David Bernhardt is seen at his confirmation hearing to be Secretary of the Interior on March 28, 2019. Photo: U.S. Department of the Interior

'Foxes guarding the hen house': Trump nominee confirmed at Indian Country's most important agency

WASHINGTON, D.C. -- A former energy industry lobbyist who has promoted mineral development as "sovereignty" for Indian Country easily won confirmation as the new leader of the Department of the Interior, the federal agency with the most responsibilities in tribal communities.

By a vote of 56 to 41, the Senate on Thursday afternoon. approved David Bernhardt to serve as Secretary of the Interior. Three Democrats, plus one Independent, broke ranks and joined their Republican colleagues in finalizing what was otherwise a controversial nomination.

"Republicans want to install a former oil lobbyist to head the Department of Interior because, in Trump's administration, it is nothing but foxes guarding the hen house," Sen. Ed Markey (D-Massachusetts) said in remarks on the Senate floor ahead of the final vote.

Markey pointed to the administration push to open the Arctic National Wildlife Refuge (ANWR) in Alaska to energy development as a sign of the dangers facing Indian Country. Under Bernhardt's leadership, he said Interior plans to turn a place held sacred by the Gwich'in people into a "drilling playground."

Sen. Ed Markey (D-Massachusetts): 'Foxes guarding the hen house'

"Let's just imagine gushing oil poisoning the habitat of magnificent creatures like polar bears and caribou and snowy owls and the arctic fox, rigs and pumps threatening the ancestral homeland of the Gwich'in and Inupiat peoples, which they call the sacred place where life begins," Markey said, referring to the Gwich'in name for the area -- Iizhik Gwats'an Gwandaii Goodlit.

But Sen. Lisa Murkowski (R-Alaska) said Native people in Alaska want Bernhardt in charge of their interests. The Inupiat people who live in ANWR and whose corporate entities own land and mineral rights there long supported exploitation of their own resources.

"I know that David Bernhardt understands that," Murkowski said on the floor as she cited a letter of support from the Alaska Federation of Natives, the largest and most representative organization of its kind in the state. "He has been a good partner for Alaskans."

Development in ANWR, which is moving quickly through the environmental review process at Interior, isn't the only issue of concern in Indian Country, though. Since the start of the Trump administration in January 2017, tribal leaders and their advocates say decisions are being made at the department without their input and against their wishes.

Sen. Lisa Murkowski (R-Alaska): 'A good partner for Alaskans'

Bernhardt, who served as Deputy Secretary of the Interior since August 2017, has attempted to roll back some of those controversial initiatives. Speaking to tribal leaders in February, just days after President Donald Trump announced his nomination via Twitter, he said he was going to put an end to the Fee-to-Trust Regulations (25 CFR 151).

“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 said of a proposal that tribes believe would have made it all but impossible to restore their homelands.

Bernhardt, however, has not said what will happen to a different directive which requires all off-reservation homelands applications, no matter what the intended purpose, to be handled by political officials in Washington, D.C., adding another hurdle to an already burdensome process. Just a month ago, the director of the Bureau of Indian Affairs, which is part of Interior, confirmed that the policy is still in place, more than two years after it was adopted without tribal consultation or public notice.

"The only thing that has changed is that off-reservation fee-to-trust has been pulled into the central office for processing and approval," Darryl LaCounte, a citizen of the Turtle Mountain Band of Chippewa Indians who serves as the director of the Bureau of Indian Affairs, told tribal leaders on March 4.

A slew of other policy developments at Interior have also been described as disasters for Indian Country. They include:

• A move to reorganize all bureaus, agencies and offices at Interior into a "unified" system of 12 regions. The proposal would do away with the existing regions of the BIA, implicating treaty rights and the way in which tribes do business with the department. As Deputy Secretary, Bernhardt has told tribal leaders that the BIA won't be included in the restructuring but information about the decision hasn't been forthcoming from Washington.

• The withdrawal of a pro-treaty rights legal opinion that was formulated in the wake of the #NoDAPL movement against the Dakota Access Pipeline. The Trump administration put the opinion on hold at the same time it approved the infrastructure project over the objections of tribes. The opinion was evenutally rescinded altogether even after a federal judge ruled that the pipeline approval process was flawed. The matter remains under litigation.

• A decision to scale back the Land Buy-Back Program for Tribal Nations to a smaller number of reservations. Tribes that were left out of the new push weren't told about the action before the announcement. The Trump administration also won't commit to finding a way to extend the funding for ongoing and future land consolidation efforts. The money is due to run out within the next couple of years.

• A refusal to approve gaming agreements for the Mashantucket Pequot Tribal Nation and the Mohegan Tribe despite pledges to do so, including one made directly by former Secretary Ryan Zinke, who resigned after facing questions about his role in the matter. A federal grand jury has looked into Zinke's handling of the debacle, including whether he lied about a meeting in which he told the leaders of the tribes, along with the governor of Connecticut, of his intentions. The meeting, which took place on Mohegan homelands in June 2017, has been described to Indianz.Com by multiple sources. The gaming agreements have since been approved, but only after the tribes initiated litigation.

