Hilary Tompkins Department of the Interior solicitor

Vincent Schilling

Hilary Tompkins: “I always have in the back of my mind: Will this have an impact on a tribe or individual Indians?”

Hilary Tompkins Shares Legal Hopes for Federal-Tribal Relations

Outgoing Interior Solicitor Says It’s Better to Have Tribes as Friends Than Foes

ICMN recently interviewed Hilary Tompkins, who has served as the top legal brain – the solicitor – of the U.S. Department of the Interior since 2009. A political appointee of President Barack Obama, Tompkins will leave her position at the beginning of the Trump administration, yet she has shaped several legal strategies that she hopes will be lasting and beneficial for Indian country in the years to come.

You are Navajo, and are the first Native person to hold the position of solicitor at Interior, correct?

Yes, that’s right. Proud Navajo!

What did you bring to the position as a strong Navajo woman that has been unique?

I definitely think being a Native person growing up in this country gives you a unique perspective. I often tell folks when I’m meeting with them that almost every single Native person in this country has a story to tell about how the federal government’s policy or laws have affected their lives personally. So when I’m evaluating a legal question [while] representing the Department of the Interior, I always have in the back of my mind: Will this have an impact on a tribe or individual Indians? [I try to] make sure that that question is always raised when evaluating complex legal questions as solicitor.

Do you feel that tribal leaders and citizens might have trusted working with you more because of your Native background?

I think it has been helpful for tribal leaders to know that I have worked in Indian country, that I’m an Indian law expert. I’ve felt very fortunate to have that background when engaging in my role as solicitor. I also think that they knew I would be a straight talker—that I would tell them the options that were available, the pros and cons, and also whether we could proceed in the manner that they were seeking. I’m honest, straightforward with them, knowing that having trust between the federal government and Indian nations is key to solving problems and moving the ball forward. I also want to add that tribal leaders were incredibly supportive of me. And that was key throughout my tenure, because sometimes I had to make tough decisions that sometimes weren’t always aligned with Indian country. At the end of the day, tribal leaders, when I saw them, would give me a pat on the back, would say that they were proud of me and say they supported me in this role. And I really am deeply appreciative of that support.

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You were adopted and grew up in New Jersey, yet ended up in Indian country working on Indian issues as a lawyer—how did that happen?

I owe my connection to my tribe to my adoptive parents. Ever since I was a little kid, they told me I was Navajo. And they made sure I knew about Navajo traditions and culture the best that they could. Ultimately, one of the big reasons I went to Dartmouth was because of the strong Native population there and curriculum. And that helped me connect with my Native identity, and my parents said also that I would always go back to my reservation someday. And I did. They were supportive of me doing that after college. And so it was always in my mind inevitable that I would reconnect with my tribe.

Was it ever difficult for you to be advocating for the positions of the federal government, while also supporting tribes?

I relied on the law and what was intellectually honest in our evaluation of the legal questions before me—that was a big factor. I’m also, as solicitor, the attorney for the entire department, so, in that role, I was always weighing many different statutory missions, regulations, different interests. Having done that over the past seven years, I’ve become very familiar with the need to confront difficult questions, but make the right call based on the law. Sometimes it was difficult, but as long as I had the underpinnings of a sound legal analysis, that is what guided me through those difficult decisions. And I always, no matter what, felt strongly that it was important to tell tribes the nature of our decisions, the reasons why and how we had carefully evaluated and weighed their concerns. I think that it’s really important for federal officials to engage in that consultation before a decision is made, but even after—to explain how we reached the decision.

You know that federal Indian law is by no means settled in many areas; were there ever instances where the federal Indian law might not have been what you would have personally liked to be arguing in favor of?

I knew when I took this position that I would be representing the United States, and sometimes there are positions we’ve taken that are longstanding that have been affirmed by courts, even the Supreme Court. So when I took the oath of office, I said I’d uphold the law of the United States. I took that oath seriously, and I used that to direct my decision-making…. Sometimes I had to support the position of the United States, in certain instances, where the law was very well established.

Indian issues are obviously important to you—was it challenging when the many other areas that you had to focus on as solicitor pulled you away from working on Indian stuff?

Well, as soon as I walked in the door, on the first day, I had the privilege of meeting with all of the solicitor lawyers who are experts in all the vast areas of law that we practice at the department. I feel so fortunate and privileged to have learned new areas of law, like offshore drilling and gas law and other areas of law that I had practice in, like Endangered Species Act law, environmental law and water law. It is something I like to emphasize when talking with Native youth: Just because you’re Native American—it is important to know your history and your culture and your identity—but I also think it’s important to explore those areas that are broader and non-Indian-related specialties. I feel like I am a stronger Indian law lawyer because I know those other areas of expertise. That is something I will really miss when I walk out the door—the really robust, multifaceted legal practice here at the department and all the amazing solicitor experts that we have here who specialize in these highly unique areas of law.

There have been many accomplishments for Indian country during your tenure—what do you think are the most important ones that will be lasting?

Of course I would start with the Cobell settlement. And that led to the settlements with over 100 other tribes. I will always have a place in my heart for those settlements because I think they reset the relationship between the United States and tribes. I also celebrate things that might not be in the news, things that Indian country might not be aware of, but my team of lawyers and I…have worked really hard on internally to reaffirm really important Indian law principles in the work we did every day. These principles are reflected in some of the Supreme Court work we’ve done where we’ve had some landmark important decisions in Indian law, such as the Bryant case, Bay Mills, Nebraska v. Parker, Dollar General, which still stands. And these protect the very important principles of sovereign immunity, of the right of tribes to govern themselves and tribal court jurisdiction, the preservation of reservation boundaries notwithstanding non-Indian settlements, the ability of tribes to govern themselves according to their traditions, the clear expression of Congress and its intent regarding Indian affairs and how we should not support the implicit divestiture of Indian authority…. And, of course, there’s a ton of examples that the public does know about, like Alaska fee-to-trust regulations, the recent cancellation of leases for Badger-Two Medicine, the Indian Child Welfare Act regs, the Native Hawaiian recognition regulation, our involvement with the recent Dakota Access controversy at Standing Rock. So we’ve done a lot of important work that I believe will stand the test of time because it has been reaffirming old principles that have been on the books for literally, some of them, centuries.

