Analysis

Biden, New Congress Offer Historic Opportunities For Tribes

By Andrew Westney
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Law360 (January 15, 2021, 8:17 PM EST) -- The incoming Biden administration's progressive ambitions, coupled with a newly Democratic Congress, could mean unprecedented opportunities for tribes not only to tackle the coronavirus pandemic, but to kickstart their economic recovery and address long-standing environmental, infrastructure and land issues.

At the moment, Native Americans' most pressing need mirrors the rest of the country's: relief from the COVID-19 pandemic, which President-elect Joe Biden is aiming to provide through a $1.9 trillion program announced Thursday.

But with Rep. Deb Haaland, D-N.M., on tap as the next interior secretary and a broader platform dedicated to fighting climate change, there is now the chance for "a global policy agenda akin to a New Deal for Indian Country," according to Hogan Lovells partner Hilary Tompkins, a Navajo Nation member and former Department of the Interior solicitor in the Obama administration.

"This is a game changer and will really open the door for significant reforms in terms of federal Indian policy," she said.

Biden's "American Rescue Plan" is the first stage of his pandemic relief package, furnishing larger stimulus checks for Americans and funding wider vaccination efforts in collaboration with tribes, states and local governments.

The outline of the plan, which builds on coronavirus relief legislation passed in late December, notes that the earlier bill "included little direct funding to help tribal governments respond to COVID-19."

The new bill would put $20 billion toward backing tribal governments' response to the pandemic, including "the resources they need to obtain sufficient personal protective equipment, increase access to clean water and electricity, and expand internet access so that children can learn remotely and more families can obtain basic health care through telemedicine."

Native Americans "are nearly twice as likely to die from COVID-19 than white Americans," and the funding "will help to reduce stark and persistent inequities in COVID-19 transmission, hospitalization and death, while improving economic conditions and opportunity," according to the plan.

The proposal is "exactly what is needed to address the pressing needs of Indian Country on all fronts," said Akin Gump Strauss Hauer & Feld LLP partner Donald R. Pongrace, adding that it both funds tribal governments and targets specific areas of need, including vaccinations and reopening schools.

The Trump administration has been "very standoffish" in working with tribes like the Gila River Indian Community, for which Akin Gump serves as outside counsel, said Pongrace, who heads Akin Gump's American Indian law and policy group.

"So far, largely what tribes have got is some money and almost no guidance, no cooperative planning," he said. The Biden administration is "going to be more engaged because of the way they're planning to structure their tribal outreach and interaction. Unlike this administration, there actually will be somebody who has tribal responsibility, we hope at a special assistant level, but certainly on the Domestic Policy Council, which is where it was under Obama."

The difficulties and possibilities facing the Biden-Harris administration in some ways mirror those faced by the incoming Obama administration the last time Democrats controlled the presidency and both houses of Congress, attorneys say.

"Because of the collapse of the economy, there was that challenge right there in 2009 that had to be addressed right out of the gate," said Jenner & Block LLP partner Keith Harper, a Cherokee Nation citizen who served on the Obama transition team and as U.S. ambassador and permanent representative to the United Nations Human Rights Council from 2014 to 2017.

With Biden coming in, "it's different, but it's the same, because now we have the pandemic challenge and it requires us to build a stronger economy," Harper said.

The Obama administration's promotion of the American Recovery and Reinvestment Act of 2009, which Biden oversaw, put direct funding for tribal projects in place, which should serve as a model for the Biden administration in backing broader economic recovery from the pandemic, Harper said.

When she was at DOI during the Obama administration, Tompkins said the department's focus was on repairing the "broken" ties between tribes and the federal government — particularly by resolving tribal trust lawsuits, most prominently through the $3.4 billion Cobell settlement in 2009.

"Now, the work that was done under the Obama administration to restore that relationship provides a good foundation and institutional knowledge about what else needs to be done," she said.

