How A Biden Presidency Could Shape Native American Law

Law360 (October 30, 2020, 7:49 PM EDT) -- Native American tribes could find themselves working more with the federal government in litigation and facing off less and could reap the benefits of clean energy initiatives if Democratic presidential candidate Joe Biden wins Tuesday's election, while tribes would look for a more active role influencing policy than they've had under the Trump administration, attorneys say.

The two candidates recently introduced competing agendas for tribes, with Trump promoting public safety, infrastructure and health improvements, while Biden revealed a much more detailed plan covering many of the same areas but also saying he would stimulate clean energy projects to combat climate change and protect tribal cultural sites.

With Biden leading in most polls, attorneys who represent tribes say that the former vice president could restore the close relationship tribes had with the administration of President Barack Obama while confronting new challenges, including the pandemic.

Tribes are likely to see a "reversal of fortune" from the Biden administration in litigation, particularly connected with energy, after the Trump administration has fought tribes in court on projects like the Dakota Access pipeline and the Pebble Mine in Alaska, according to Rob Roy Smith, the managing partner of Kilpatrick Townsend's Seattle office and co-leader of its Native American practice group.

"A Biden administration can only be better for Indian Country than the Trump administration has been," said Smith. "I think you'd see an administration that's more open to meeting with tribal governments, more protective of sovereign rights, and certainly more protective of the environment."

Besides being "hostile to tribal interests" in the energy arena, the Trump administration has been "largely absent in Indian Country policy," according to Lloyd Miller of Sonosky Chambers Sachse Miller Mielke & Brownell LLP.

That includes abandoning the annual White House Tribal Nations Conference, introduced by Obama to meet with tribal leaders, which Biden has said he will bring back in his first year in office.

"You can't have a policy that is sensitive to Indian Country if you don't talk to Indian Country," Miller said.

The number one priority for the election winner has to be combating the COVID-19 pandemic, attorneys say.

The Biden-Harris "Plan for Tribal Nations" calls for "a decisive public health response to COVID-19," declaring that Biden will "partner with tribal nations and elevate the voices of tribal public health experts" and "ensure wide availability of free testing and eliminate cost barriers to preventative care and treatment for COVID-19 — ensuring Native Americans are not left behind."

Trump's "Putting America's First Peoples First Plan," which declares that tribes will be "forgotten no more" in a second Trump term, says the administration will "ensur[e] that COVID-19 vaccines and therapeutics are prioritized for tribal communities."

But while the pandemic is "a top priority," it's also "indicative of a lot of other underlying issues that need to be fixed in Indian Country," from broadband, to allow tribal members to better use telehealth services, to infrastructure needs, including providing clean water on reservations, said Hogan Lovells partner Hilary Tompkins, a Navajo Nation member and former U.S. Department of the Interior solicitor in the Obama administration.

Trump's most prominent accomplishment for tribes may be in public safety, including the November creation of a task force to reduce the high rates of murdered and missing Native American women in the country. And the U.S. Department of Justice has "beefed up resources" for Alaska tribes' public safety, Miller said.

Biden's own stance on public safety emphasizes empowering tribes to take a larger role in law enforcement, pushing for the reenactment of the Violence Against Women Act to give tribes criminal jurisdiction over more crimes committed by non-Indians. A reauthorization bill, which has been passed by the House but stalled in the Republican-controlled Senate, will be "one of [Biden's] top legislative priorities," according to his plan.

Where the candidates' goals diverge most significantly may be in the field of energy and natural resources, attorneys say.

Trump's plan calls for tribes to benefit from the administration's overall deregulatory agenda, but that has put the administration at odds with tribes in numerous lawsuits, perhaps most prominently early on in the administration when Trump canceled planned talks with tribal leaders and called off a stringent environmental review of the Dakota Access pipeline before issuing a project easement in 2017.

"Tribes have been forced to litigate because they simply can't get an audience with folks in D.C. to have meaningful conversations on why these Trump administration policies are detrimental for Indian Country," Smith said.