Talk more about the Cobell settlement—how difficult was it to achieve?

It was very, very challenging. We had just entered the new administration with over a decade of scorched-Earth litigation, an acrimonious litigation between the parties. There were a lot of wounds on all sides. And it took us sitting in a conference room—myself and some fabulous attorneys from the Department of Justice and opposing counsel—literally for weeks, day after day after day, seeing if there could be a meeting of the minds. As you know, lawyers then have to memorialize that into the written word, and we would spend an extraordinary amount of time trying to reach agreement on a sentence. So it took us an enormous amount of trust and goodwill and patience and commitment on all sides to get that done. And we had our moments where I thought that it was not going to happen. And we were worried that maybe we couldn’t resolve this. We had many moments like that. I remember when, even at the last—there was one final open issue, and if we could not resolve that issue, after about four or five months of negotiating, it didn’t seem like it was going to happen. Thankfully, we had agreement on that issue, but I was worried it wasn’t going to happen at the final hour.

Once the agreement was announced, many people celebrated it, but there were problems and issues that some people raised. What are your thoughts on those problems that happened after the settlement?

We made a conscious effort on both sides to ensure that there was a process for people who did not want to take part in the settlement to opt out. And that was a very, very important component that we thought was critical to ensure that class members had options. And we also provided state-of-art public notice to all class members under the settlement that was truly unprecedented. We wanted to be sure we reached as many class members as possible to let them know what their options were. There were some who objected to the settlement and had their due process in court and had appeals. It went all the way up to the Supreme Court where cert was denied, so I feel like we put in the right mechanisms to allow people to air their concerns.

For those who felt the $3.4 billion wasn’t enough to account for the historical problems involving Cobell, could the number have been higher?

I’m not able to get into the details.

What are you most disappointed that could not be accomplished on Indian affairs during your tenure?

I have to think about that one because I actually feel like we accomplished the things that I thought were important and a priority. I think the one thing that the United States could do more of – and I think we set the stage for with all of these settlements – is more affirmative litigation where tribes are co-plaintiffs with the United States and where the United States stands arm and arm with tribes to defend their treaty rights and their jurisdiction and the protection of their lands and resources. We made some headway on that with a couple of cases…and couldn’t have done it without our great partners at DOJ. I’d like to hopefully in the future see more of that.

A legislative Carcieri fix to the 2009 Supreme Court ruling was desired by many tribes, yet it has not happened to date. Can you explain how the department has worked around that lack of a legislative fix?

That was another issue I had to confront early in my tenure because Carcieri had already been decided when I came on board. The way I approach that is to honor the intent of Congress—which was to reverse the assimilation/allotment policy and restore tribal homelands. The way I looked at it is that a majority of tribes would probably be under federal jurisdiction prior to the year 1934, and, of course, the Supreme Court Carcieri decision said you have to be a tribe under federal jurisdiction in 1934 [in order for Interior to take lands into trust for you], so the way I looked at it was to see what the status was for tribes in this country before 1934 and only if there was a change in that status that was congressional that somehow removed that jurisdiction would that tribe not be under jurisdiction in 1934. So I issued an M Opinion to that effect, and we’ve managed to then evaluate each tribe as they come forward seeking to take lands into trust by looking at their history before 1934 and looking at whether that jurisdiction remained intact in 1934.

The Obama administration has unsuccessfully supported a legislative fix to Carcieri. Do you see it happening anytime soon?

I think it has proven difficult under this Congress, and there will likely be a lot of questions in the new Congress were that legislation to be proposed. I think it’s something that Congress intended when it first enacted the Indian Reorganization Act [in 1934] to have all federally recognized tribes eligible to take lands into trust, but it has gotten weighed down with corollary questions that I don’t think are pertinent to taking lands into trust. I think it will be tough, but I am hopeful that tribes are given the opportunity to restore their homelands. One thing I want to add: the Carcieri test that I developed in the M Opinion has been subject to court challenge on numerous occasions, and we have prevailed due to the good work of my lawyers and DOJ. The proof is in the pudding, as they say.

Was Indian gaming something you had to think much about as solicitor?

Sure, the Indian gaming questions have come before me, but I feel like IGRA (the Indian Gaming Regulatory Act) and Congress’ intent with it has been abundantly clear about what the purpose of gaming is in Indian country. While sometimes there are factually difficult questions, I feel pretty confident about the purpose of gaming, which is to help provide economic opportunities in Indian country, provide a revenue stream for tribes, and it has created some really positive opportunities in Indian country. So I’m supportive of the goals of IGRA and have definitely evaluated those questions in my role as solicitor knowing that there are benefits on the ground in Indian country, which are important.

From what you’ve seen so far, do you think the incoming Trump administration will be able to foster a successful government-to-government relationship with tribes?

I don’t have a crystal ball, so I can’t speculate about what the next administration will do. What I can say is that our experience has been that the better path is to build partnerships with tribes, to have tribes as our friends, not our foes, and to keep working at that trust between our nations. Because when you have that trust, you can do amazing things together.

What’s next for you?

I’m going to get some R & R out on the rez.

This interview has been edited and condensed for clarity.

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