WASHINGTON – The George W. Bush administration wasn’t exactly known for its care and concern on border issues affecting tribes. Some Native Americans thought the scenario would change under the Obama administration. But change has yet to come.

Early on, the administration started out with what many viewed as a positive gesture, with Department of Homeland Security Secretary Janet Napolitano directly reaching out to tribes promising consultation.

Since the establishment of the department in late-2002, it has overseen many border issues of concern to tribes. The department’s main goals are to protect the United States from terrorist attacks and to respond to natural disasters.

At the winter session of the National Congress of American Indians in early March, Napolitano released a draft consultation policy and solicited input from NCAI and tribes, especially those hit by natural disasters and located along the borders.

“For tribes that are on the borders of Mexico and Canada, we need to work together in a special way because we have tribes and families on both sides of the borders,” she said.

“As we tighten up requirements to show lawful presence and immigration status and the like, we need to take into account how tribes will be a little bit different. We need to build that into the consultation policy from the outset.”

The words were quite welcome to tribal leaders, who had just spent a few difficult years dealing with former secretary of Homeland Security Michael Chertoff, a Bush appointee.

Of particular concern to some tribes, Chertoff waived the Native American Graves Protection and Repatriation Act and other federal laws to speed construction of a border fence between the U.S. and Mexico. NAGPRA is a 1990 federal law, which created a legal process for federal agencies and institutions that receive federal funding to return American Indian human remains and cultural items to their respective tribes or lineal descendants.

Chertoff told Indian Country Today in a July 2008 interview that he knew his actions would be controversial, but he deemed them important enough to do in order to protect the nation’s interests.

Beyond the waiver, little attention was paid by top Bush administration officials to specific tribal border concerns, including those surrounding identification cards. Tribes have long pushed for recognition of tribal member enrollment cards as a valid form of identification, including for the purposes of crossing the U.S. border to Canada and Mexico.

So, it was against Chertoff’s disheartening DHS backdrop that Napolitano made her positively-received March NCAI speech. But, since then, she and her department have done relatively little to address tribal border issues in any more meaningful ways than the Bush administration did, according to tribal officials.

“Yes, Secretary Napolitano clearly has substantially more experience with tribes than her predecessor,” said Heather Dawn Thompson, a former governmental affairs expert with NCAI and a new partner at D.C. law firm Sonnenschein Nath & Rosenthal. “She has a pretty solidly established tribal track record.”

As the former governor of Arizona, Napolitano dealt with numerous tribal issues, and was often seen as an ally to tribes in her state.

“However,” Thompson add-ed, “that knowledge and experience has yet to lead to many concrete changes or results
at DHS.”

Some of the problems are institutional, as Napolitano has placed few Indian-focused policy specialists in the department, including in its general counsel’s office. While the department has hired Virginia Davis, who formerly worked at NCAI, she is not focused on Indian affairs.

“We definitely hope they get more Indian law expertise within the general counsel’s office,” Thompson said.

No matter what the hold-up for tribal progress in the department, there is a growing number of border policy issues that need addressing, tribal officials say.

One involves the Western Hemisphere Travel Initiative, which says all U.S. citizens must present a passport book, passport card, or WHTI-compliant document when entering the country.

Tribal leaders, including St. Regis Mohawk Chief James Ransom, have pointed out to DHS that it’s not desirable or affordable for many tribes to pay for enhanced tribal cards that would be permitted as border crossing documentation.

Ransom discussed some of the problems his tribe is experiencing with DHS at an Obama administration meeting with tribal leaders Aug. 31. He feels the agency, along with Customs and Border Protection, should be more responsive to the tribe’s efforts to contact them and to address tribal issues in a timely fashion.

At the meeting, many tribal leaders cited DHS under the Obama administration as the agency that needs the most improvement in terms of tribal consultation.

Tribes are also not comfortable, largely because of historical injustices, to turning over the tribal membership rolls to DHS, so that it can be directly involved in creating enhanced tribal membership cards.

One solution would be for DHS to help fund a way for tribes to enhance security of their own cards, but Napolitano has yet to move on that idea.

Related to the WHTI issue, tribal leaders have expressed concern about the Real ID Act, a 2005 law that imposes certain security, authentication, and issuance procedure standards for the state driver’s licenses and state ID cards, for them to be accepted by the federal government for purposes defined by DHS.

The law doesn’t delineate tribal cards as an acceptable form of identification to obtain a state driver’s license. It also includes provisions for a state identification enhancement grant program, but there is no corollary tribal identification enhancement grant program.

Newer legislation that would update and modify the controversial law contains similar issues that are problematic to tribes.

In recent testimony to Congress, Napolitano didn’t mention tribal issues under WHTI or the Real ID Act as areas that need increased attention and funding. Congress has not provided funding beyond support for state-issued IDs.

A third big tribal border arena that Napolitano hasn’t addressed involves direct funding. Tribes have had to apply through state programs for DHS grants, which is not in keeping with the government-to-government relationship the federal government has traditionally had with tribes.

In a recent phone interview, Alan Bersin, an assistant secretary for international affairs and special representative for border affairs with DHS, attempted to clarify some tribal border concerns with the Obama administration.

“You cannot have effective border policy unless you enlist state, local and tribal leaders,” Bersin said. “It’s a consciousness, but also a dedication to inclusion.”

He said the record of activity of DHS during the first stretch of the Obama administration has distinguished itself from that of the Bush administration.

He feels Napolitano is paying more than “lip service” to tribal border concerns.

When pressed for specifics, Bersin was interrupted by a DHS spokesman who said he would provide more details in the future. As of press time, details had not come.