One major difference in the new administration is the groundbreaking nomination of Haaland for interior secretary. Haaland is a Pueblo of Laguna member who would become the first Native American Cabinet secretary in history, and her path to confirmation was largely cleared with wins by Democrats Raphael Warnock and Jon Ossoff in the Jan. 5 Georgia senatorial runoff election.

The interior secretary has substantial powers in tribal matters through the department's agencies, including the Bureau of Indian Affairs. "To have somebody who has such deep understanding of Native communities and has been such a forward-leaning advocate, you can see why it's so widely celebrated," Harper said.

"She's also someone who has the chops to do the job," he added. "There's no question she understands — whether it's environmental issues, land use or Indian affairs — she understands, soup to nuts, the policy initiatives and priorities of the Department of the Interior."

Haaland's environmental commitment will be key for tribes, according to Pongrace.

"The interesting thing about Indian Country that I've experienced is that it's generally viewed as a vast repository of things others want to go get," Pongrace said. "The federal government in the past has been a facilitator of that, not to the benefit of tribes, but to the benefit of the companies that have sought to go get it. That's been largely their role through the decades, and I think she'll do a lot to change that approach."

Further, the nomination of Xavier Becerra for secretary of the Department of Health and Human Services, which includes the Indian Health Service, could also benefit tribes, given Becerra's relationships with them from his time as California attorney general, Harper said.

Biden could get going quickly with executive orders on tribal issues, including his already-declared intention to scrap President Donald Trump's decision to drastically shrink the Bears Ears monument, which is sacred to several tribes in Utah, Harper said.

And in litigation, tribes can expect the new administration to rethink the government's stances on many prominent projects, including the Dakota Access pipeline, which has faced strong opposition from the Standing Rock Sioux Tribe and others.

"Everybody thinks of DAPL as being a symbolic fight over a particular oil and gas piece of infrastructure, but it's just the tip of the iceberg in terms of the number of pipelines that traverse Indian Country," Pongrace said. "It's going to be revolutionary if and when tribes can actually dictate their own destiny about what it will cost to get a right-of-way across their property."

And the Biden administration is likely to turn sharply away from "a sort of silent veto" the Trump administration gave to non-Indian communities to block the government from taking land into trust for tribes, said Harper.

With Biden eyeing an economic rebound with help from the new Congress, infrastructure will be another major priority for tribes, from broadband funding to roads and facilities.

"Indian Country has an infrastructure deficit that's been estimated to exceed $1 trillion by comparison to surrounding communities, and that infrastructure deficit has to find a way to be resolved," Pongrace said. "The change in control gives us more opportunities to be bigger-picture than we were before."

Yet there are also many smaller-scale bills that "have been bottled up" by [Senate Majority Leader Mitch] McConnell for years," he added. "All this accumulated, pent-up demand for small bills is going to burst forth."

Bills to provide more reliable funding for Murdered and Missing Indigenous Women programs, to extend renewable energy opportunities on tribal lands, and to promote tax reform could be ripe for passage, according to Tompkins.

Yet getting that legislation enacted may take a change to the filibuster rules, as soon-to-be Minority Leader McConnell and other Republicans could still block legislation with more than 40 GOP senators in the chamber.

But there will likely be willingness from some on the Republican side, including on the Senate Indian Affairs Committee, to work across the aisle, said Harper.

In addition, Senate control could help confirm Biden judges, including nominations to chip away at the paucity of Native Americans on the federal bench following Obama's 2014 appointment of U.S. District Judge Diane Humetewa, a member of the Hopi Tribe, who serves in Arizona.

With a friendlier Congress in place, tribes might even bag an especially long-sought prize: a move following the U.S. Supreme Court's 2009 decision in Carcieri v. Salazar to allow all federally recognized tribes to have land taken into trust, instead of just those that were "under federal jurisdiction" when the Indian Reorganization Act was enacted in 1934.

Biden promised to back a "Carcieri fix" prior to his election, seeking to overcome more than a decade of futility in Congress.

"If there's any situation that could pass, this would be the one," Tompkins said.

--Editing by Philip Shea and Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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