Trump nominee inches closer to top spot at Department of the Interior

Thursday, April 4, 2019  

The Trump administration has been one policy disaster after another, according to tribal leaders, and it's about to get even more rocky with a controversial nominee headed to the top position at the Department of the Interior.

Despite longstanding questions about his ethical behaviors, David Bernhardt is all but certain to be confirmed as the Secretary of the Interior, the government official with the most responsibility in Indian Country. Republicans who control the Senate are making sure of that, by advancing his nomination on Thursday, barely a week after his nomination hearing during which he promoted energy development on tribal lands as "sovereignty" for the first Americans.

"This is what supporting self-determination looks like," Bernhardt, a longtime lawyer and lobbyist for the energy industry, told members of the Senate Energy and Natural Resources Committee last week.

But tribes and their advocates have not been happy with Interior's agenda over the last two years. From a reorganization at the department they still have questions about to a return to the dark days of the termination era, they have seen a slew of setbacks in the nation's capital.

"The very core of this relationship is being challenged," Kitcki Carroll, the executive director of the United South and Eastern Tribes, said at his organization's meeting in Washington, D.C., last month.

Bernhardt, however, has been telling tribes he is turning over a new leaf. He currently serves as Deputy Secretary of the Interior and he has vowed not to include the Bureau of Indian Affairs and the Bureau of Indian Education in the ongoing reorganization at his department, one in which other agencies and offices are being moved to a new "unified" regional system.

"As we listened, it was clear enough that you did not want to be part of that unified region, and you're not," Bernhardt told leaders of the National Congress of American Indians at their executive council winter session in D.C. in February.

Almost two months later, tribes still don't know what that means. They must still interact with other agencies at Interior and they haven't been told how that relationship will change as the restructuring moves forward.

"What is the impact on Indian Country?" Brian Patterson, a leader from the Oneida Nation and a former president of USET, asked of Assistant Secretary for Indian Affairs Tara Sweeney when she appeared before tribes served by the BIA's Eastern Region.

"There are efforts going on about reorganization and we need to know what is the effect," Patterson added as he called on Sweeney to be more transparent with details.

Deputy Secretary David Bernhardt says the reorganization of the Department of the Interior will not change the regions of the Bureau of Indian Affairs and the Bureau of Indian Education. “I can assure you that they will remain intact.” #ECWS19 @DOIDepSec pic.twitter.com/I4tZbuHhRH

— indianz.com (@indianz) February 13, 2019

On another matter, Bernhardt has promised not to move forward with controversial changes to the way in tribes tribes restore their homelands. The Fee-to-Trust Regulations (25 CFR 151), which were announced just two months after he joined the Trump administration, had drawn near unanimous opposition in Indian Country.

“I have no interest in modifying our 151 regulations unless you want them changed so we are not going to go forward with that matter," Bernhardt told NCAI.

Still, tribes -- particularly those whose ancestors were among the first to welcome European settlers -- remain largely in the dark about the land-into-trust process and whether it continues to benefit them in the Trump era. During USET's meeting on March 4, the director of the BIA boasted about the number of acres that had been placed in trust in 2018, only to backtrack when Indianz.Com asked for clarification.

"We had never heard that number before yesterday," Carroll said a day later, even though the number given to tribes was wrong.

A BIA spokesperson has since told Indianz.Com that the correct figures have been shared with USET, whose leaders wanted to know how much of that acreage has been restored to tribes in their region, which spans from Maine to Florida to Texas.

Deputy Secretary David Bernhardt is dropping a controversial land-into-trust proposal that tribes have opposed. “I have no interest in modifying our 151 regulations unless you want them changed so we are not going to go forward with that matter.” #ECWS19 @DOIDepSec pic.twitter.com/TahtDINtjx

— indianz.com (@indianz) February 13, 2019

"I've heard none," said one leader from the Narragansett Tribe, whose ability to follow the land-into-trust process has been forever curtailed as a result of the U.S. Supreme Court decision in Carcieri v. Salazar.

Carcieri has now victimized another USET member. The Trump administration, barely two months after Sweeney came on board, told the Mashpee Wampanoag Tribe, whose ancestors welcomed European settlers to their homelands almost 400 years ago, that it cannot reclaim any of those lands.

The decision -- which Sweeney has said she "walked into" -- reverses one made during the Obama era and marks the first time that the BIA had adopted the premise of Carcieri, that some Indian nations can have trust lands while others cannot. The result has been "catastrophic," resulting in the loss of most of the tribe's law enforcement and court staff and threatening progress at a language immersion school, Mashpee Vice Chairwoman Jessie Little Doe Baird said at a Congressional hearing on Wednesday.

"This creates the very real possibility that our land will be taken out of trust altogether and our reservation disestablished, something that has not happened since the termination era," Baird told the House Subcommittee for Indigenous Peoples of the United States at a hearing in which a bill to fix to Carcieri (H.R.375) was discussed, along with a bill to prevent her tribe's lands from being taken out of trust (H.R.312).

The Trump administration was noticeably absent from the hearing and refused to take a stand on a prior version of the bill. No one brought up the issue to Bernhardt last week, and he did not mention whether restoring tribal homelands was one of his priorities either.

