President Donald Trump speaks at the Department of the Interior headquarters in Washington, D.C., on April 26, 2017. On the left is Secretary of the Interior Ryan Zinke. On the right is Vice President Mike Pence. Photo: U.S. DOI

Law | National | Politics | Trust

Top Interior nominee contradicts President Trump on 'race' and tribal programs

Friday, May 19, 2017

President Donald Trump is wrong about federal funding for Indian programs, according to one of his own nominees.

Trump drew alarms earlier this month when he described -- incorrectly -- a tribal housing program as one based on "race." His so-called signing statement, which was attached to a $1 trillion spending bill, did not make any mention of the federal trust and treaty responsibility.

But David Bernhardt, whom Trump has nominated to serve as the second-in-command at the Department of the Interior, is in a position to know better. As an attorney and former Bush administration official with direct experience in Indian law and policy, he said the issue has long been settled by the courts.

"I'm really at a loss to speak to that particular matter," Bernhardt said during his confirmation hearing to serve as Deputy Secretary of the Interior on Thursday. He told Sen. Martin Heinrich (D-New Mexico) that he hadn't actually seen the signing statement in question.

But he quickly explained that Congress is in no danger of violating the U.S. Constitution by passing laws that benefit Indian Country. Tribal housing programs, for example, have been on the books for "quite a while," he said.

"I'd say that the courts have sustained a variety of programs that have been lawfully enacted," Bernhardt told the Senate Committee on Energy and Natural Resources.

"I take the trust responsibility seriously," Bernhardt said later during the hearing.

Indianz.Com on SoundCloud: David Bernhardt Confirmation Hearing May 18, 2017

Bernhardt's comments fall in line with those of his potential boss. Secretary Ryan Zinke, who worked on tribal issues when he served in the U.S. House, has repeatedly vowed to respect tribal sovereignty.

Regarding energy development, for example, Zinke said his "job is to make sure that if you want to, to get out of your way so you can do it, to be helpful, to be the advocate in your corner, so sovereignty is a word that has meaning."

"And consultation is not a last minute idea," Zinke said at the National Tribal Energy Summit earlier this month.

But by merely raising doubts about the legality of tribal programs, Trump is embracing a tactic that has long been used by anti-Indian organizations, conservative groups and some Republican lawmakers to prevent Congress from taking action. During the presidency of George W. Bush, for instance, the Indian Health Care Improvement Act was held up for nearly a decade because questions about "race" clouded the debate.

It's a message that is clearly troublesome for tribal leaders. With agencies like the Bureau of Indian Affairs and the Indian Health Service already suffering from underfunding, they fear that Trump's words will be used against them as lawmakers draft future funding bills.

David Bernhardt, President Donald Trump's nominee for Deputy Secretary of the Interior, is described as an avid hunter. Photo: U.S. DOI

"Despite making gradual progress in its economic development efforts, the Rosebud Sioux Tribe experiences an overwhelming level of 'unmet need,'" Lisa White Pipe, a council member for the Rosebud Sioux Tribe said on Wednesday during a hearing on Indian Country's priorities for future funding bills.

"However, this is not 'unmet need' -- it is unmet treaty obligations," White Pipe continued in her testimony to the House Appropriations Committee. "The federal government has a fiduciary trust responsibility under the Fort Laramie Treaty of 1868 to provide adequate resources to the Rosebud Sioux Tribe."

Should Bernhardt be confirmed by the Senate, he would be responsible for upholding those kinds of responsibilities. He touted an endorsement from the Southern Ute Tribe, whose reservation is based in his home state of Colorado, as evidence of his commitment to work with Indian Country.

"I take the consultation requirement seriously," Bernhardt said.

And if Bernhardt is confirmed, he would only be the second member of Interior's top leadership team with Senate approval. Zinke, who joined the department in early March, has been working with an "acting" slate of officials for more than two months now.

"I look forward to moving your name quickly through the confirmation process," said Sen. Lisa Murkowski (R-Alaska), who chairs the Energy and Natural Resources Committee. "I think Secretary Zinke has a big job in front of him and he needs a team and I think that you can be a valuable asset to that team."

Senate Committee on Energy and Natural Resources Notice:
Nomination hearing of Mr. David Bernhardt of Virginia to be Deputy Secretary of the Interior (May 18, 2017)