Manataka American Indian Council
“INDIANS DON”T KNOW JACK”
The Ghostlady, June 2006
There are many reasons why the secretary of interior should not be given unilateral authority to approve utility rights of way for Indian tribes. The top four reasons are: Jack Abramoff, Secretary Donald Hodel, Secretary Gale Norton and Secretary Albert Fall. And they are only the icing on the cake.
The secretary of interior and high-level officialdom are mired in conflict of interest. Indian tribes’ primary enemies are within the department of interior: Bureau of Reclamation, the National Park Service, Fish and Wildlife and Bureau of Land Management. Policy, Management and Budget is also added to the mix. On a bad day, Indians’ external enemies are also present. They infiltrate the bowels of MIB through the grace and favor of party politics, patronage, cronyism and lucre. The Navajo breach of trust suit is a case in point. At the upper echelons of Interior, it is not what but who you know and what you have done for them. On the worst day, the conflicts of interest, cross and re-cross wiring of interests, shadow groups and influence peddlers are so labyrinthine a score card is needed to simply keep track of the incestuous menagerie.
Jack Abramoff, the infamous lobbyist who ripped off tribes for multi-millions, got access to Gale Norton through now indicted Tom “the Hammer” Delay. Steven Griles, Norton’s second banana, a former lobbyist himself, was openly dubbed “our guy” by kick back king, Michael Scanlon, Abramoff’s cohort in crime. A strange outfit called “creepy” CREA (Council of Republicans for Environmental Advocacy), “[i]t turns out…was a laundry” or suspected to be “by a chain of e-mails from indicted lobbyist Jack Abramoff.” CREA, it is now known, is “an industry front group founded by [former] Secretary of Interior Gale Norton.” It was also a conduit for back door departmental access by Abramoff facilitated by Delay’s office. Abramoff was a member of Delay’s “kitchen cabinet” and raised money for the former congressman through his (Abramoff’s) private charity, the Capital Athletic Foundation.
Among the strangest and ethically challenged aspects of the Abramoff scandal was the deployment of tribal gaming money to pay Christian conservative activist, Ralph Reed, a Bush political advisor and gaming opponent, to work against certain tribal gaming. “Casino Jack,” as Abramoff had come to be known, was “a longtime friend of Reed.” Reed clearly had his uses. If a competitor got in the way of a client, according to Scanlon, they “brought out the wackos.”
Reed is a master at summoning grassroots activists en masse through low tech methods like phone trees. It was Reed’s job to gin up opposition and block whatever target Abramoff identified. Reed however wanted to pretend not to be taking gaming money so “he and Abramoff arranged to have millions of dollars laundered through a series of non-profits.” A strategy similar to that which ultimately triggered the downfall of Delay.
Abramoff also insinuated himself into the fee-to-trust arena writing correspondence for members of Congress who then filed nearly identical objections to trust applications opposed by the lobbyist.
The ultimate perfidy, however, was Abramoff’s and Scanlon’s organization of opposition to the Texas Tigua’s casino resulting in its closure. The pair then subsequently solicited $4.5 million dollars from the Tiguas with the promise of reopening. They did so while contemporaneously receiving $32 million dollars over a three year period from the Louisiana Coushatta. A portion of that jackpot was paid to Ralph Reed to mount a campaign against reopening. They worked both sides of the street adding insult to injury in the process. In “private emails, Scanlon and Abramoff referred to the Tigua as “troglodytes” and “monkeys.” Abramoff, calling the Tiguas “moronic,” wanted “to get his mitts on their money.” A series of hearings were held in the wake of l’affaire Abramoff. Senator Dorgan described Abramoff and Scanlon as lurking in a cesspool of greed. Abramoff and Scanlon were paid $45 million dollars by only four tribes. One northern band said that “no one seems to know what our money was being spent on” so they “ended the costly relationship.”
Abramoff and Scanlon’s antics along with those of CREA raised the ire of Senator McCain who introduced The Reducing Conflicts of Interest in the Representation of Indian Tribes Act on June 27, 2005. Lobbying reform legislation was to be part of the agenda with McCain revitalizing his former campaign financing reform network. He wanted to close what he calls Washington’s “revolving door.”
A culture of corruption, influence peddling and self-dealing has historically permeated the political ranks of one of the oldest departments of government. At various times since the department was established in 1849, that culture has purulently festered into a disease used to harm those to whom a trust responsibility is owed.
