Focus on Indian Law

Historic Appointment of Tribal Citizens in Biden Administration May Increase Tribal Participation in Federal Policymaking

By Kirsten Matoy Carlson

Kirsten Matoy Carlson is a professor of law at Wayne State University. She is a leading authority on federal Indian law and legislation. Her interdisciplinary, empirical research focuses on legal advocacy and law reform, with particular attention on the various strategies used by Indian nations to reform federal Indian law and policy effectively. It has been funded by the National Science Foundation and the Levin Center at Wayne Law. Carlson serves on the State Bar of Michigan Standing Committee on American Indian Law and is a fellow of the American Bar Foundation. She earned a Ph.D. in political science and a J.D. from the University of Michigan and was a Fulbright Scholar in New Zealand. © 2022 Kirsten Carlson. All rights reserved. American Indian and Alaska Native Nations have engaged with non-Indigenous governments since contact.1 As sovereign governments, they understand the importance of relationships with other governments, especially the United States. The impact of federal Indian laws and policies on tribal governments and American Indian and Alaska Native communities cannot be overstated. The federal government has historically constrained tribal sovereignty through policies of dispossession, assimilation, relocation, and termination.2

American Indian and Alaska Native Nations have used different strategies to influence the federal government over time. They have gone to war, engaged in treaty-making, petitioned Congress and the president, protested, occupied federal land, exercised treaty rights, litigated, or used various combinations of these strategies to protect their sovereignty and resist encroachments on their lands and rights.3

Tribal governments have a new source of access and influence in the Biden administration, as President Biden has appointed an unprecedented number of tribal citizens to positions within his administration.4 For the first time, tribal governments have representation across numerous departments and agencies in a presidential administration. Groups often gain influence and representation when members of their communities are elected or appointed to positions within the government, so the Biden administration may provide new advocacy opportunities for tribal governments.5

For the first time in U.S. history, tribal citizens will lead the U.S. government in its government-to-government relationship with American Indian and Alaska Native Nations. This leadership reflects the priorities established by the Biden administration to guide the federal-tribal relationship. These priorities include upholding the trust responsibility of the United States to tribal nations, strengthening the nation-to-nation relationship between the United States and Indian tribes, and working to empower tribal nations to govern their own communities and make their own decisions.6

President Biden’s appointment of tribal citizens to positions within the U.S. Departments of Interior, Health and Human Services, Agriculture, Energy, and Transportation; the U.S. Environmental Protection Agency; and the U.S. Army Corps of Engineers is part of his efforts to meet these priorities.7 Tribal citizens have never served in many of these posts in the past. Their appointments may give them influence over policies that tribal governments have sought to influence through diplomacy and lobbying8 but not as governmental insiders. Recent studies show that government officials frequently engage in advocacy and “comprise more than 40 percent of the advocacy universe.”9 As congressional staffers and advisors to the White House, tribal citizens have shaped transformative federal laws, including the Indian Self-Determination and Education Assistance Act10 and the Indian Gaming Regulatory Act.11 Tribal citizens may now similarly affect federal policy in new roles as executive branch officials.

For the first time, tribal citizens hold several key leadership positions within the Department of the Interior.12 Deb Haaland, a member of the Laguna Pueblo, made history when she became the first American Indian to lead the agency as the Secretary of the Interior.13 She will command an agency staffed with many tribal citizens. Larry Roberts, a well-respected lawyer and citizen of the Oneida Nation, served as chief of staff for the department from April to November 2021.

Tribal citizens and experts in federal Indian law will represent the Department of the Interior legally.14 Former University of Washington law professor Robert Anderson, of the Bois Forte Band of Chippewa, has been appointed as the solicitor for the Department of the Interior.15 Three of his six deputy solicitors are also tribal citizens:

• Anne Marie Bledsoe Downs, Winnebago Tribe of

Nebraska, deputy solicitor for Indian affairs

A fourth, former University of Colorado law professor Sarah Krakoff, deputy solicitor for parks and wildlife, is an expert in federal Indian law.

