Executive Order 13647 of U.S. President Barack Obama, signed June 26, 2013, and published July 1, 2013, eponymously established the White House Council on Native American Affairs (the Council). This move reaffirms Obama’s stated commitment to the principles of the U.N. Declaration on the Rights of Indigenous Peoples. The tasks and duties charged to this body and its members and its proximity to the president are features of federal Indian policy that are long overdue, given its extensive and detailed experience. The transnational Saami Council was established in 1959 by the governments of Norway, Sweden, Finland and the then USSR.
On paper the Council has the potential to be an effective means of ensuring that the highest level of all executive agencies are aware of and engaging with Native American affairs through concerted effort. Political will, follow-through, and actual tribal involvement will be necessary to make the Council a success.
The event was received well across the board. President of the National Congress of American Indians, Jefferson Keel, described the establishment of the Council as “a very strong step forward to strengthen our nation-to-nation relationship…[that] will increase respect for the trust responsibility and facilitate the efficient delivery of government services.” The inaugural chair of the Council, the current Secretary of the Interior Sally Jewell, spoke the following day at the mid-year conference of the National Congress of American Indians. Jewell echoed the sentiment of the order, promising to listen to tribes, advocate on their behalf, and support the tribal direction and administration of federal programs. Jewell’s pledge to protect tribal sovereignty indicated a pro-tribal position in her first address to Indian Country since assuming office in April.
The overarching aim of the newly minted Council is to coordinate the development and effectuation of federal Indian policies that promote tribal self-governance, the improvement of quality of life for Native Americans, and the government-to-government relationship frequently employed in the Obama administration’s activities in Native American affairs.
At least thirty-one executive officials from as many departments and offices form the membership of the Council. Though the order requires the membership of the highest-ranking official of each department, that official can delegate their duties to a senior official from their respective department.
As some commentators have pointed out, the order does not require any Native American presence on the Council. It does, however, require Native American presence, however indirectly.
If the Obama administration were truly promoting a real government-to-government relationship, it would run somewhat counter to that position to require Council membership of Native Americans who are not officials in the federal government. The order reinvigorates legal terms of art that have been under attack in federal courts in recent history, such as the concept of tribal “inherent sovereignty.” The leanings of the Supreme Court of the United States favor the legal fiction of “delegated sovereignty,” where any sovereign powers possessed by a tribe exist because Congress bestowed those powers upon tribes.
What should be required is continued and meaningful engagement with tribes in directing policies; Section 4(b) requires the Council to “coordinate” federal engagement with tribal stakeholders through various fora in a multi-sectoral approach. In other words, the Council must arrange to engage with and receive information from an extremely broad sample of Indian Country today.
The order’s weakest component may actually be that it subjects the funding of the Council to the discretion of the Secretary of the Interior to be made out of the appropriations to that department. If Native American issues continue to take the back burner despite being largely under the purview of the Department of the Interior, a lack of funding may hinder the interagency efforts.
Perhaps the biggest accomplishment of the order was succinctly stated by Bryan Newland, a former Department of the Interior official in the Obama administration, Ojibwa citizen (Bay Mills Indian Community), and attorney on Turtle Talk. Newland writes,
“In a large bureaucracy, [] a directive from the Commander in Chief to coordinate on the development and implementation of Indian policy is a big deal. It requires affected agencies to become more engaged on these issues.”
Executive Order 13647 carries much promise, but so have many federal Indian policies before it. It stands to promote the general and subset-specific human rights of American Indians as a whole, but by its own terms does not create enforceable individuals rights. Streamlining governmental dealings in Native American affairs through a more consistent policy that takes heed of international human rights standards may alone promote tribal quality of life, where previous policies have oscillated between tribal self-determination and termination. Acknowledging that federal Indian policies require greater and more meaningful engagement and consultation with tribes and setting that premise as a cornerstone of federal Indian policy is certainly a step in the right direction, but the order itself does not create any immediate effect on the ground.