A potential Biden administration might be more open to joining tribes' suits rather than opposing them, Smith said, such as a pending challenge to the 2019 weakening of Obama-era water quality standards by the U.S. Environmental Protection Agency in which he represents the Quinault Indian Nation.

Tompkins, who served as DOI solicitor from June 2009 through the end of the Obama administration, said that Biden would be likely to undo many of the Trump's administration's reversals of Obama policies, including restoring the Bears Ears national monument created by Obama in 2016 after it was reduced by Trump.

Many such moves would be "self-executing under a Biden administration, because I think these policy initiatives are an outgrowth of very fundamental principles in Indian law and policy," and tribes won't have to spend a lot of time educating the administration on the issues involved, she said.

Alaska tribes were hit with another whiplash between administrations when Trump's DOI solicitor in July 2018 withdrew an Obama-era opinion by Tompkins that the department could take land into trust for Alaska Natives — a move Miller said he is "confident" Biden would reverse.

Biden could also find a larger role for tribes in land management as part of his "30 by 30" commitment to conserve 30% of land and water in the U.S. by 2030, Tompkins said.

Co-management of lands by tribes was "something we only flirted with under the Obama administration but didn't adopt a formal policy for," Tompkins said, "but in this age of concern about climate change and conservation, there needs to be a conversation with tribes about how to be partners."

Tribes that want to be part of energy development could benefit from Biden's clean energy plan and climate change initiatives, as he has pledged to spend $2 trillion on clean energy infrastructure and "setting a goal that disadvantaged communities — including Tribal communities — receive 40% of overall benefits," according to his plan.

Tribes with rural reservations could be good candidates for large-scale wind and solar energy projects, but the problem is getting the energy to bigger markets, said Eric Henson, a Chickasaw Nation citizen and research fellow with the Harvard Project on American Indian Economic Development.

High-voltage electric transmission to support clean energy expansion that reaches Indian Country would be "incredibly expensive," Henson said, "but so was the interstate system."

"The public good is probably large enough to bring a major infrastructure push," he said, while tribes will also look for the federal government to connect infrastructure work with broader-based economic development on reservations.

Yet as with fossil fuel projects, it's vital that tribes "are able to say no" to clean energy projects that impact their lands, Henson added.

Biden would also have the chance to restaff the U.S. Department of the Interior, its Bureau of Indian Affairs and other agencies to serve tribes better, attorneys say.

While Biden has promised to back a congressional "Carcieri fix" of the Supreme Court's 2009 decision in Carcieri v. Salazar to allow all federally recognized tribes to have land taken into trust, it would be "far more meaningful for tribes" just to have the DOI "willing to work with tribal governments to facilitate land acquisition," Smith said.

And following the crippling December 2018-January 2019 federal government shutdown — which drew fire from national Native American organizations that partisan infighting in the federal government had cost tribes federal funding — the U.S. Office of Management and Budget should establish a Native American desk to ensure tribes don't lose out, according to Tompkins.

Biden's ability to execute his ambitious plans for tribes and the rest of the country if elected will hinge on the Democratic Party finding a way to swing the Senate while keeping control over the House. That includes further COVID-19 relief — currently at an impasse in Congress — as $8 billion in tribal government funding in the CARES Act is set to expire at the end of 2020.

The CARES Act funds are "really just a drop in the bucket for what tribal governments need to respond to this ongoing pandemic," said Smith.

"There's just a huge disconnect between Treasury, the president, the Senate and the House as to what needs to happen," he added.

But having had that money specifically directed to tribes in the March law may help them in any upcoming bill, as "Congress is now getting accustomed to thinking about tribal communities as discrete communities that must be targets," rather than expected to see funds filter down from states and cities, according to Miller.

With the election on tap, Smith believes a Biden administration will benefit tribes more than the last four years under Trump, "but tribes can't just settle for better."

"There's going to be a need to keep pushing the next administration to do more for Indian Country than has ever been done before, because there's never been a greater need," he said.

--Editing by Rebecca Flanagan and Alyssa Miller.

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