"Through my work over the years at Interior, I have come to know many leading voices in the tribal community, and these interactions have enriched and enhanced my knowledge of tribal culture, heritage, and concerns," Bernhardt said in his opening statement. "True commitment to tribal sovereignty requires the recognition that tribes should be able to responsibly develop the natural resources on their lands."

Besides energy development, Bernhardt pledged to focus on improving public safety in Indian Country, which has been hit hard by the opioid crisis and other dangerous drugs. He briefly mentioned the crisis of missing and murdered indigenous women and said Sweeney was "completely focused" on addressing that issue.

He also said he was "completely committed" to ensuring tribes are consulted about decisions that affect them, singling out Sweeney (Inupiat), who is the first Alaska Native woman to serve as the Assistant Secretary, and Principal Deputy Assistant Secretary for Indian Affairs John Tahsuda (Kiowa) and Deputy Assistant Secretary for Policy and Economic Development Mark Cruz (Klamath) for praise.

"I have an A team and I'll do whatever they ask in terms of helping them," Bernhardt said at his hearing last Thursday.

Bernhardt's vow to keep Indian Country in the loop helped him secure support from at least one Democrat on the Senate Energy and Natural Resources Committee. Sen. Martin Heinrich (D-New Mexico) has been concerned about energy development near Chaco Culture National Historical Park, the ancestral home of a number of tribes.

"I would love to go to New Mexico and visit the site with you," said Bernhardt, who was otherwise noncommittal about reversing course about oil and gas drilling there.

Heinrich, in addition to Sen. Joe Manchin (D-West Virginia), the top Democrat on the committee, were the only members of their party who voted in support of Bernhardt's nomination, which was considered at a business meeting on Thursday. Others were far less impressed.

Sen. Ron Wyden (D-Oregon) said Bernhardt may have "lied under oath" about his matters affecting prior lobbying clients. Considering that former Secretary of the Interior Ryan Zinke was "forced to resign under a self-generated ethical hurricane," he called on the committee to spend more time looking into allegations against the new pick to lead the department.

"I have never had to handle a nomination like this one," said Wyden, a former chairman of the panel and its longest-serving member.

"I think it would be a grave mistake for the committee to move forward before the Inspector General has a chance to formally respond to my request for an investigation," he said, referring to the Office of the Inspector General at Interior.

But Sen. Lisa Murkowski (R-Alaska), the current chair, dismissed the allegations as "new reporting on old allegations." A story in The New York Times, published on Thursday, highlighted a potential conflict in what Bernhardt told the committee about his work for a former client.

"These allegations contain no new information," Murkowski asserted. "This is recycled, it's been re-packaged."

She also said she contacted the Inspector General was told there were "no open investigations" into Bernhardt , who has agreed to recuse himself from matters affecting former clients.

"I would be stunned if they were to be substantiated," Murkowski said of the allegations.

The committee ended up voting 14-6, mostly along party lines except for the two Democrats, to send Bernhardt's nomination to the Senate floor. With Republicans in control of the chamber and eager to install as many Trump picks as possible, it will be all but impossible to stop the confirmation.

During the George W. Bush administration, Bernhardt held key positions at Interior. He was a director of the Office of Congressional and Legislative Affairs, served as counselor to then-Secretary Gale Norton, who was the first woman in the job, and eventually became Solicitor, the highest-ranking legal official at the department.

I am humbled by the President's confidence in me to lead the Department of the Interior subject to confirmation. pic.twitter.com/fdjUX1b7Od

— Acting Secretary David Bernhardt (@DOIDepSec) March 8, 2019

The roles gave Bernhardt a close view of a host of ethical lapses that wound up sending former Deputy Secretary J. Steven Griles to federal prison in connection with a tribal lobbying scandal. Additionally, the era the escalation of the Indian trust fund lawsuit, which resulted in tribes being punished for the late Elouise Cobell's court victories, as well the reversal of a sacred site legal opinion that later derailed the federal court nomination of another one of his predecessors, former Solicitor Bill Myers.

Bernhardt also was on the ground for a series of politically-charged Indian gaming and federal recognition disputes, most of which ended up going against tribal interests. Yet he has managed to make it through without an overt connection to the drama, and has instead portrayed himself as a watchdog within the department.

"Your integrity and ability are assets that should bolster this case for nomination, and not distract from it," Sen. Cory Gardner (R-Colorado) told Bernhardt last week.

Business Meeting to Consider Pending Nominations (April 4, 2019)
Full Committee Hearing to Consider the Nomination of Mr. David Bernhardt (March 28, 2019)

AUDIO: Confirmation hearing for David Bernhardt as Secretary of the Interior (March 28, 2019)
President Trump releases new budget with cuts for Indian Country programs (March 11, 2019)
Top official at Department of the Interior hit with ethics complaint (March 1, 2019)
Tribes remain wary of Trump administration despite apparent concessions on policy disasters (February 21, 2019)
Native leaders deliver rebuke of Trump administration at State of Indian Nations (February 11, 2019)
Mark Trahant: President Trump announces new pick for Interior Department (February 5, 2019)
Indian Country experts warn of gridlock in troubled political climate (February 1, 2019)
Report into 'unprofessional behavior' at Bureau of Indian Affairs (December 18, 2018)
Secretary Ryan Zinke resigns amid 'false allegations' of wrongdoing (December 15, 2018)