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

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Lucky seven? New leader of Department of the Interior already under scrutiny

Tuesday, April 16, 2019

By Acee Agoyo

WASHINGTON, D.C. -- The first warning arrived on Thursday. Just a few hours after David Bernhardt was confirmed as the leader of the federal agency with the most responsibilities in Indian Country, an email announced he was being sued.

According to one faction of the California Valley Miwok Tribe, the new Secretary of the Interior -- aided by the Bureau of Indian Affairs -- was infringing on the sovereign nation's inherent rights.

“David Bernhardt and the BIA are allowing non-tribal individuals, who we believe are casino developer funded, to hold a secretarial election to make themselves members of our tribe and pursue their own agenda," Silvia Burley, who has previously been recognized as the legitimate leader of the tribe, said in the missive.

“If this election goes forward it will trample on tribal sovereignty and ultimately set the precedent that non-tribal individuals can take control of tribes across the country," Burley warned.

A day later, the federal judge assigned to the case didn't seem as alarmed. At the conclusion of a hearing on Friday, he denied Burley's request to stop the secretarial election, and the BIA was allowed to finish collecting ballots on Monday.

But the dispute is far from over. Now that the BIA is moving forward despite questions about the election, attorney Peter D. Lepsch said Burley will continue to fight for a role in determining what happens to her people in central California.

"The BIA should know better," Lepsch told Indianz.Com after the hearing in the nation's capital. "The actions they are taking set potentially an enormous precedent and threaten internal tribal matters."

A February 2019 distribution of the Food For Tribal Families Program. Mildred Burley, pictured here, serves as director of the program for the California Valley Miwok Tribe.

Bernhardt, too, should know better, according to critics in Congress. The same day the secretarial election concluded, two key Democrats announced that the new Secretary of the Interior, who has repeatedly presented himself as model of ethical behavior, was being investigated by his own agency for ethical lapses.

In a letter sent to Rep. Betty McCollum (D-Minnesota) and Sen. Tom Udall (D-New Mexico), the Office of Inspector General at the Department of the Interior confirmed that it was looking into complaints against Bernhardt. Not just one complaint, either, but seven of them.

"We will conduct our review as expeditiously and thoroughly as practicable," Deputy Inspector General Mary L. Kendall told McCollum, who chairs the House subcommittee in charge of Interior's funding and Udall, who serves as vice chair of the Senate Committee on Indian Affairs and is the top Democrat on the McCollum's counterpart panel in the Senate.

The seven complaints largely focus on allegations that Bernhardt, a longtime lawyer and lobbyist who joined the Trump administration 18 months ago, made decisions about former clients in his role as Deputy Secretary of the Interior. During his confirmation process for that position, and again for his new one, he pledged he would not do so.

With a spectator in a swamp creature mask sitting just a couple of rows behind him, Bernhardt said on March 28: "I have implemented an incredibly robust screening process to ensure that I don't meet with former clients or participate in particular matters involving specific parties that I have committed to recuse myself from."

Mystery solved? The Trump administration disappeared Bryan Rice, former director of the Bureau of Indian Affairs, almost a year ago without so much as an explanation. Then, at today's confirmation hearing for David Bernhardt to be Secretary of the Interior, this happened ... pic.twitter.com/cx2ZlcTZkI
— indianz.com (@indianz) March 28, 2019

Interior employees, in fact, know that Bernhardt has carried around a list of former clients as part of his effort to avoid matters affecting entities that paid his bills when he was in the private sector. But they also know it contained dates that indicated when he would able to able to participate in certain matters, a timing issue he alluded to in his first ethics letter on file with the department.

"He's the ultimate swamp creature," one tribal advocate said in reference to Bernhardt's need to maintain such a list. A second person who does business with Interior also has been told about the dates on the document, which The Washington Post reported was the size of a "small card."

Bernhardt's allies, though, aren't troubled by the allegations. Sen. Lisa Murkowski (R-Alaska), the chair of the Senate Energy and Natural Resources Committee, dismissed them as the work of "well-funded groups that are working very hard, very energetically against his nomination."

But Murkowski, who also chairs the Senate subcommittee in charge of Interior's funding, the one where Udall is the highest-ranking Democrat, made a statement that has since turned out to be incomplete in light of the new developments.

"We were told that there are no open investigations into Bernhardt," Murkowski said on April 4 as she advanced the nomination to a final vote on the Senate floor, one in which almost every Democrat voted against confirmation.

In addition to McCollum, a former co-chair of the Congressional Native American Caucus, and Udall, who won't be seeking re-election, other Democrats requested investigations into Bernhardt. Sen. Ron Wyden (D-Oregon), Sen. Mazie Hirono (D-Hawaii) and several other colleagues received similar letters on Monday that cited the "seven complaints."

Outside groups -- maybe well-funded, maybe not -- also lodged complaints. One was the Campaign Legal Center, a non-partisan watchdog.

“The story of David Bernhardt is a classic story of the problem with lobbyists passing through Washington’s revolving door," Delaney Marsco the group's ethics counsel, said on Monday after receiving its own letter referencing the "seven complaints."

During the George W. Bush administration, Bernhardt held a number of key positions at Interior, 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.

He 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.

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

'Lip service' at the Department of the Interior

Since the start of the Trump administration in January 2017, tribes have endured a series of policy debacles at the Department of the Interior, an agency that includes the Bureau of Indian Affairs, the Bureau of Indian Education and the Office of the Special Trustee for American Indians. 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. The Office of Inspector General opened an investigation into the matter a year ago but no conclusion has been reported to the tribes.

Access to our public lands has been a priority for this Administration,
which is why it was wonderful to celebrate the restoration of fishing and recreational access at Fletchers Cove on Friday! pic.twitter.com/8C5ZeRx0pB
— Secretary David Bernhardt (@SecBernhardt) April 15, 2019

• A controversial proposal to revamp the fee-to-trust process in which tribes restore their homelands, making it more difficult for them to do so. As Deputy Secretary, Bernhardt told tribes in February that the department was not going to move forward with the initiative due to widespread tribal opposition. However, a separate policy that imposes additional hurdles on off-reservation land-into-trust applications remains in place, according to a senior BIA official.

• 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.

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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