The highs for Indian country with David Hayes serving as the Deputy Secretary of the Department of the Interior were exceptionally high. But the lows were pretty low—and they are going to leave some scars.
His legacy is being debated now that he has announced that he will be stepping down in June to join the Hewlett Foundation as a senior fellow and to teach at Stanford Law School. Many observers in D.C. thought he was a candidate to be named Secretary of the Interior earlier this year, but President Barack Obama selected Sally Jewell, who took over in April.
Hayes’s mixed relationship with Indian country may merit more attention than that of his former boss, Ken Salazar, who stepped down as Interior Secretary in March. In part, that’s because Salazar worked hard to let tribal leaders know Hayes was the driving force behind much of the progress in Indian affairs with the Obama administration, and it’s also because Hayes’ friendship with a top Democratic senator may have cost Indian country its sovereignty for decades to come.
Hayes worked on energy development, the Deepwater Horizon clean-up efforts, and many other projects, but insiders and press releases issued by the Interior Department over the last four years suggest that Indian projects were of special interest to him, and he took them on with fervor—even ones, like the Cobell trust litigation case and tribal trust settlements, that had stymied others for many years.
Hayes’ work on Indian affairs was so prevalent that some Indian-focused officials say Kevin Washburn, confirmed as Assistant Secretary of Indian Affairs in September of last year, must work hard to regain control of the portfolio that should have been handled by the Bureau of Indian Affairs during the first term of the Obama presidency. Larry Echo Hawk was the Bureau’s head for much of the time, and then Del Laverdure briefly took over after Echo Hawk abruptly left his position in spring 2012 for a high-level position with the Mormon Church.
It’s not clear if Echo Hawk didn’t want more responsibility, wasn’t able to take on more duties due to personal conflicts (his brother, John Echohawk, oversees the Native American Rights Fund, which has been involved in some of the most contentious trust cases against Interior), or whether Hayes and others in the administration didn’t want him to have that power. (Echo Hawk has not responded to requests for comment.)
It is clear that Hayes helped do some great things for Natives. He pushed for unprecedented tribal water settlements, which have delivered millions of dollars to tribes; he worked on tribal energy initiatives, a small number of which have helped some tribes gain an economic foothold in the renewable arena; and he “played an instrumental role in settling the long-standing Cobell Indian trust litigation and overseeing implementation of the settlement, ending 14 years of litigation regarding the Interior Department’s management of trust resources for more than 500,000 American Indians and Alaska Natives,” according to the Interior press release announcing his departure.
The White House likes to trumpet those achievements. The president released a statement to Indian Country Today Media Network on April 30, thanking Hayes for his service: "David's leadership at the Department of the Interior has played an important role in my administration's efforts to expand domestic energy production, including renewable energy as well as America's oil and natural gas resources. His expertise has helped shape our approach to conservation and our efforts to combat climate change, and as the Chair of the interagency working group on energy development in Alaska he has ensured that decisions we make regarding the Arctic are based on the best science. I am also grateful for David's work to help usher in important water rights and legal settlements that will help restore trust and strengthen our relationship with Indian country. I wish him the best in his future endeavors.”
But when questioned on the negative part of Hayes’s Indian affairs legacy, the White House is mum. The negatives include a controversial relationship with Sen. Dianne Feinstein, D-Calif. A National Congress of American Indians draft memo from 2011 said it is “well known” that Feinstein worked with Hayes “in a secret drafting process” for legislation that would limit gaming, especially off reservation gaming, for some tribes. That work was later tied to the Carcieri legislative fix tribal recognition issue that stalled in Congress because some members see an opportunity to limit tribal sovereignty.
Hayes defends his work with Feinstein, telling ICTMN in December 2010 that under administrative policy he was required to respond to Feinstein’s request for drafting services. When asked if his friendship with Feinstein influenced his work, he said, “I think I have a reputation at this department and in Indian country that speaks for itself.”
Intended or not, Hayes’s work with the senator helped muddy a Carcieri fix that would allow all federally recognized tribes to be treated equally under the law. “Senator Feinstein's fixation with the ‘off reservation’ tribal land has created an issue that has had at least two political outcomes: one, the perceived creation of political disagreement that blocks consensus and stymies the formation of policy on Indian land issues in Congress, and two, stops the common sense fixes for Carcieri and [the related case known as] Patchak,” says Joe Valandra, a tribal consultant. “I am not saying Hayes was monolithic on these issues, but his relationship with Sen. Feinstein and his very visible and influential position clearly had an impact.”
While Hayes was its Indian affairs guru, the Obama administration also missed a couple of key reporting deadlines—one on tribal employment and economic development and another on the number of federally recognized tribes. Experts from the department also failed to show up to a congressional hearing on tribal federal recognition. And the Cobell settlement—one of the administration’s jewels—is seen by many in Indian country as flawed because it gives so little to Indian beneficiaries and the separate tribal trust settlements are unequal in their treatment of tribes’ lawyers’ fees, so some less wealthy (and less savvy) tribes have paid a disproportionate share of the costs. Plus, there are new revelations in Inspector General reports about questionable hiring and promotion practices under Echo Hawk and Hayes.
Despite all that, the administration continues to praise Hayes for his dedication to Indian country. When pressed, it points out that many in Indian country are quite pleased with the recent achievements—and some even say that those achievements overshadow any problems. The formerly critical National Congress of American Indians, former Interior staffer Bryan Newland, and Rep. Tom Cole (R-Okla.), a citizen of the Chickasaw Nation, have issued statements that are complimentary about Hayes’s work.
Feinstein also released a glowing assessment of Hayes’s legacy soon after he announced his exit. “Back in 2010, California was facing an especially challenging water year,” the senator said in her statement. “The combination of very dry conditions and an extremely low water allocation had me very concerned about the harmful effects on farmers up and down the state. I will never forget David Hayes and Secretary Ken Salazar coming to my home in Washington on a Sunday morning to work on a solution that would dramatically improve the allocation. David rolled up his sleeves and worked diligently until we had a workable solution.
“This wasn’t the only time I called on David to intervene on behalf of California”—a fact Indian country knows all too well—“And each time I called, he showed a willingness to take action to help… I congratulate David on a job well done, on his distinguished service to our country, and I wish him and his family the best as he embarks on this next phase of his career.”
Valandra says it’s probably a good thing for Indian country that Feinstein will no longer have her friend in a top position at Interior, and it is time for Washburn to grab the reins at Indian affairs so that real progress can be made. “It is my hope that as the new Secretary takes her place, the BIA will be less subject to political hyperbole, and will instead allow Assistant Secretary Kevin Washburn to make decisions based on law and good sense,” Valandra says. “If Washburn is allowed to continue to follow the law and common sense, Indian country will be better off.”