From 1921 to 1923, Secretary of Interior Albert B. Fall “acted as his own commissioner.” Fall initiated four major programs: (1) Pueblo relinquishment of land to white squatters, (2) creation of a national park out of a portion of the Mescalero reservation which bordered his Three Rivers ranch for which he had a development project slated, (3) following discovery of oil on the Navajo reservation, issuance of an executive order opening all executive order reservations to exploitation by oil companies under the then recently enacted General Leasing Act of 1920 and (4) speeding up the process by which allottees were divorced from federal control and protection while ordering dispersal of all tribal funds, timber, coal and other minerals among tribal members.
Today’s utility industry request for secretarial unilateral authorization for utility rights of ways is the doppelganger Fall’s third initiative confirming the absolute circularity of policy and political cycles that dominate Indian affairs historically.
Oil was discovered on the Navajo reservation in 1922. Secretary Fall promptly issued a departmental ruling opening all executive order reservations to exploitation by oil companies under the General Leasing Act of 1920. “The effect of this decision was three-fold.” (1) It removed Indians from any control over the leasing of executive order lands and placed control in the department’s General Land Office, (2) It deprived Indians of all but one-third of their royalties, and (3) It placed a cloud of uncertainty over Indian title to executive order lands. It also speeded up the dissipation of the Indian trust estate for the benefit of the department whose policy was assimilation for the primary benefit of third party industries.
Fortunately, the malevolent times began a changing. Fall left office in disgrace under the cloud of scandal without having succeeded in most of his personal anti-Indian agenda steeped in conflict of interest.
The Navajo, however, have remained in the department’s cross hairs and in those of official’s industry cronies as evidenced by Secretary Donald Hodel’s breach of trust to the tribe, an act sanitized by the supreme court and its conservative elite. Appointees since the Reagan era are anti-minority and they filter valuable Indian property rights and concomitant trust protections through a lens of what they perceive as affirmative action-type fluff.
“Secretary Hodel met privately with a representative of Peabody Coal. The Secretary set in motion negotiations that resulted in the tribe getting a lesser royalty rate than had actually been requested by the tribe. Critically, the tribe was not told that the administrative decision (delayed by the Secretary) appeared to be in its favor. The supremes, ever the friends of big business, failed to see what the beef was about…a fiduciary duty (that of the trustee) is the highest standard known in law for which there is virtually no margin for error. The second immutable principle is that it is unthinkable and actionable misconduct for a trustee to self-deal or deal for the benefit of another with whom there is a private relationship at the expense of its ward. Law students who flunk out of school know this.”
The Rehnquist court’s “subjectivist” approach recast law—reflected in the Navajo breach of trust suit and other recent Indian law cases—it developed new theories and generally ignored inconvenient facts “to deliver results consistent with its overarching philosophy that disfavors what it perceives as minority or non-mainstream sectors.” Professor David Getches described the Rehnquist court’s processes as “departing from but not overruling, venerable principles…[creating] a veneer of confusion over a historically complex but consistent body of law.” That result makes “it nearly impossible for tribal and local non-Indian officials to apply the decisions rationally.”
Given the current “termination by accountant” environment that has characterized Indian policy since the Reagan era, it is therefore no surprise that under former conservative Secretary of Interior, Gale Norton, a willing handmaiden of industry and ideological bedfellow of hardcore develop or die advocates, all Third Way apostles,* that Indian Country would witness and experience a gradual reduction of substantive approval power over their resources at both the individual and tribal levels.
First went consultation, which process quickly converted into a system of designing agendas and policies then telling Indians how it was going to be. BITAM is the quintessence of the conservative “consultation” genre. Next came, eliminating the annoying inconvenience of Indian consent for property transactions. That, of course, is separate and apart from not charging, accounting for or collecting revenues due Indian property owners. Third came the evisceration of program functions to reduce the cost of services to Indians but with exorbitant outsourcing of many projects to reported $700-an- hour contractors. The contractors are devoid of knowledge or experience in Indian affairs if the current TAAMS training is any example. It was said in the past that EDS’s sole function was to generate more business for EDS. Meanwhile, Interior’s sole goal was to get out of the Indian business.
The consent-by-the-secretary agenda is not new. In fact, it was the darling of the 1950s termination era. Consent was deemed irrelevant and, in fact, Commissioner Dillon Myer openly stated that his “long range rehabilitation program” aka Termination must proceed “despite tribal objections”. Myer, the secretary’s delegate, hammered tribes into termination using coercive tactics and flat out deception.
A little known fact is that Myer, later called “a little tin Hitler” by Harold Ickes who had championed Myer’s appointment as Indian commissioner, was the fawning pawn of western interests and delegations. They wanted Indians weakened, attorneyless and defenseless so their valuable resources could be acquired easily by the usual array of predatory industry suspects.
