In it, but not of it. TPM DC
Rep. Raúl Grijalva (D-AZ), the top Democrat on the House Committee on Natural Resources, is demanding the two officials testify before Congress about whether the reassignments were politically motivated.
“It’s no coincidence that those workers were sent to other functions separate from the responsibilities they had regarding land issues and Native American issues,” Grijalva told TPM. “It’s a way to take away institutional memory. It’s a way to take away the expertise about the history of the issue and the definition of tribal sovereignty.”
A review by TPM found that 11 of the 33 officials reassigned last summer under Interior Secretary Ryan Zinke were Native American — a potential violation of both federal anti-discrimination laws and the agency’s own Indian Preference rules. The Inspector General’s report released Wednesday prompted additional charges from Democrats that the staffers may have been reassigned because of their race or their political ideology.
Cason chaired the department board that carried out the June 2017 reassignments. There’s no evidence that Bernhardt, who was confirmed to his post the following month, was involved — though DOI calendars released following a Freedom of Information Act request show that in the months leading up to his appointment, he attended many meetings at the agency with Cason and other members of the department board that carried out the reassignments.
Once he joined the bureau, Bernhardt took a leading role in defending the reassignments, writing a memo arguing that they allowed for “the transfer of fresh management concepts across bureaus and offices.” In March, he wrote in a letter to the Inspector General that he would “continue to use [senior personnel] reassignments robustly as a management tool.”
The Interior Department did not respond to TPM’s questions about Cason and Bernhardt’s roles in the reassignments or the agency’s rationale for the disproportionate impact on Native American employees.
“It’s an Indian problem”
Both Bernhardt and Cason’s past work at DOI involved clashes with Native interests.
The historic Cobell settlement, reached under the Obama administration in 2010, allocated billions of dollars for tribes as restitution for decades of mismanagement and embezzlement of royalties from Indian land held “in trust” by the federal government. After the deal was finalized, Obama’s Interior Department moved swiftly to use the money to help Native American tribes re-purchase and consolidate more than two million acres of land that had been broken up and sold over time. Several of the Native American officials reassigned last year, including former Bureau of Indian Affairs (BIA) Directors Bruce Loudermilk and Michael Black, had helped implement the settlement.
In contrast, the Interior Department under previous administrations took a much more antagonistic approach to the Cobell lawsuit, originally filed in 1996. Both President Clinton’s Interior Secretary Bruce Babbitt and his successor Gail Norton, who served under President George W. Bush, were held in contempt of court — Norton for failing to turn over records and for misrepresenting the government’s dealings with Native American tribes.
“Interior has chosen to behave almost as though the [Indian land] trust fund were a toy, one that it need not share with anyone else, one that it can abuse and mistreat if it wants to, and no one can tell it differently,” wrote Reagan-appointed U.S. District court judge Royce Lamberth in 2005, in one of a series of blistering opinions about the agency under Bush.
At that time, Cason was Associate Deputy Secretary and Bernhardt was the solicitor general at DOI. Under the Obama administration, Cason left government to work as an energy consultant, while Bernhardt became an oil and mining lobbyist. Both returned to the DOI’s political leadership under President Trump.
Byron Dorgan, a Democrat who served as a U.S. senator for North Dakota from 1992 to 2011, grilled Cason in multiple hearings during the Bush administration about the DOI’s treatment of Natives. Dorgan told TPM that both Cason and Bernhardt demonstrated a hostility to tribes trying to get justice from the federal government.
“The case was very cut and dried. There was widespread theft as well as gross incompetence at DOI,” Dorgan said. “Things were dramatically wrong and devastating for the Indians and needed to be fixed, but [Cason and Bernhardt] were the last to come to that conclusion, and may never have. They were never very helpful at all in addressing the issue or reaching a reasonable settlement.”
In an interview on CSPAN in 2005, Cason said there was no “basis for any settlement at all.” In the same interview, he also summarized the nation’s record of brutal treatment of Native Americans thusly: “Certainly there’s 200 years worth of history of how Europeans colonized the country and had various relationships with Indians to end up where we are.”
When a court ordered the agency to pay millions to tribes in attorneys fees in 2006, Cason deducted the money from tribal funding programs, telling tribes: “This was not a Park Service or a Fish and Wildlife problem, it’s an Indian problem.”
Cason has more recently sparked tensions with tribes by characterizing the settlement-funded land buy-back program as “free money” in testimony to Congress last year. He was chided for the remark by Rep. Norma Torres (D-CA), who reminded him that it wasn’t free money, but repayment for stolen resources.
An outside attorney, who represents tribes in land disputes and works closely with DOI, told TPM he saw a similar attitude from Bernhardt.
