offered drafting services to Sen. Feinstein on a Carcieri fix. How do you view the situation? Were you involved in the drafting services?
David Hayes: We’re required, in order to respond to a request for drafting services by a United States senator, or a United States congressman – it’s part of the department manual; it’s part of the appropriations process undertaking of all agencies. It does not mean that there is any approval of the requests coming in. It is simply a drafting service. It is not an administration action. …

ICT: Does the drafting service fall under the consultation guidelines of Executive Order 13175, (which urges tribal consultation and sets federal guidelines for it on a variety of government functions?)
DH: No. No. It’s not an administrative action. We are responding to a congressional request. It does not reflect consideration of an agency or administration position.

ICT: Is it bound by any common law considerations?
DH: I really don’t want to talk about it anymore. … I think I’ve covered it.

ICT: There is a lot of confusion in Indian country over how these drafting services work, and how they specifically apply to the federal-tribal consultation relationship. So, anything that you can provide to clarify it would be helpful.
DH: Well, I think we have clarified it. I will look to see if there is anything more that we can share in writing. This is a legal obligation that we have to respond to an inquiry by a congressperson to give them a drafting service. It does not reflect an administration or agency position. We do it all the time. And it’s required by law. We do it many times for provisions that we do not approve of. That’s the long and short of it.

ICT: In past cases, how these drafting services have worked is that the Solicitor’s Office at Interior would vet or even draft the language. In this case, that doesn’t seem to be what happened. Can you explain?
DH: I’m not going to go into it. I was not personally close to the process.

ICT: Some people have said because of your past relationship with Sen. Feinstein – in that you have worked with her and she was a champion of your role in public office – that there is something murky there about you. Do you care to respond to those claims?
DH: [Pause] I, let me choose my words carefully. I think I have a reputation at this department and in Indian country that speaks for itself. I was never a staffer for Sen. Feinstein. I have a relationship with her like I have with many other members of Congress. I was not intimately involved in this process at all.

ICT: Do you think Carcieri and this controversy is going to stand out for President Obama at the upcoming tribal summit?
DH: Let me mention that the administration has spoken again very loudly and clearly about its desire for a clean Carcieri fix. That word has gone out. …

Since the ICT interview with Hayes, the U.S. House of Representatives has moved ahead with a clean Carcieri fix that includes simple language that does not attempt to limit tribal gaming. The Senate had yet to act as of press time.

ICT sent several more questions to Hayes by e-mail to clarify concerns Indian country officials have expressed about Interior’s drafting service to Feinstein on Carcieri. He has not responded.

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