Myer’s life line included a celestial array of congressional luminaries. Supporters included Senator “Scoop” Jackson from Washington who was literally called “The Senator from Boeing” and “The Representative from Weyerhauser.” Nevada’s Patrick McCarran (of stream adjudication fame) and his sidekick, George “Molly” Malone wanted to “make Indians people” by introducing a bill “to free them of all their tribal assets within three years.” Carl Hayden and Ernest McFarland of Arizona backed Myer because they were p.o.’d that tribal attorneys won Harrison v. Laveen (1948) that gave Arizona Indians the right to vote.
They were joined in their enmity by Arthur “Vivian” Watkins, known as “the Great Emancipator” (translate: “Terminator”). Watkins was only outdone by Clinton P. Anderson of New Mexico who chaired the Indian Affairs Subcommittee and McCarran, in that order. Anderson was “Dear Clint” to Myer. Anderson represented agribusiness, banking, mining, timber and defense interests and was an ally of McCarran in waging war on the Pyramid Lake Pauites. McCarran’s animosity towards the Pyramid Lake Paiute was pathological. Anderson was also the prime mover against the Taos Pueblo in the Blue Lake controversy.
Myer crippled Indian defenses both strategically as to resources and in court by refusing to approve attorney contracts. “For their own good…these groups must be kept from signing contracts… .” The little tin Hitler crowed about his success in driving tribal attorneys out of business. He called those who defended Indian rights “ a thorn in my flesh.” Disarmed and alone, Myer hammered tribes into accepting termination using coercion tactics and deception. He was aided in that endeavor by a jubilant Senator Watkins who led the termination charge. Watkins initiated it by serving up his own state’s tribes as exemplars. Utah tribes had never been placed on the Bureau’s termination lists. That was irrelevant to Watkins who was on a John Brown-like mission from his personal deity.
During this era, the secretary unilaterally approved transactions for undetermined heirs although probate was a function over which his department determined the rate and speed of processing. The secretary therefore had the power both to probate or not probate cases and thereby vest in himself the ability to approve transactions in lieu of the actual parties in interest.
The new and improved version of using the department’s own processing speed (or lack thereof) to give the secretary unilateral consent over transactions and also actual consent elimination vehicles are present in the so-called American Indian Probate Reform Act of 2004. The devices come with patent dastardly hooks.
AIPRA contains a forced sale provision for less than 5% interests. It is a strict liability provision. Share size, alone, without regard to commercial, mineral, timber or other value is sufficient to permit others to force it out of the entitled party’s hands. Consent is only required of residents on less than 5% interests which is a rare occurrence on fractionated land.
AIPRA also contains provisions that reduce the consent requirement for sales, rights of way and other transactions. The secretary is authorized to sign off for undetermined heirs, an exponentially growing class. What was a modest probate backlog in 1996, around 3,000 cases, exploded to 30,000 in 2005 according to the special trustee. All the while, the department was allegedly spending vast appropriations to upgrade technology and information management systems, hiring the highest staff levels for adjudication and manically reorganizing its probate support processes.
DOI has allegedly “reformed” probate processing three times since Cobell was filed in 1996: High Level Implementation Plan, BITAM and As Is/ To Be. Notwithstanding, DOI accumulated posting backlogs plus probate adjudication backlogs which themselves will become further posting backlogs. Together, the backlogs mean that DOI records are hopelessly out of date and inaccurate. Under such conditions, secretarial consent to transactions which now include both tribal and secretarial acquisition project transactions under AIPRA, leases, rights of way and sales can become a weapon to force a veritable giveaway of valuable assets using aberrant and arbitrary valuation mechanisms. It goes without saying that it is a blatant conflict of interest for the secretary of interior to give consent to a transaction in which he or she is also the buyer. To do so in a situation of known backlog is unconscionable.
If history is any indicator, it is not whether a giveaway will happen but when it will occur. The history of the Five Civilized Tribes and Osage Tribe is testament to the government’s generosity in releasing Indian assets for use by others at fire sale prices. So is the repeated misuse of the Burke Act of 1906, source of forced fees, in conservative assimilationist/terminationist eras. The Pick-Sloan Project of the 1940s on the upper Missouri River reinforces the end justifies the means dynamic that infects departmental actions and decision-making. Certain of the world’s largest earthen dams associated with the project that nearly destroyed over 40 Indian reservations were actually under construction before the tribes were even informed of the project. Both the Army Corps of Engineers and Interior’s Bureau of Reclamation were hip deep in one of the largest land grabs in the history of the country. Indian consent was not deemed necessary.
