Tribes Take Note! Department of Interior is making moves (and they can benefit you!)

By Anna Hohag | anna.hohag@procopio.com

In the recent span of 30 days, the Department of Interior and the Biden Administration announced no less than 7 key policy proposals that can greatly benefit you to provide your Tribe’s input. The following is a brief overview of these moves, with links to the sources. Each of these items will be addressed in more detail here in the future, but for now, you have been informed!

1.                  Joint Secretarial Order 3403

Recognizing that the Interior and USDA will benefit by incorporating Tribal expertise and Indigenous knowledge into Federal land and resources management, the departments are urging Tribes to submit Tribal proposals and ideas on how to best manage the millions of acres of Federal lands and water that were previously owned and managed by Indian Tribes. Last November, the Interior and USDA issued Order No. 3403 a “Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters.”

2.                  Tribal Treaty Database

In a collaboration between the Interior and Oklahoma State University, USDA is developing and regularly updating a tribal treaty rights database to better understand and fulfill treaty rights obligations. During the 2021 White House Tribal Nations Summit, President Biden announced that the Interior and 16 other federal agencies formally committed to protecting Tribal treaty rights in agency policymaking and regulatory processes, formalized in the “Memorandum of Understanding regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights.” Tribes whose treaties contain federal promises that have gone unperformed are encouraged to contact the USDA Tribal Relations team.

3.                  Buy Indian Act Regulations

The BIA announced new regulations to improve implementation of the Buy Indian Act to promote economic development opportunities in Indian Country. This Act allows the Interior to set aside certain opportunities for Indian-owned and controlled businesses, and seeks to: eliminate barriers to Indian Economic Enterprises (IEEs) from competing on certain construction contracts, expand IEEs’ ability to subcontract construction work consistent with other socio-economic set-aside programs, and give greater preference to IEEs when a deviation from the Buy Indian Act is necessary. These regulations also align with the Indian Health Service providing consistency and streamlining the procurement procedures for Native-owned businesses.

4.                  Indian Affairs Appeals Regulations

The Interior also announced the forthcoming release of a proposed rule governing Appeals from Administrative Actions at 25 C.F.R. Part 2, to include when and how the Assistant Secretary – Indian Affairs (AS-IA) will take jurisdiction over an Interior Board of Indian Affairs (IBIA) action. Tribes should keep an eye out for these forthcoming updates.

5.                  Fee to Trust Regulations & Gaming Compact Regulations

On March 28, 2022 the AS-IA announced Tribal consultation sessions regarding draft amendments to the regulations governing both the fee-to-trust process and Class III gaming compacts. The proposed changes to the fee-to-trust regulations at 25 C.F.R. Part 151 are intended to clarify the Secretary’s authority to take land into trust for Tribes, reduce processing time, and establish clear decisions-making criteria, with a special focus on taking land into trust for conservation purposes. The proposed changes would build on Secretary’s Order 3400 re-delegating the authority to review and approve applications to place land into trust to the BIA regional directors. The proposed changes to the Class III gaming compact regulations at 25 C.F.R. Part 293 are intended to provide clarity on the criteria the Interior will consider when deciding whether to approve compacts by clarifying boundaries of allowable topics of negotiation, better defining key terms, and clearly outlining when the Interior must review a gaming compact.

The Department will conduct four virtual consultation sessions between May 9 and May 23 and will accept oral and written comments. Written comments should be submitted to consultation@bia.gov by 11:59 pm ET on Thursday, June 30, 2022.

6.                  Tribal Water Codes

On April 7, 2022 Secretary Haaland rescinded a nearly 50-year old moratorium on the federal approval of Tribal water codes, restoring Tribal authority to adopt water laws to regulate water use on their own lands. Tribes should keep an eye out for more information on upcoming Tribal consultations on this important issue!

7.                  Tribal Energy Development Organizations

Finally, the Interior announced its approval of the first ever Tribal Energy Development Organization (TEDO) issued to the Red Lake Band of Chippewa Indians. This makes the Tribe the first to receive such approval and will support the Tribe’s effort to develop renewable energy resources. TEDOs provide an avenue to reclaim Tribal authority by allowing Tribes to enter into and manage energy-related leases, rights-of-way and business agreements without obtaining the burdensome BIA approval for each individual lease, right-of-way, or agreement.

We encourage any Tribes, Tribal Organizations, or Native-Owned Businesses wishing to learn more about these potential opportunities to reach out to one of the many experienced attorneys in the Native American Practice Group here at Procopio. We look forward to working with you and all the potential growth for Tribes under this Indigenous-led team at the Interior and beyond!

Anna Hohag advises Tribal governments and Tribal entities on a wide variety of issues including Native American governance, intergovernmental agreements, natural and cultural resources, environmental and land use issues, housing, education, general welfare, economic development and gaming matters in Indian country. Her practice primarily focuses on Native American governments and tribal land issues, including land and natural resource planning, board governance, and tribal law and policy development.

Congratulations to Tyler Fish, White House Tribal Advisor

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

Good things happen to good people. It was with great pleasure that we learned this week that Cherokee Citizen Tyler Fish made a jump from the Department of Interior (working as counsel in the Office of the Assistant Secretary Indian Affairs) directly into the White House to provide first hand input on the Administration’s policies regarding Tribal matters. His official position is Senior Policy Advisor & Tribal Liaison at Executive Office of the President, The White House.

A Marine veteran with a can-do and will-do attitude that knows his way around Washington, Tyler brings the kind of energy that this advocacy position needs. I was pleased to get to know Tyler in his law school days when he applied for our Native American Internship position and we have maintained a connection since then. You do that with people of quality, and I can certainly say that about Tyler. It has been fun to watch his career grow into a place of influence and importance. Looking forward to great things coming from his office. Congratulations Tyler!

