Open Letter on Tribal Consultation for Interior Secretary Norton
I am writing to let you know a few things about tribal consultation that the good old boys at Interior may be keeping from you.
Your advisors set you on a course of secret action regarding Indian trust assets and now you are in a jam with tribal leaders. You failed to consult with people you are duty-bound to listen to and you gave the first and last word to your employees who are not bound by the law in the same way you are.
During your Senate confirmation hearing, you said your strong suit was working with interested parties to solve problems. That sounded like you would, at the very least, talk to those people who are the most directly affected by your decisions.
You also told the Senate you would resolve the trust funds problem right away. No one expected you to do that, but congressional members and tribal leaders had every reason to think that you would have considerable dealings with them on the issue.
Certainly no one anticipated your leap from learning about trust funds to dismantling Interior's Indian administration and redefining trust, a maneuver that was breathtaking in its suddenness and haughtiness.
You told senators you had a proposal for the court and gave them a one-page chart of a trust bureau. The court heard a different story, that your plan was underway and would take care of the trust funds problem.
When tribal leaders cried foul about the lack of consultation and wanted details, your representatives said the plan was not underway, but merely a proposal whose details would come from consultation.
After the outcry from Indian country and after senators told you to consult tribal leaders, you disclosed that you already hired someone to run the transition and the new bureau. Your surrogates peddled the new bureau at the National Congress of American Indians convention and hastily set up "consultations" to defend the plan.
From your meetings with Indian leaders so far, you know first-hand that they think your plan is a bust and the consultations are a sham, yet four more are scheduled in 2002.
Let us back up to the point where you should have told tribal leaders what the deal was. Not just the day you told the court. Not just the day before that, when you gave your chart to the senators. Not just the weeks before that, when you first presented your plan and its cost estimates to the Office of Management and Budget.
You should have advised tribal leaders about your plan before you proposed it to OMB.
The Indian Reorganization Act of 1934 requires that the "Secretary of the Interior shall advise such tribe or its tribal counsel of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget (OMB) and the Congress."
The tribal consultation that the IRA contemplates is unique in the federal process, where the rule is that no estimates can be released prior to the President's budget being proposed to Congress.
In the early 1970s, OMB noted the exemption for tribes and told the Interior secretary "to proceed to effect compliance with Public Law 73-383 (the IRA) by providing such estimates....where estimates pertain to programs specifically for federally recognized Indian tribes...."
Secretary Norton, your department not only submitted the budget estimates for your proposed trust assets bureau to OMB without advising tribal leaders, but continued to hide the ball during the next rounds of political and budgetary negotiations over it.
Perhaps your advisors failed to inform you of the 1934 statute or thought you could ignore it because it is old. But law is law, until and unless repealed or overturned.
Perhaps they thought you could discount recent statements -- the April 29, 1994 executive memorandum on relations with tribal governments and the May 14, 1998 executive order on tribal consultation -- because they are from the Clinton era. But these have not been withdrawn, so they stand as legal directives, too.
The first requires that all federal departments and agencies "shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments. All such consultations are to be open and candid so that all interest parties may evaluate for themselves the potential impact of relevant proposals."
The second, Executive Order 13084, states that its purpose is "to establish regular and meaningful consultation and collaboration with Indian tribal governments in the development of regulatory practices on Federal matters that significantly or uniquely affect their communities."
Native Peoples have considered suing Interior in the past for violations of the advise and consult mandates, but post hoc "consultations" were held and tribal leaders were told to stop re-playing the past and to get on with the consulting. Then tribal leaders would go to the Hill and Interior would wave around its consultation record -- sort of like what's happening now.
The dynamic might change if some tribal leaders were to coat-tail on the trust funds case and sue Interior for failure to advise and consult and for creating a consultation sham. What a field day Judge Royce Lamberth could have with such a motion to intervene. He has witnessed federal sleight of hand close up and is not likely to be dazzled by it.
One final note, on the person you are entrusting with Indian trust assets, Ross O. Swimmer. You praise him as a virtual renaissance Indian, saying he knows the law, trust, Indians and traditions. It is true that he has been a practicing lawyer and a banker and a Cherokee chief.
It is also true that, as Interior's Indian affairs assistant secretary some 15 years ago, his idea for fixing trust problems was to turn over major Indian programs to states and private interests. He showed open contempt for the Indian leaders and lawyers who disagreed with his plans and defeated them.
Regarding traditional knowledge, his deposition in a case involving Tellico Dam and a Cherokee burial ground is instructive. Swimmer sided with the Tennessee Valley Authority, which was building the dam, and against the traditional Cherokees who were struggling to protect Cherokee graves from being covered with water.
Swimmer swore that most of what Cherokees know about their traditions they learned from the TVA scientists. The court paid deference to Swimmer as the elected Cherokee principal chief and ruled against the traditional Cherokees.
Secretary Norton, you will soon encounter situations where consultations are required with tribal and/or traditional religious leaders on religious freedom, repatriation, graves protection, historic preservation, cultural resources and other policy matters. If you attend some of the consultations that are conducted in your name, you will begin to perceive some of the subtleties of the communities of interest and people in Indian country.
You will learn much through consultations and I hope that you will use your new knowledge to benefit Native Peoples.