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ICT interview with Assistant Secretary Kevin Washburn at BIA

Assistant Secretary Kevin Washburn. Photo from Bureau of Indian Affairs

Indian Country Today publishes part three of an interview with Assistant Secretary Kevin Washburn, the head of the Bureau of Indian Affairs:
Last year, you mentioned that around 15 lawsuits had been filed challenging land-into-trust decisions based on the Carcieri ruling [the 2009 Supreme Court ruling that said the Interior Department secretary doesn’t have the authority to take land into trust for tribes not under federal jurisdiction in 1934 when the Indian Reorganization Act passed]. Have any of those lawsuits moved forward and have there been any new ones challenging the administrative solutions that you've been using?

I don’t think we've had a challenge to our Patchak Patch. Litigation is sometimes like watching paint dry. It often moves very, very slowly and there haven’t been any dramatic developments in any of those cases. What's happening is there are certain communities in the United States – Oneida, Wisconsin, is one of them – where controversy erupts if we take land into trust for a tribe. In some places, a city, county or state may sue us, whether it’s a sensible suit or not. In some cases, it may simply be reactionary. And there are a few tribes that are struggling with that kind of relationship with the county or city in which they sit. The Interior Board of Indian Appeals (IBIA), our internal administrative courts process, has several cases pending. Then there are cases where it’s not so reactionary; they’ve got a particular legal theory or something that gives them a specific concern and some of these may be legitimate. There's a range of reasons, but there are certainly a lot of cases, a lot of challenges to land-into-trust decisions in some communities, and those are being litigated. The Big Lagoon case was argued out in the Ninth Circuit en banc and that case may very well shed light on some of the issues with regard to Carcieri.

How much of your time is spent addressing those unresolved trust issues?

I view my entire job as basically making sure we live up to our trust responsibilities. I always characterize resolving trust issues as mistake correction. We have a lot of different trust initiatives, such as the buyback program where we’re trying to buy back fractionated interests. That’s been a big part of the job. We’ve been focusing on that quite a bit. Another untold story is trust litigation settlements with tribes. We started with Cobell – and Cobell got a lot of attention – but we have now settled more than 80 lawsuits with Indian tribes, and the money that's been involved in those settlements is well in excess of $2 billion. That’s money going into Indian country to tribes for settlement of litigation. Settlement has changed the whole dynamic. When I talk to my colleagues who were at the Department in the past, both during the previous administration, George W. Bush, and even in the Clinton administration, there seems to have been a bunker mentality in some respects: They were trying to serve Indians, and at the same time, litigating against them. That’s really an impossible way to do the job. And for 15 years with Cobell, and all these other tribal cases too, we’ve had that kind of situation. Interior was in an untenable position. It’s a big deal that we settled Cobell and 80 trust litigation cases. We've also completed several huge water rights settlements. All told, adding together the Cobell settlement, the 80-plus tribal trust settlements, and the approved water rights settlements, this will end up bringing more than $8 billion into Indian country over time. So that's a big deal.

Get the Story:
BIA Head Kevin Washburn Speaks to ICTMN About Bay Mills and the Need to Resolve Water Rights (Indian Country Today 11/17)

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