Biden’s Native American Interior appointments extend beyond the solicitor’s office. He has appointed the former president of the Bay Mills Indian Community, Bryan Newland, as the assistant secretary-Indian Affairs (ASIA).17 Rose Petoskey, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, will provide legal advice to Assistant Secretary Newland as his senior counselor. Tribal citizens will also join Assistant Secretary Newland’s team. Wizipan Little Elk, Rosebud Sioux Tribe, has been named the principal deputy assistant secretary, and Joaquin Gallegos, Jicarilla Apache Nation and Santa Clara Pueblo, is the special assistant to the ASIA.18 Danna Jackson, a Salish and Kootenai descendant, serves as counselor to the director of the Bureau of Land Management.

Similar to other recent presidents, Biden has named tribal citizens to the Department of Health and Human Services. Tribal citizens have often been appointed to the Department of Health and Human Services because the U.S. government has undertaken obligations to provide American Indians with adequate health care in treaties and under its trust responsibility to promote the physical, mental, and spiritual health of tribal communities.19 Elizabeth Fowler, a citizen of the Comanche Nation, has accepted a key leadership post in the department as the acting director of the Indian Health Service.20 Her team includes several other tribal citizens.21

Biden has greatly expanded the role of tribal citizens in the executive branch by appointing them to posts in four other agencies (Agriculture, Energy, the Environmental Protection Agency, and Transportation) and the U.S. Army Corps of Engineers. Three tribal citizens will serve in the Department of Agriculture. Heather Dawn Thompson, a citizen of the Cheyenne River Sioux Tribe, serves as director of the Office of Tribal Relations;22 Janie Hipp, a Chickasaw Nation citizen, is the general counsel; and Zachery Ducheneaux, another citizen of the Cheyenne River Sioux Tribe, is the administrator of the Farm Service Agency. Biden also named JoAnn Chase, a citizen of the Mandan, Hidatsa, and Arikara Nation, as the director of the American Indian Environmental Office at the Environmental Protection Agency;23 Wahleah Johns, a citizen of the Navajo Nation as director of the Office of Indian Energy in the Department of Energy; Nez Perce citizen and activist Jaime Pinkham as an advisor to the U.S. Army Corps of Engineers;24 and Arlando Teller, a citizen of the Navajo Nation, as deputy assistant secretary for tribal affairs in the Department of Transportation.

In addition to his appointments of tribal citizens to positions within several federal agencies, President Biden has filled the White House with tribal citizens. His White House staff includes Elizabeth “Libby” Rodke Washburn, a citizen of the Chickasaw Nation, senior advisor on Native American issues; Matt Dannenberg, a citizen of the Bad River Band of Lake Superior Chippewa, senior associate director of the Presidential Personnel Office; and PaaWee Rivera, Pueblo of Pojoaque, associate director of Intergovernmental Affairs and Public Engagement.

The service of so many tribal citizens in key positions in the White House and across executive branch agencies may increase tribal representation and access to the federal government. Public officials frequently solicit the views of, and bring stakeholders into, the policymaking process.25 Policy developments favorable to Indian nations have occurred when members of Congress and the White House have engaged tribal leaders and organizations in the past. For example, the Nixon White House relied heavily on the National Council on Indian Opportunity in crafting the self-determination policy,26 and Senator Abourezk relied heavily on American Indian participation as the chair of the American Indian Policy Review Commission, which led to many of the federal policy developments in Indian Affairs over the past four decades.27 Never before, however, have tribal citizens been in so many positions across executive branch agencies and departments, and thus, been in positions to facilitate participation by American Indian and Alaska Native Nations in policymaking in so many areas.

