Trump’s Pick to Manage Public Lands Has Four-Decade History of “Overt Racism” Toward Native People

Alleen Brown / The Intercept

(August 2, 2020) — In the five books authored by President Donald Trump’s nominee to lead the Interior Department’s Bureau of Land Management, William Perry Pendley rails against “environmental extremists,” endangered species protections, People for the Ethical Treatment of Animals, and Al Gore — all of whom, in his view, would illicitly limit private development on the lands of the West. He had another target too: policies supporting Native nations’ treaty rights.

Pendley has been the acting leader of the BLM, which is responsible for managing the nation’s public lands, for more than a year. With confirmation hearings expected in the coming weeks, his long history of attacking Indigenous people is getting new scrutiny.

For years, Pendley was head of the Mountain States Legal Foundation, a right-wing organization that has fought multiple high-profile cases favoring private property rights in states west of the Mississippi, including in Native territories. In court and in his voluminous writings, Pendley attempted to undo protections for sites considered sacred to tribes; fought Justice Department efforts to support Native voters’ rights; argued in favor of toppling key legal precedents that uphold treaty rights; and made statements about Native identity and religion that Indigenous scholars and attorneys call deeply offensive.

In his 2006 book “Warriors for the West,” for example, Pendley suggested that Native people may soon cease to exist. “The day may soon come when Congress and the Supreme Court will be asked to take a serious and very hard look at whether there remains a need for the federal government’s policy of paternalistic protection,” Pendley wrote, apparently referring to the U.S. government’s legal obligation to fulfill treaty commitments, known as its “trust responsibility.” The statement continued, chillingly, “The day may come sooner than many expect given that, with ever-declining blood quantum per tribal member, recognized tribes may soon be little more than associations of financial convenience.”

Pendley’s views on Indigenous people have engendered fierce opposition to his nomination to lead BLM — with his positions on “blood quantum” being only the latest to come under scrutiny.

Jill Doerfler, a first-degree descendant of the White Earth Nation and professor of American Indian Studies at the University of Minnesota Duluth, has written extensively about “blood quantum,” a term meant to describe the proportion of “Indian blood” a person carries, used by some tribes as a prerequisite for citizenship. Doerfler’s scholarship shows that blood quantum was imposed by European Americans attempting to diminish the number of tribal citizens able to access land. “This seems like a long, old argument going back to the reason the federal government ever tried to push blood quantum as a way to identify American Indians. That has always been done as a way to access resources,” she said. She added that the blood quantum has always been used “to diminish the number of people that have that legal and political status as American Indians.”

“Somebody who talks like that about people should not have a place in any public position in government. That is just overt racism.”

Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University and member of the Grand Traverse Band of Ottawa and Chippewa Indians, put it bluntly. “That’s just a crazy, crazy racist perception of what Indian people are and what tribes are,” he said. “Somebody who talks like that about people should not have a place in any public position in government. That is just overt racism.”

Pendley, who has lately come under fire for his views on racial justice, worked for the Interior Department in the 1980s as well, and his record there provides further evidence that he could prioritize private development over treaty rights.

As acting assistant secretary for energy and minerals under President Ronald Reagan in the early 1980s, Pendley sought to delay oil and gas industry royalty payments owed to Indigenous people, according to documents shared with The Intercept by the Western Values Project, a public lands and accountability nonprofit.

William Perry Pendley has pushed rhetoric, legal arguments, and policies that sought to deprive Indigenous people of their rights.

Neither Pendley nor the Interior Department answered a detailed list of queries from The Intercept. “Based on the misleading and accusatory questions sent by the Intercept, it is apparent your intention is to create the appearance of disagreement where none exists, and to smear the reputation of a public servant and former Marine who is one of the most highly qualified individuals ever to be considered for the position of BLM Director,” said Conner Swanson, an Interior Department spokesperson, in an email. “The Department looks forward to Mr. Pendley’s swift confirmation.”

Of course, Pendley’s critics are urging Senators to reject the attorney. “William Pendley’s record of actively working against the interests of Native Americans and tribal governments during the Reagan administration and while heading up the right-wing lawsuit factory Mountain States Legal Foundation should be as disqualifying as his racist and bigoted views,” said Jayson O’Neill, director of the Western Values Project. Instead, given what O’Neill called the “culture of corruption” promoted by Trump and Interior Secretary David Bernhardt, “They are actually trying to promote him.”

Undoing Treaty Rights

In “Warriors for the West,” Pendley offers his version of the history of the European invasion of Indigenous lands. “In the nation’s early days, the United States sought to balance its ‘Manifest Destiny’ — to settle, colonize, and utilize the resources of the land — with the desires of the independent and diverse indigenous peoples who inhabited that land and used its resources and who wanted to keep both,” Pendley wrote.

“The history of the federal government’s treatment of American Indians has not involved overt, intentional racial hatred, but instead an attempt to achieve a Jeffersonian ideal of a United States of America in which all adopted the English language, Christian religion, and Anglo/American culture and lived side by side.”