Today, Indian Country is once again facing a question that should by any rational standard be a dead letter. That question is whether Indian (tribal) consent to taking of their land is required. The answer to that question should be a resounding yes.
The Indian Reorganization Act was intended to end for once and for all the “paternalism and absolutism” that characterized the plenary power era from Kagama to Lone Wolf. However, Indians witnessed a resurrection of rank paternalism in the 1950s. Myer’s ham-handedness resulted in his being drummed out of office once the tribes moved in concert. Having learned an ugly lesson through the carnage inflicted on Indians during the 1950s Termination era, the departmental worm began turning in the late 1960s. Importantly, The Indian Civil Rights Act was amended in 1968 to require Indian consent to state assumption of jurisdiction over Indian lands. Interestingly, the first advocate of Indian self-determination since the IRA was passed was the much maligned Richard M. Nixon. His 1970 self-determination message galvanized Indian Country into a short-lived Golden Age cut short by the “termination by accountant era” that began with the election Reagan in 1980.
The attitude reflected in Nixon’s bold policy message morphed into an era dominated by a single piece of legislation, the Indian Self-Determination and Education Assistance Act of 1975. The act leaves no doubt that paternalism of the 1880s and 1950s variety was no longer an acceptable method of dealing with Indians. Nixon declared termination a failure. He called upon Congress to repudiate the doctrine. Which they ultimately finalized in 1988. Nixon urged a program of legislation that facilitated tribal management of their own affairs with a maximum degree of autonomy.
So what happened?
Indian policy like history is circular not linear. It is, therefore, no surprise that influential third parties, like utility interests, would have every expectation that the secretary of interior in Hodel fashion would be a willing and obedient accomplice in commandeering and then looting Indian resources. These are especially craven times. Lucre is all that matters. Indians, as the Abramoff scandal shows, are still the preferred meat of high rollers and capitalist forces because they are easy prey. Indians don’t know Jack, and as the Tigua episode indicates, they are not skilled in assessing or dealing with the Jacks or jackasses of the world.
The secretaries and officials of the department that is supposed to protect Indians do know Jack. They know him and his type only to well. They have dinner with Jack. They network with his matrix of purchased or paying acolytes and generally make decisions in favor of the moneyed sources who can ultimately do them the most good. Seen in this light, McCain’s bill does not go far enough
It would therefore be not only a mistake but a license to loot to give the secretary of interior, any secretary of interior, the ability to sign off on transactions with third parties without the consent of the tribes, the true owners of the assets. Indian lands are not public lands. The United States owns the naked fee only. Usufruct and the right to use and enjoyment is vested exclusively in the tribal owners. DOI does not and should not have the right to force transactions, like Hodel did, down tribes’ throats to what will inevitably be their disadvantage.
It would be unthinkable for the government to force transactions across the board upon unwilling landowners as a class, much less authorize third parties to sign off on such transactions—especially ones that will be to the legal, pecuniary and cultural detriment of the impacted party or parties. Such action would not even be requested were the owners other than Indians. Unless the government undertakes to do the same thing to all landowners across the nation, including states, it is violating Indians’ rights to equal protection. Standards for dealing with property rights should not be adjustable based upon the pigmentation of the owner’s skin.
“Judge Lamberth [was] one hundred percent correct when he observed that the terrible power of government is never fully revealed until government turns against its people. “Indians and their assets of whatever size and value have not commanded the attention, respect or protection of the government or any entity thereof ever.” The Cobell special master’s report of low ball deals for pipeline companies was met with tried and true departmental tactics: a firestorm of personal vilification. It is a patented Karl Rove tactic trotted out by this administration's executive branch officials to avoid dealing with substance. Drumming the special master off the job did not squelch the issue. A 2004 article in SmartMoney.com wrote that the “administration had detailed knowledge of fraudulent practices but allowed energy companies to cheat impoverished…Indians out of vast sums over dozens of years.”
Apparently, one cannot now describe that which is venally done to Indians in language commensurate with the wrongs committed. Evil, therefore, is not in the wrongdoing but in anyone having the temerity to call a spade a spade. On July 11, 2006 the Court of Appeals for the District Circuit determined that reassignment of the Cobell case away from Judge Lamberth was required. I have read the decision. Basically, it says that the circuit court reversed Lamberth too many times and he used hot language to describe what the government was actually doing. These factors implied that he could not be impartial despite being a trier of fact with the responsibility of weighing and evaluation evidence. Independent attorney assessments of Lamberth, however, rank him as a top notch judge. He was appointed by Rehnquist which in and of itself speaks volumes. No ardent liberal he. It therefore seems that the only sin that anyone is ever held accountable for is acting in a manner that even by happenstance inures to the benefit to Indians.