You can read more about his designation here and here. Meet Tyler on LinkedIn.

Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Supporting Sovereignty: Is Your Tribe’s Constitution Full of Antiquated and Paternalistic Language?

When was the last time you looked at your Tribe’s Constitution? It’s probably not an everyday occurrence, and when you do review it you might just be scanning for a specific clause. If you were to take a moment to sit back and work your way through it, however, it’s quite possible you’d come across some language that resonates as a bit tone-deaf in a 21^st Century world in which Tribes rightfully resist federal paternalism. There are steps Tribes can take to remedy their own Constitutions, but first let’s look at how we found ourselves here.

In 1934, the Indian Reorganization Act helped move federal Indian policy away from the destructive policies of allotment and assimilation towards a new line of thought in which Tribes were encouraged to strengthen their governments. During this era, the federal government provided Tribes with template documents to help tribal governments establish constitutions and created a foundation upon which elections could be held with assistance from the federal government. Perhaps in a moment of overcompensation for past policies, the templates provided by the federal government contained paternalistic language and the support they offered maintained a significant amount of federal oversight; however, in the 1930s, this policy shift was a welcome change from the allotment and assimilation era.

Today we find ourselves in a period of federal Indian policy dubbed the “Self-Determination Era” and since the 1970s federal Indian policy has largely supported the notion of Tribes taking more control over their own affairs while simultaneously decreasing federal oversight. This is not to say that every federal decision has supported self-determination, but generally the principles of self-determination have helped many Tribes reestablish strong governing bodies capable of running their own electoral management offices.

Unfortunately, many Tribes continue to use the form documents provided to Tribes in the 1930s for their constitutions and other governing documents. For many Tribes, the paternalistic language contained within these documents represents an antiquated reminder of a bygone era of federal Indian policy. Further, many Tribes are finding themselves burdened by the language contained within these outdated paternalistic documents.

For example, many Tribal Constitutions contain language requiring approval by the Secretary of the Department of the Interior for amendments to their constitutions. Before such amendments can be operative, even if unanimously approved by a vote of the members of the Tribe, the action must obtain secretarial approval. In fact, the form constitution currently provided on the Department of the Interior’s website still contains this provision. (Click here to open the pdf form constitution).

This paternalistic approval process has worked against the interests of Tribes on many occasions. In 2003, members of the Cherokee Nation voted on, and passed, an amendment to their constitution removing the provision requiring secretarial approval for constitutional amendments. However, in 2007, four years after the Tribe passed this amendment, the Bureau of Indian Affairs notified the Tribe that the amendment was rejected. (Click here for the full story)

The important takeaway from this process is that even though we currently find ourselves in an era of federal Indian policy supporting and promoting self-determination (BIA encourages tribes to assert more control over internal affairs, read the article here), Tribal governments find themselves hampered by antiquated, paternalistic remnants of a previous era.  Tribes must work to take back their rights to truly govern themselves.

Luckily, and ironically, the federal government has since approved amendments to many Tribal Constitutions removing the secretarial approval provision from the constitutional amendment process (Constitution of the Cherokee Nation; Constitution of the Seminole Nation of Oklahoma; Mashantucket Pequot Tribal Nation). I encourage all Tribal Members to look at your own Tribe’s Constitution to see if there is a secretarial approval requirement for constitutional amendments for your Tribe and decide if this is in your best interest. Removal will help bring the constitution in line with current federal Indian policy and it could to prevent future unnecessary burdens from impeding the goals of the Tribe.

If you would like help removing the paternalistic language from your Tribe’s Constitution or would like to talk with someone to learn more about what this would mean for your Tribe, the Native American Practice Group at Procopio is here to help.

Aaron Fournier is a member of the Chickasaw Nation in Oklahoma, and a rising 3L at the University of Oklahoma’s College of Law.  He is a former Udall Foundation Intern, working in the office of the Assistant Secretary for Indian Affairs.  Aaron is a recipient of the 2018 Procopio Native American Law Student Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle.  Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

“Forage”- Ahead: Tribes Permitted to Gather Plants from National Parks

By: Kele Bigknife | Intern | kele.bigknife@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

Effective August 11, 2016, the U.S. Department of Interior authorizes the National Park Service to enter into government-to-government agreements with federally recognized Tribes to allow tribal members to gather and remove plants or plant parts from national parks and monuments for tribal or cultural uses. [Link to the rule here]

In the agreements, Tribes must explain their traditional connections to a particular park or monument, and show that such connections predate the park’s establishment. Tribes must further identify the specific plants that will be gathered, in what quantities the plants will be collected, and what individuals may conduct the foraging activities. Some Tribes are worried that the mandatory informational disclosure to the public agency might lead to undue public documentation of traditional religious practices, and harassment of tribal members. However, in many instances, the protection of national park/monument status has maintained some of the best remaining populations of traditionally-used plants.

For each request, the National Park Service must also conduct an environmental assessment to determine the impact of the tribal plant gathering on park resources, as this is a notable departure from prior directives to “leave only footprints, take only pictures.” A “no significant impact” determination, declaring that the tribal plant gathering will not have a negative impact on a particular park or monument, must be reported in order for a permit to be issued.

Aside from the criticism mentioned above, the new rule is a good step forward in supporting and respecting the continuation of the unique cultural traditions and practices of American Indians. Years of studies in the field of ethnobotany and traditional plant management have shown the benefits of traditional gathering methods used by many tribal members familiar with the specific harvest and cultivation techniques of their regions. Far from being “negative impacts,” these methods have proven to be effective at ensuring plant conservation, replacement, and prosperity.

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.