Pendley was omitting some details. “In the mid-1800s to the early 1900s, our children were kidnapped and forced into mandatory military and religious run boarding schools — against their parents’ will,” said Angelique EagleWoman, co-director of the Indian Law Program at the Mitchell Hamline School of Law and a member of the Sisseton-Wahpeton (Dakota) Oyate. “They were sexually, emotionally, and physically abused. If that isn’t overt, intentional racism, I’m not sure what is. We have never fully received reparations or acknowledgement of that history.”

It’s not the only part of history Pendley might like to see left out. While Native tribes certainly suffered racist abuses, their relationships with the U.S. were actually established through and are still governed by nation-to-nation treaties, which carry constitutional weight as the “supreme law of the land.” The vast body of what is known as Indian law exists to support the United States’ political — not racial — obligations to tribes, which came in return for the relinquishment of vast lands and resources.

Wild horses and burros are “an existential threat to theses lands. They are causing havoc on the land.” — William Perry Pendley

In his book, Pendley acknowledges this history by citing the 1974 Supreme Court decision knowns as Morton v. Mancari, which affirms the U.S.’s obligations to Native people under the Constitution. But in legal documents, his monthly column, and book passages, Pendley has repeatedly and inaccurately argued that the decision supports unconstitutional racial preferences.

“Nothing that he’s saying has gained any traction in the law.”

Pendley’s push to overturn Mancari ties into his past efforts to disrupt racial justice programs. In the 1990s, Pendley was the attorney for a highway guardrail construction company that objected to a Department of Transportation program favoring “socially and economically disadvantaged individuals.”

The case made its way to the Supreme Court, which in 1995 issued a ruling that severely curtailed affirmative action programs by imposing onerous burdens on racial preferences. In the wake of the decision, Pendley — again ignoring the weight of the treaties — repeatedly argued that “Mancari is likely unconstitutional.”

“This is fringe theory,” said EagleWoman. “Nothing that he’s saying has gained any traction in the law.”

That hasn’t stopped right-wing legal groups from pushing the argument in court, including efforts by Pendley himself.

If Pendley and these groups are successful, the repercussions would be enormous. “If Mancari were overturned, it would be an enormous legal and political disaster,” said Robert Coulter, executive director of the Indian Law Resource Center and a member of the Citizen Potawatomi Nation. “Almost nothing would be the same. Around 200 years of congressional legislation would suddenly be unconstitutional and invalid.”

“Some of the right-wing legal theories are like that,” Coulter added. “The aim is to create a disaster so that the legal framework as we know it would cease to exist, and Indian tribes would have virtually no rights.”

Stripping Protections for Sacred Sites

Mancari isn’t the only target of Pendley’s attacks on Native rights. As a lawyer with Mountain States Legal Foundation and in his writing, he has argued against tribes and Native people in cases related to voting rights, tribal courts’ jurisdiction, tribes’ tax-exempt status, and the right of Indigenous people to speak their languages in the workplace. However, Pendley has perhaps most frequently argued to deny protections for sites considered sacred to Native tribes, including those located on and near public lands.

Pendley’s approach is especially significant given that the Bureau of Land Management oversees 245 million acres of public lands — 12 percent of the United States — many of which border tribal land. Any pollution emitted by development projects could impact tribal citizens’ health or the health of the wild flora and fauna on which they rely. Located on the land itself are numerous cultural resources, including sacred sites, that are important to Indigenous people’s ways of life.

In February 1995, the National Park Service decided that Devils Tower, a butte in Wyoming, would be voluntarily off-limits to climbers every June, in order to respect area tribes’ religious practices. Pendley was incensed and fought the policy in court.

Despite the fact that several tribes continue spiritual practices at the site today, he claimed in a column that “Devils Tower was never a sacred site for American Indians!” As evidence, he noted that there were no “sightings” of American Indians at Devils Tower in the mid-to-late 1800s and pointed to a document from 1934 that claimed there was no “physical evidence” that the structure was important to people.

More recently, he represented a county defending the Trump administration’s reduction in size of the Bears Ears National Monument, which is considered sacred to multiple tribes. And he fought against the Interior Department on behalf of the oil and gas company Solenex, which sought to drill in the pristine Badger-Two Medicine area of Montana, considered sacred to the Blackfeet people. (Pendley recused himself from work related to Bears Ears and involvement in the Solenex case after he came on as acting BLM head. A federal court upheld the cancellation of the energy company’s lease in June.)

As a lawyer, Pendley also battled a decision by the Arizona Department of Transportation to refuse to buy rocks for highway projects from a company that mined the material from Woodruff Butte, considered sacred to the Hopi, Zuni, and Navajo people. And he opposed the federal government’s decision to cancel a timber sale near Medicine Mountain and the Medicine Wheel, a national monument and a sacred site to Indigenous people, located in the Bighorn National Forest in Wyoming. Pendley represented a nearby sawmill that he claimed was prevented from purchasing the unharvested wood.

In his writings, Pendley frequently compared protections for sacred sites to legal cases barring Christian symbols in public spaces, like crosses removed from public property and prayers at public school. He claimed in “Warriors for the West” that “the law of the land regarding government activity ‘respecting an establishment of religion’ is Judeo-Christian, ‘no,’ and pantheism, ‘yes.’”