Was Lamberth biased? I don’t think so. Pissed off, yes, and he didn’t mind saying so. Those who generally appear before him candidly observe that he is no “shrinking violet.” It is important to note that that Lamberth cut his teeth on government improper wire taping cases. According to objective sources, he holds everyone, even the government, to the same standard. The government is no doubt is jubilant about the outcome on appeal. Why shouldn’t it be? Its feet are out the fire.
The court of appeal’s decision of thirty odd pages, although lengthy, is short on weighing and evaluating and deep on conclusion and supposition. The outcome is not completely surprising One must remember that there have been few appointees to the federal bench, at all levels: district court, court of appeals and the supreme court, since Bush Pere who do not come out of the Federalist Society (E.g.’s Roberts, Scalia, Alito, Thomas). It must further be remembered that Gail Norton and Donald Hodel were also members of the group as was Ted Olson of Solicitor General fame.
The agenda of the Federalist Society is hard right. It is very much pro states’ rights and not ardent on what are perceived as minority issues. For a clear perspective of the society, the reader is referred to Martin Garbus’ Courting Disaster. The book reveals in concrete terms why Indians are losing so many cases at the hands of the contemporary judiciary. Separately, Professor David Getches classifies Indian cases as the perfect “crucible” for the development of states’ rights and other political issues that have nothing to do with Indian rights at all. Courting Disaster solidifies Getches assessment. Garbus refers to Seminole v. Florida (1996) as “one of the most stunning states’ rights victories in jurisprudential history.” In that case, the supreme court overlooked a case directly on point, decided only seven years earlier, to embrace a 100-year old case as precedent (that had been repeatedly discredited), to achieve the right result.
Indians have and are entitled to the same protections as all other citizens, and their property rights have the same constitutional protections under the 5th amendment as those of all other property owners. It’s time the government acted like it. The giveaways must stop. It is also time for Indians to recognize and stomp on the carpet bagging Jack’s of the world and their paid for puppets who materialize as political appointees often in the department that deals with public lands. Finally, it is time for the interior department to become a real trustee for Indians, not a shill for those who covet what they have.
Interior does not like or respect its Indian functions but ironically does not want to shed them from its arsenal of duties. The attitude is schizophrenic. The current regime despises performing trust accounting and distribution functions but wanted to control the distribution of proceeds from a lawsuit and settlement that DOI and DOJ fought against, tooth and nail. There is no rhyme or reason to what it does.
In the past, I have written and here repeat a simple proposition. Indian affairs must be removed from the Department of Interior just as it was removed from the Department of War in 1849. An Indian adverse political culture and means to an end ethics have permeated the department since its earliest days. It was present in the treaty making period, in the allotment period, during the administrative era at the turn of the 20th century, in the 1950s termination period and in the termination lite period (implemented but not articulated) that came into vogue with the Reagan administration and which persists volubly to date. It is not fixable with industry oriented interests housed under the same roof as Indians. The promise of later lucrative reward operates like a Siren’s song. Only it’s the Indians who get crushed on the rocks.
Interior is conflict of interest. There is no way its chief official can be trusted not to harm Indians irreparably. The system is not working. Nothing has changed in Indian affairs but the faces of the malefactors. A trustee should not by habit or by inclination be hard wired to harm the ward. That it does so continuously as the Fall, Pick-Sloan, Hodel and Abramoff incidents demonstrate, is proof of “dysconscious racism.” That phrase is defined by indigenous writers as an unconscious and uncritical habit of mind in which inequity and exploitation are accepted as legitimate because alternative visions are simply dismissed. It is a habit of mind so ingrained in Indian affairs that any other state of being is unimaginable to those in charge. The court of appeals took issue with Lamberth’s use of the term “racism.” I don’t care what it is called so long as the process that harms Indians is recognized and named. Whatever it is called, there has to be a better way.
*Third Way advocates perceive the only function of government to be to promote business and its primary job is to get out of the way of business and let market forces dictate their natural results. The current oil crisis is a symptom of that economic philosophy. However, it must be noted that the Darwinian economic philosophy of free marketers is never applied to allow Indians to get the fair market value of their resources as evidenced by the Secretary Hodel-Peabody Coal activities and the 1988 gaming act that was intended to hobble Indians with non-competitive contract terms.
Submitted by Helen RedWing Vinson
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