• A failure to follow through on regulations that would boost tribal economies by addressing state and local taxation on their lands. As Deputy Secretary, Bernhardt told tribal leaders that he was still open to the rule as of October 2017. But a document circulating within Interior and described to Indianz.Com by those who have seen it indicates that the update to the so-called Indian Traders rule was removed from an internal priority list after Bernhardt joined the department and before he made his remarks to tribal leaders.

• A decision to dismantle the Bears Ears National Monument despite strong support from Indian Country, followed by another directive to limit tribal involvement in an area in Utah where ancestral villages, sacred sites, burial grounds, gathering sites and other important places of worship and pilgrimage are located. The matter is being litigated in federal court amid questions about energy companies influencing Interior's recommendation to dramatically reduce the boundaries of the monument.

• A failure by the department to fully support the loan guarantee program at the Bureau of Indian Affairs. As Deputy Secretary, Bernhardt refused to clear up a legal issue that had some within Interior convinced the government would be able to walk away from loan guarantees -- worth tens of millions of dollars -- that were promised to tribes, according to advocates who were told of the dispute. BIA staff was able to work with legal officials to resolve the matter but the department has since proposed to eliminate the program in its fiscal year 2020 budget.

Indianz.Com Video by Kevin Abourezk: David Bernhardt on Indian Trader Regulations

• A decision to halt all homelands applications in the state of Alaska, another development made without tribal consultation or public notice. The action was taken a day after the Senate confirmed Assistant Secretary for Indian Affairs Tara Sweeney, who is from the state, but before she was sworn into her post at the department. The Solicitor at Interior also rescinded an opinion that affirmed the ability of tribes in Alaska to follow the land-to-trust process, even though they secured a court victories in favor of their rights.

• The legal official who rescinded the pro-treaty rights opinion as well as the Alaska land-into-trust opinion has since been nominated to serve as Solicitor at Interior. Daniel Jorjani took both of those actions in his role as Principal Deputy Solicitor, a position which did not require Senate confirmation. His wife, Aimee Jorjani, is on track to securing approval to serve as Chair of the Advisory Council on Historic Preservation, an independent federal agency that deals closely with tribal cultural and historic resources.

• Another decision affecting Alaska, this one to re-examine the way in which tribes gain recognition of their governments under the Indian Reorganization Act. During a consultation session in December, a senior political official at the Bureau of Indian Affairs admitted that the department was told by the White House to take up the initiative, again without prior notice.

• A proposal for the Bureau of Indian Affairs to stop issuing Certificates of Indian Blood (CDIBs) that was quickly questioned by tribes across the nation. Freedom of Information Act requests submitted by the Galanda Broadman law firm indicate the proposal surfaced within the agency without so much as a paper trail.

• A decision to rescind a homelands application for the Mashpee Wampanoag Tribe, whose ancestors were among the first to welcome European settlers nearly 400 years ago. The move paves the way for the tribe's reservation to be taken out of trust, something that hasn't happened since the disastrous termination era. As Deputy Secretary, Bernhardt has told tribes that the department is constrained by a restrictive U.S. Supreme Court decision and another top official has attempted to undermine a pro-tribal legal opinion on the matter. The Trump administration, overall, has been silent on a Congressional "fix" to the Carcieri v. Salazar decision despite it being a long-standing priority of Indian Country.

Indianz.Com Video by Kevin Abourezk: David Bernhardt at National Congress of American Indians 2017

According to National Congress of American Indians President Jefferson Keel, affirming the the trust and treaty responsibility of the United States requires an "Interior Secretary [who] doesn’t just pay lip service to tribal sovereignty, but upholds it in practice."

"The federal government’s trust responsibility is not discretionary," Keel said during his State of Indian Nations address in February.

Despite the policy debacles of the last 27 months, Bernhardt's supporters have repeatedly called attention to his years of experience at Interior. During the George W. Bush administration, he held a number of key positions , including director of the Office of Congressional and Legislative Affairs and counselor to then-Secretary Gale Norton, who was the first woman in the job.

Bernhardt eventually became Solicitor, the highest-ranking legal official at the department, an office that has played a key role in the Indian Country actions seen as affronts to the government-to-government relationship between tribes and the federal government.

"In fact, there are few others who have the kind of experience that he has that qualify him for Interior," Sen. Cory Gardner (R-Colorado) said on the Senate floor earlier on Thursday. "He has extensive insights on Western water policy, natural resources policy, Indian affairs, just to name a few. "

Quoting from a letter submitted by a state employee in Colorado, Gardner said: "David Bernhardt is an honest man who puts all his cards on the table and keeps his word."

Sen. Tom Udall (D-New Mexico): 'Too slanted toward private interests'

But Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, said he looked at Bernhardt's record and came to the conclusion that he isn't the "right individual" to carry out the government's obligations to the first Americans. He pointed to the the ethical questions that have been raised in having a former lawyer and lobbyist run the department whose decisions affect his past clients.

"Bernhardt has not demonstrated he has the necessary independence from his former clients,” Udall said on the Senate floor. “He’s shut out scientists, Native Americans, conservationists, and the American people. He’s tangled in conflicts."

With Senate confirmation at hand, Bernhardt will serve as the 53rd Secretary of the Interior. In addition to the BIA, he will oversee the Bureau of Indian Education and the Office of the Special Trustee for American Indians.

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

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