Fletcher, the Indigenous law expert from Michigan State University, dismissed the idea that the federal government too frequently protects sacred sites. “I would say that 95 percent of sacred sites cases that Indians or tribes bring, they lose,” said Fletcher.

“The Devils Tower thing is particularly ridiculous. There is a voluntary climbing ban for one month in the summertime. There is no protection for Indian people on Devils Tower or really anywhere else.” Proportionally, efforts to maintain Christian symbols in public spaces are more successful than cases to protect sacred sites “by an incredible margin,” he added.

At a hearing regarding the BLM’s move to Colorado last September, Rep. Deb Haaland, D-N.M., asked Pendley about one of his dismissive statements about sacred sites. “I was not speaking as a member of the BLM. I was speaking as a private attorney representing private clients,” Pendley replied. “I’m proud to speak on behalf of the Bureau of Land Management now, and I’m particularly pleased with the opportunities to work with the Bureau of Indian Affairs and tribes to establish tribal energy resource agreements to permit tribes to develop their energy resources.”

“I have a new client,” he claimed. “My client’s the American people.”

Delaying Payments to Tribes

At face value, Pendley could be seen as a natural ally to tribes and Native people that have sought to increase resource extraction on their lands. Yet he has even sided with energy companies against those very tribes interested in extractive development.

Large numbers of Native people rely on royalties paid by the oil and gas industry for extraction on their land. In many places, mining takes place on Native land that is held in trust by the federal government. Essentially, because of a long history of dispossession, the land is owned by a tribe or an American Indian person, but the federal government controls the leasing to ranchers, miners, or oil and gas companies.

Royalties are then distributed by the federal government back to the tribal members who own the land. Many tribes and individuals plan their budgets with the royalties in mind and, for those living on razor-thin margins in economically depressed areas, they are an essential lifeline.

For decades leading up to the 1980s, oil and gas producers operating 21,000 leases located on land held in trust were required to pay Native owners their royalties within a month of production. But in 1983, while Pendley was serving as assistant secretary for energy and minerals in Reagan’s Interior Department, his agency changed the policy, allowing the companies two months instead of one.

Several people objected, mostly Comanche tribal members from the Anadarko area of Oklahoma, submitting a petition to the Bureau of Indian Affairs describing the hardship they would face if the change moved forward.

Royalty payments had already been delayed while the Minerals Management Service, which distributed royalty payments, updated its accounting system. “We have suffered from non-payment of royalties for months. Many of us have lost our cars and other property while the government failed for months and months to collect or disburse millions of dollars in royalties belonging to us,” the petitioners wrote. “Now just as we are beginning to get some of these back royalties and pay our bills and living costs, the government proposes to cut off our royalties again.”

“The BLM can and does have a big impact on tribes and tribal resources. It would be horrifying to see him really in charge.”

“If you permit these new regulations our royalties will be cut off in the middle of winter,” they continued. “How will we pay for our food and housing and fuel? Do you think, Mr. Secretary, that our creditors are as lenient with us as you propose to be with the oil companies? No! Our mortgages and car payments are due every month. We must pay for our groceries when we buy them — not sixty to ninety days later.”

The move was even opposed by other officials in Reagan’s Interior Department. “It will be very difficult to to explain this change satisfactorily to the Indian people,” Ken Smith, a member of the Wasco Tribe of Oregon who was then serving as assistant secretary for Indian Affairs, wrote in a 1983 memo to Pendley. “To suspend royalties for another month, probably in mid-winter, when change of regulations takes place, would work a tremendous hardship and create create a great deal of criticism.”

Pendley declined to comment on whether he heeded the tribal members concerns. Current regulations indicate that royalty payments are due one month after the month of production.

Echoes of Pendley’s failure to properly consult with tribes during the Reagan era are already visible during his tenure as BLM’s acting director. The area surrounding the Chaco Culture National Historical Park in New Mexico, for example, is considered sacred to many Indigenous people.

As the region became a hotbed for Covid-19 cases in the U.S., Pendley’s BLM was finalizing a resource management plan for the area. Rather than rescheduling public meetings regarding the plans, the bureau transferred them online, to take place while many of those most impacted were scrambling to manage the health emergency wreaking havoc on the community.

“Secretary Bernhardt and Acting Director Pendley are using this crisis to hand our public lands over to the oil and gas industry, and are silencing communities in the process,” Rep. Raúl Grijalva, D-Ariz., said at the time in a statement. “Native Americans are contracting and dying from coronavirus at an alarming rate, and the Trump administration should be working to make sure they have the resources they need to stop deaths, not keep drilling at record speed.”

“Many folks near the Chaco region live in areas without internet access,” Haaland added.  “By moving forward, the Department is failing to fulfill its trust and treaty obligations to Native Americans, and it is failing to protect a national treasure.”

Ultimately a public comment period was extended, but similar scenarios have played out throughout Native communities around the U.S.

“The BLM can and does have a big impact on tribes and tribal resources,” said Coulter. “It would be horrifying to see him really in charge.”

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