Access often leads to influence.28 The appointment of an unprecedented number of tribal citizens in the Biden administration presents tribal governments with multiple opportunities to build relationships with government officials in six executive branch departments and the White House. Tribal governments succeed politically by building relationships with governmental actors over time.29 Through these relationships, tribal advocates may influence policymaking by gaining governmental support and developing commitments to long-term incremental plans for achieving and implementing policy change.30

The appointment of a record number of tribal citizens in the Biden administration also provides departments and agencies with an opportunity to reconsider their relationships with tribal nations and Native communities. The federal government has a trust responsibility, based on treaties, statutes, and the course of dealings between the United States and tribes, to support tribal self-government and economic prosperity and to protect tribal lands, assets, and resources. Every department and agency within the executive branch has a duty to fulfill the trust responsibility and consult with American Indian and Alaska Native Nations.31 In the past, departments and agencies have often undermined tribal sovereignty by failing to consult with tribes, trying to confiscate tribal lands, destroying tribal fisheries and other resources, or undermining tribal cultural practices.32 The presence of tribal citizens may encourage departments and agencies to rethink the past and work to build better relationships with tribal governments. 

Endnotes

1Kirsten Matoy Carlson, Lobbying as a Strategy for Tribal Resilience, 2018 BYU L. Rev. 1159, 1168 (2019); Daniel M. Cobb, Continuing Encounters: Historical Perspectives, in Beyond Red Power: American Indian Politics and Activism since 1900 57, 58 (Daniel M. Cobb & Loretta Fowler eds., 2007); Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017). 2David H. Getches et al., Federal Indian Law: Cases and Materials 167-246 (7th ed. 2017). 3Kirsten Matoy Carlson, Lobbying Against the Odds, 56 Harv. J. Legis. 24, 29-30 (2019); Carlson, supra note 1, at 1168-1172. 4Lynda V. Mapes, Biden Appointments, including Nez Perce fisheries champion, bolster Native American Presence in Federal Government, The Seattle Times (Mar. 6, 2021), https://www.seattletimes.com/ seattle-news/environment/biden-administration-appointments-

