Kevin Washburn, the Interior Department’s Assistant Secretary – Indian Affairs talked to tribal leaders and attendees October 29 at the United South and Eastern Tribes annual meeting at the Eastern Band of Cherokee Indians’ casino resort in North Carolina. After his presentation, he talked to Indian Country Today Media Network. The interview took place almost exactly a year after his appointment and first interview with ICTMN.
How was the shutdown?
The frustrating thing about the shutdown is it came right at my one-year point in the job. Things that I hoped to accomplish in one year – and would have accomplished – are now coming out later. That’s frustrating. It’s not nearly as frustrating as people not getting paychecks so I try not to whine too much. …
And as you indicated [in the USET meeting] it wasn’t just the two weeks [of the shutdown]; it was leading up to it and after as well.
Yeah, we spent weeks and weeks preparing for it. You have to figure out who was going to stay, which jobs meet the technical definition of an imminent threat to life, health or safety and we tried to read it broadly so we could have as many people, and it’s a legal requirement so we had lawyers checking everything we did. …
So you were doing that instead of working…
Exactly. It messed up most of three weeks and weeks before preparing and weeks after trying to get back up to speed.
So. … Bay Mills has been the hot topic here at USET and I know the federal government at the Supreme Court’s request recommended that the court deny but they took it up anyway. Can you weigh in on that and any role [Interior] might play?
Well, I can’t talk about a matter in litigation. I can say, I think, that I regret the Bay Mills Tribe has put us in this position. That’s probably the most that I can say.
Tax reform is another big issue in front of Indian country, What’s your take on the reforms that are being put forward?
We’ve got a role to play here and it’s mostly an advocacy role. We don’t run the Treasury Department but we can advocate with the IRS for tribes or with Congress, if there’s a bill. I’m not sure if they’d ask us to testify. … But we are monitoring things and trying to figure out how my office can be helpful to tribes as they deal with a multitude of tax issues. We know that they are important.
And related – so many tribal leaders are saying Indian country funding should not be a budget line item, should not be subject to discretionary funding cuts, that the funding is a debt to Indian country through treaty obligations. Can you talk about that?
Well, let me say I understand what they’re saying because the work they do is so important and we underwrite much of the work they do. It undermines the trust responsibility when they aren’t funded as they deserve to be funded or expect to be funded. The sequestration sort of pulled the rug out from under people because they were counting on a certain amount of money and then ultimately after sequestration hit the outcome was, you’re expecting this amount of money and you’re going to get 5 percent less.
And that’s a lot.
It is a lot when you’re talking about programs and jobs and that sort of thing and it came at the very end of the fiscal year – October 1 – when the government shut down and so that caused additional problems too because we couldn’t get money out when the government shut down. We had real limitations on what we could do during that time so for those tribes that were really, really hurting the shutdown exacerbated the problem.
How does the treaty obligation get addressed?
That would have to be addressed by Congress. And we need a budget! They just keep enacting these continuing resolutions and there’s not a heck of a lot of planning that goes in when you just do repeated continuing resolutions. It would be good if Congress went back to regular order, held hearings and passed budgets based on what they learn in the hearings and what the president has submitted and what they bring to the table – that’s really where we need to be to be sure that tribes are adequately taken care of in the budget process so that the trust responsibility can be met. It’s been a long time since Congress has passed a budget.
About Carcieri, you said in the meeting that Interior is fighting around 15 lawsuits [challenging Interior decisions to take land into trust for various tribes] – what’s to stop any of those lawsuits from circling back to the Supreme Court either in Patchak or these Carcieri challenges that you’re fighting?
I suppose it’s possible. We’re trying to find administrative solutions to the problem and so we can’t administratively solve Carcieri. On Patchak, we can be helpful but we can’t fully solve the problem. …
and you’ll be sued, right, whatever you do?
Absolutely. We are the defendants along side tribes in many of those actions because it’s our land into trust.
What was your response to the Veronica Brown case?
That case was a disappointment to all of us in my office and so it’s caused us to want to find ways to be helpful in that context to improve the child welfare process. We have a set of guidelines and a set of regulations relating to the child welfare act that were drafted right after the Indian Child Welfare Act was passed in 1978 and they really haven’t been revisited since that time.
Are they for implementation?
That’s right. They address implementation, they address some of the terms in the law and that sort of thing. So we’ve started informally asking people what changes might we make that could help and so we’ve got some people who are anxious to look at that question. That was another thing, by the way, that got cut because of the government shutdown. We were supposed to be at the National Congress of American Indians meeting holding a listening session on just this matter with hopes that we would get some really good ideas that we could take forward. That didn’t happen because we were prohibited from traveling and so we didn’t have the listening session and we can’t find a good opportune moment like that again for a few months. But we need tribal input on that because we don’t have a whole lot of expertise on child welfare matters because, frankly, it’s handled very much at the tribal level and in interaction with states and all we do is provide guidelines that we haven’t changed in 30 years. Our wish is to take a look at those guidelines but we need expertise so we really need to be consulting with tribes to get their feedback.
What kind of stuff [is there] in the guidelines?
The guidelines sort of explain how we thought at the time ICWA should be implemented. ICWA provides some clear legal standards but it doesn’t provide much explanation so we filled in the gaps with out guidelines, but we have to have learned something in this 30-some-odd years and so. … We don’t have the power to overrule the Supreme Court but we have the power to come in behind them and try to fix things so they work better. … and so that’s what we’d like to do with the Baby Veronica case.
And what was your response to the whole “Redskins” issue especially with President Obama weighing in?
I think what President Obama said was spot on. If people are offended by the name of the team, why not change it? It’s only football! The name of the team is far less important than the players on the team! It’s an entertainment activity, it’s football and when I say it’s only football keep in mind I grew up in Oklahoma and I went to the University of Oklahoma and I’m a big football fan. But nothing about it should be designed to offend. It’s too easy to fix that kind of problem. It just seems like low-hanging fruit. I just don’t understand the intransigence in refusing to fix this problem.
Finally, how are you liking it so far and are you eager to get back to the university?
I get to work with great people, committed people. I enjoy the work, I love serving tribal leaders, which I feel is my job, but I have to say during the government shutdown I did have that moment that I know a lot of my employees had where I thought, what am I doing here? I could be doing something productive right now. … I know it was demoralizing for all of my employees and it was demoralizing for me too, but I love the work and I really am still enjoying it. This can be a hard job. When [USET President] Brian Patterson introduced me, he said he’d heard this was the second hardest job in government after general counsel at the CIA or something like that! It’s gotten even harder actually – doing sequestration and cutting tribal budgets 5 percent, going through the shutdown. I wish I was Assistant Secretary during the ARRA [American Recovery and Reinvestment Act of 2009 or the Recovery Act, a stimulus package aimed to save and create jobs almost immediately, that was enacted by the 111th U.S. Congress in February 2009] years when they gave us tons of money to give away! But I enjoy the work and the work we do is exceedingly important and I just want to do it so there’s been some frustration around that.