“Having worked with the Department of Interior across numerous administrations, David Bernhardt has always struck me as someone quite antagonistic to tribal interests,” the attorney said. “I can tell you that a lot of people throughout Indian country are alarmed that he is now second in command at DOI.”
Members of Congress and former administration officials see a connection between Cason and Bernhardt’s record on tribal lands issues and the recent reassignment of Native American employees.
“If any of these [reassigned] folks were involved in or perceived as helping settle the Cobell lawsuit, I have no doubt they’d be a target,” a former BIA senior official told TPM. “Jim Cason has made no bones about his contempt for the Cobell litigation.”
Indeed, under Cason and Bernhardt’s leadership, DOI is moving to wind down the program for repurchasing Indian land with Cobell settlement funds.
The outside attorney added that it “would be right up their alley” for the Bush administration officials to reassign people who “were either from Indian country or had spent a lot of time in Indian country, and knew what was going on.”
“They have a vision of the DOI that is pretty hostile to tribal interests,” he said of the agency’s current political leadership. “So people who have worked in administrations that were favorable to tribal interests, they see those folks as their enemies.”
“It seemed vindictive”
A damning April 11 report from the DOI’s Inspector General said that the agency may have broken the law by abruptly reassigning nearly three dozen senior staffers — a third of whom were Native American — but that an official determination is impossible because the agency did not follow its own rules for keeping notes and records. Notably, in interviews with the reassigned workers, investigators found that nearly half felt targeted for “political or punitive reasons” or for “conflict with DOI leadership.”
“I don’t know what was in their minds, but it seemed vindictive,” Dorgan told TPM, adding that he found the IG’s findings “disgusting.”
“It seemed to indicate it was done with no planning or forethought, and the Native Americans, they got the worst of it, of course,” he said. “The assignments made no sense at all. They did not serve the Native Americans or the American people”.
The IG found that the reasons given by the DOI for the reassignments — that the officials had spent too long in their previous roles and the Department wanted to get more staff out “on the front lines” — did not hold up. Many were reassigned from field offices to D.C., and many had been in their roles for just a few years.
The board that made the reassignments, which according to the IG report was chaired by Cason, did not do any long-term analysis about the impact of the moves or whether the employees were qualified for the jobs they were giving them, the report found. In fact, they looked mainly at the employees’ personal biographies.
And while federal guidance stipulates that the board that makes job placement decisions at DOI should be made up of a mix of non-partisan career officials and political appointees, when the agency rolled out the wave of reassignments last summer, the board’s voting membership was comprised solely of Trump administration picks.
Most damning, the Inspector General’s office interviewed 31 of the reassigned workers, and found that 10 felt targeted for “political or punitive reasons,” 12 believed they were moved based on their “prior work or area of work,” and eight cited “conflict with DOI leadership.”
Katherine Atkinson, an attorney for one of the reassigned officials, said the report provides ample evidence that DOI “made employment decisions based on punitive or discriminatory reasons.”
“In cases like this, there’s rarely an email that says, ‘I’m going to remove someone because they’re black,'” said Atkinson, who has defended federal employees with workplace discrimination claims for many years. “What judges look at is circumstantial evidence that gives rise to an inference of discriminatory intent, and I don’t think they’d have a problem finding it here.”
Democrats on Capitol Hill say the report confirms their worst fears.
“It’s now clear that agency leaders embarked on a campaign to reassign dedicated, career public servants that they perceived as threatening,” said Sen. Tom Udall (D-N.M.), the top Democrat on the committee that oversees DOI’s budget. “This report backs up my concern that Interior Department leaders identified employees for reassignment as a way to punish career staff.”
Udall added that he views the agency’s complete lack of documentation of the rationale for the reassignments as “an apparent attempt to avoid scrutiny by Congress, the Inspector General and other watchdogs.”
Purges match policy
The sidelining of several of the DOI’s top Native American officials comes as the agency has made a series of policy changes that have alarmed tribal leaders and advocates. Those changes include opening up land sacred to Native Americans for drilling and mining without full tribal consultation, as well as the move to wind down the program that uses money from the Cobell settlement to repurchase Indian land.
Grijalva, who is also a leader of Congress’ Native American Caucus, says he sees both the reassignments and the policy shifts as stemming from Cason, Bernhardt and other DOI political leaders’ long-held attitudes about tribal relations.
“I’ve always questioned their full understanding of what their trust responsibility is. And when it comes to tribal sovereignty, they either have a lack of understanding or a lack of support,” he told TPM. “And many of those who have been reassigned were pushing for full understanding of the government’s trust responsibilities and for not letting the government off the hook when it comes to [tribal] consultations and discussions that need to happen.”