including-nez-perce-fisheries-champion-bolster-native-americanvoices-in-federal-government/. 5Richard Witmer & Frederick J. Boehmke, American Indian Political Incorporation in the post-Indian Gaming Regulatory Act Era, 44 Soc. Sci. J. 127-145 (2007); Rufus P. Browning, et al., Protest is Not Enough: A Theory of Political Incorporation, 19 PS: Political Science and Politics 576-581 (1986); Rufus P. Browning, et al., Protest is Not Enough (1994). 6Biden-Harris Plan for Tribal Nations, https://joebiden.com/ tribalnations/ (last visited Feb. 18, 2022). 7Jenna Kunze, More Native Americans Named to Key Posts in Biden Administration, Native News Online (Feb. 16, 2021), https:// nativenewsonline.net/currents/more-native-americans-named-tokey-posts-in-biden-administratio; Kevin Abourezk, Native Women Land Key Leadership and Policy Roles in Biden Administration, Indianz.com (Feb. 5, 2021), https://www.indianz.com/ News/2021/02/05/native-women-land-key-leadership-and-policyroles-in-biden-administration/. 8Tribal governments report lobbying and testifying before congressional committees on a wide range of issues, including but not limited to youth, claims, culture, economic development, education, environmental regulations, gaming, energy development, health care, housing, federal recognition of Indian groups, lands, transportation, taxation, and natural resources. Kirsten Matoy Carlson, Rethinking Legislative Advocacy, 80 Md. L. Rev. 960, 986993 (2021); Carlson, Lobbying as a Strategy for Tribal Resilience, supra note 1, at 1177-78; Carlson, Lobbying Against the Odds, supra note 3, at 71. 9Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why 13 (2009). 10E. Fletcher McClellan, The Politics of American Indian SelfDetermination, 1958-1985: The Indian Self-Determination and Education Assistance Act 121-160, 220-262 (1988) (Ph.D. dissertation, University of Tennessee, Knoxville) (on file with author) (noting the role of White House advisors and congressional staffers, including Forest Gerard, in crafting the ISDEAA). 11Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 Ariz. St. L.J. 99 (2010). 12U.S. Dep't of the Interior, Who We Are, Interior Organizational Chart, https://www.doi.gov/whoweare/ orgchart (last visited Feb. 18, 2022). 13Lydia Wang, Here’s Why Rep. Deb Haaland Is Such an Important Choice for Biden’s Cabinet, MSN (Feb. 17, 2020), https://www.msn. com/en-us/news/politics/here-s-why-rep-deb-haaland-is-such-animportant-choice-for-biden-s-cabinet/ar-BB1c1g8f. 14Description of the duties of the Office of the Solicitor, U.S. Dep’t of the Interior, Office of the Solicitor, https:// www.doi.gov/solicitor (last visited Feb. 18, 2022). 15Jenna Kunze, Joe Biden Adds Several Native Americans to Administration, Native News Online (Jan. 26, 2021), https:// nativenewsonline.net/currents/joe-biden-adds-several-nativeamericans-to-administration. 16U.S. Dep’t of the Interior, Office of the Solicitor, Organizational Structure, https://www.doi.gov/solicitor/ organization-structure (last visited Feb. 18, 2022). 17Kirsten Matoy Carlson, Bay Mills President’s Indian Affairs Appointment Will Transform Relationships, Detroit Free Press (Sept. 18, 2021), https://www.freep.com/story/opinion/ contributors/2021/09/18/bay-mills-indian-affairs/8368381002/. 18U.S. Dep’t of the Interior, Interior Department Welcomes New Biden-Harris Appointees (Oct. 13, 2021), https://www.doi.gov/pressreleases/interior-department-welcomesnew-biden-harris-appointees. 19U.S. Dep’t of Health and Human Servs., Indian Health Service, Agency Overview, https://www.ihs.gov/aboutihs/ overview (last visited Feb. 18, 2022). 20U.S. Dep’t of Health and Human Servs., Indian Health Service, Key Leaders, https://www.ihs.gov/aboutihs/keyleaders (last visited Feb. 18, 2022). 21Id. 22Press Release, U.S. Dep’t of Agric., U.S. Department of Agriculture Announces Heather Dawn Thompson as Director, Office of Tribal Relations (Jan. 25, 2021), https://www.usda.gov/media/ press-releases/2021/01/25/us-department-agriculture-announcesheather-dawn-thompson-director. 23U.S. Env’t Prot. Agency, EPA Announces Additional Biden-Harris Appointees (Feb. 2, 2021), https://www.epa.gov/ newsreleases/epa-announces-additional-biden-harris-appointees-0. 24Mapes, supra note 4. 25Matt Grossmann, The Not-So-Special Interests: Interest Groups, Public Representation, and American Governance 91 (2012); Alan R. Parker, Pathways to Indigenous Nation Sovereignty: A Chronicle of Federal Policy Developments 14-17 (2018) (describing how Senator Abourezk designed the American Indian Policy Review Commission to ask Indians what to do about the issues). 26McClellan, supra note 10, at 123-130. 27Parker, supra note 25, at 14-17, 21-25, 45. See also George Pierre Castile, Taking Charge: Native American SelfDetermination and Federal Indian Policy, 1975-1993, at 34-37 (2006). 28Frank R. Baumgartner & Beth L. Leech, Basic Interests: The Importance of Groups in Politics and Political Science 137-38 (1998) (discussing the relationship between gaining attention for an issue and influence); Baumgartner, supra note 9, at 69-75 (explaining how one of the biggest obstacles faced by advocates is lack of access and attention to issues). 29Emma R. Gross, Contemporary Federal Policy Toward American Indians 82-85 (1989); Laura E. Evans, Power from Powerlessness: Tribal Governments, Institutional Niches, and American Federalism 6-7 (2011); Carlson, supra note 1, at 1168-1172. 30Evans, supra note 29, at 6-7. 31Exec. Order No. 13175, 3 C.F.R. § 13175 (2000) (Consultation and Coordination with Indian Tribal Governments); Presidential Memorandum of Nov. 5, 2009 (Tribal Consultation); Presidential Memorandum of Jan. 26, 2021 (Tribal Consultation and Strengthening Nation-to-Nation Relationships). 32Mapes, supra note 4.