Cliff Matias
Assistant Secretary – Indian Affairs Kevin K. Washburn sat with a panel from ICTMN in September while in New York.

BIA Head Kevin Washburn Speaks to ICTMN About Bay Mills and the Need to Resolve Water Rights

Gale Courey Toensing
11/17/14

Interior Secretary – Indian Affairs Kevin K. Washburn was in New York City in September as the historic Peoples’ Climate March and the United Nations General Assembly opened its 69th regular session with the first World Conference on Indigenous Peoples, where he added to our excitement here at ICTMN by taking a few hours to sit with us for an interview.

Washburn holds the government’s top administrative position dealing with federal Indian law and right now he’s in the midst of reforming the most controversial regulations in Indian county – the rules for federally recognizing an American Indian tribe.

The following is part 3 of that interview. For readability and clarity, we have chosen not to identify individual speakers presenting comments and queries by the ICTMN panel.

Last time we talked, we asked you about the Bay Mills case, but it was still pending in front of the Supreme Court and you couldn’t say much.  What do you think of the Supreme Court decision and in the long term do you think it was ultimately good or bad for Indian country? [In the Bay Mills case, the high court ruled that the state of Michigan was barred by tribal sovereignty from suing the Bay Mills Indian Community over an off-reservation casino it had opened.]

RELATED: Bay Mills Beats Michigan; Tribal Sovereign Immunity Upheld

Let me share just a little background on that decision. I heard  a lawyer describe the Bay Mills litigation the other day with an anecdote. He said, ‘You know, when I was a kid, some friends and I found a World War II grenade. And we decided we were going to blow it up. So we pulled the pin and we threw it. Nothing happened. It was a dud.’ Fortunately, no one was hurt, and I think that a lot of Indian country feels that way about the Bay Mills decision. The Bay Mills Tribe took a risk with sovereign immunity – and fortunately, no one was hurt. Justice Elena Kagan wrote the decision and it was a 5 to 4 decision in favor of tribal sovereignty.

Justice Kagan has exposure to Indian law because of her time as Dean of Harvard Law School. I know that she had several opportunities to interact with Indian law scholars and give speeches around events related to Indian law because of the Oneida Nation’s endowed Indian law chair. That had a subtle, but important impact in educating her, I’m sure. Some of the Justices on the Supreme Court don’t know anything about Indian tribes except what they read in briefs. She’s had more experience because of her time at Harvard. So that shows the importance of the Oneida Chair. I feel like we dodged a bullet in the Bay Mills case. The Supreme Court did the right thing and recognized the existence and importance of sovereign immunity, so that’s a good thing. But it makes me nervous to keep testing the limits of tribal sovereignty in this Supreme Court.  Sometimes we will lose, as in Carcieri, Patchak, and the tragic Baby Girl case.

The majority on the opposing side relied on the idea of the Doctrine of Discovery to support their position. It’s not that Bay Mills won; it’s what it cost – which was another affirmation from the Supreme Court that this thing called Doctrine of Discovery is still in play and still determines our relationships. And everybody knows it’s rubbish. It’s outdated, it’s racist, it’s everything negative, but courts still rely on it.  Do you have an opinion on that?

Well, I’m a real pragmatic person. My position demands it. We should try to improve the world and legal jurisprudence, and we have to be opportunistic. Now and then we get lucky. While I was a law professor, I mostly worked on criminal justice issues and I always thought, like most Indian law scholars, that the Oliphant decision was terrible. [Oliphant v. Suquamish Tribe in which the high court ruled that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.] However, I didn’t spend time writing Law Review articles saying that we should overturn Oliphant and restore tribal authority over non-Indians because I thought that was a bridge too far. I just didn’t think that would happen in my lifetime – kind of like an African-American being elected president of the United States. I was much more pragmatic. A lot of my scholarship was oriented toward restoring felony jurisdiction to tribes over their own people first. My belief was that, once we have successfully obtained felony jurisdiction over our own members, and shown that we can exercise it responsibly, then we’ll have a much stronger argument that we can exercise jurisdiction over others. So, I was kind of the modest guy and, lo and behold, a short time later the Tribal Law and Order Act passed, which gave tribes felony jurisdiction over their own members.  I was very happy, but I thought that it would be years before we would proceed to that next step to unwinding Oliphant. But in 2013, we got the Violence Against Women Act Reauthorization, which is an Oliphant fix and extends jurisdiction over non-Indians. It’s just mind-boggling sometimes how fast things can change. It’s very heartening when that kind of thing happens. So I try not to be too cynical. I also realize that I can’t predict things very well. I am grateful that we have advocates who “think big” and don’t get weighed down by cynicism.

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