It’s often been said that the most powerful people in government are not the leaders, but the low-level bureaucrats that actually run government programs and implement the law.

In a settler colonial society dominated by implicit white supremacy – the idea that this country was created by and is primarily for white people –, unconscious bias and outright prejudice are inevitable. Tribes seeking to work within the US government framework encounter it. I’ve seen it too many times– regulations I’ve never heard of, that are never applied to white people, suddenly appear when a tribe is involved.

I used to work for the California Department of Fish and Wildlife’s Office of Spill Prevention and Response. We respond to oil spills, we make sure oil companies can respond to oil spills, and we work a lot with our federal, state, and local partners to respond together. That includes tribes. California is a progressive state by US standards. Under state law, we are obligated to consult with all 110 federally-recognized tribes in California, as well as with over fifty non-federally-recognized tribes.

Nevertheless, when the rubber meets the road at the bureaucratic level, obstacles appear. Here are four stories from my recent work experience.

Example #1: Unconscious bias and erasure in a grant program

One of our programs is the granting of oil spill response equipment to local governments. This usually means a trailer filled with cleanup equipment that is parked near a harbor or river in case of a spill. We give these to cities, counties, harbor districts, — and tribes. We train their first responders how to use the equipment and build a relationship with them. The state has granted over fifty such trailers, and they’ve been used over fifty times to quickly respond to oil spills.

We’d given about four such grants to tribes when a fifth was held up by our department’s contracting office. A tribe, they said, does not meet our definition of “local government”. They’d probably never processed a grant for a tribe and knew nothing about treaty rights, tribal sovereignty, or the fact that, under the US legal framework, tribal governments are on par with the federal government, superseding state and local governments. Not knowing all this, and perhaps with some stereotyped image of a unqualified group trying to claim a government benefit, they rejected the contract.

In their defense, our state law for this grant program failed to mention tribes – just forgot about them – which created ambiguity. But that’s not a complete defense. At the same time, the contracting office was approving grants to local harbor districts, which also did not meet our definition of local government. But those contracts were never questioned.

Being generous here with the contracting office, this was probably an example of unconscious bias, ignorance, and erasure, the last because legislators forgot to list tribal governments as a local government under this law.

Note: We went ahead with the grant and have since clarified the law. The California Department of Fish and Wildlife is also conducting a review of all their grant programs that seemingly exclude tribes because they forgot to include them. They are finding lots of examples. 

Example #2: Systematic exclusion at an emergency response

In the days after the Refugio Beach oil spill in 2015, the responding government agencies activated the Incident Command System (ICS) and created a Unified Command (UC), which consisted of a federal on-scene coordinator (FOSC), a state on-scene coordinator (SOSC), and a representative from the responsible party (in this case, a pipeline company). They established an entire bureaucratic structure to handle such things as planning, logistics, operations, finances, legal issues, and public relations. The various positions under the UC were staffed by members of various federal, state, and local agencies.

If you can’t tell by the acronyms, all of this is standard procedure in a large-scale emergency response. Tribal governments, to the extent they have local knowledge, are legally natural resource trustees, and have trained first responders, may serve a number of roles.

In this case, there were six tribes in the area, all bands of the Chumash. For historic reasons, only one is federally-recognized and its small postage stamp reservation is miles inland away from the coast. Of the other five bands, three were listed by the state (a form of state recognition) and two were neither state-listed nor federally-recognized. Ironically, it was one of the latter who had a trained fireman familiar with ICS. Also ironically, it was the five non-federally-recognized bands that had a keen interest in monitoring clean-up operations.

Some of the bluffs above the beaches contain historic Native gravesites. Over time, due to erosion, these fall down the cliffs into the rocks and seaweed below. This created a very real possibility that oil spill clean-up crews would scoop up gravesite artifacts, or even human remains, during their operations, and perhaps inadvertently throw them away. The tribes asked for each clean-up crew to be accompanied by a “cultural monitor”, which would be provided by the tribes.

The US Coast Guard, serving as the FOSC and thus ultimately the voice of final authority, balked. Initially refusing to recognize California’s laws, they refused to allow non-federally recognized tribes into the Command Center.

At the same time, they had no problem admitting representatives from the National Park Service, though there was no evidence that oil from the spill was impacting the Channel Islands National Park. And they had no problem admitting representatives from the Bureau of Land Management, whose connection lay with their oversite of the California Coastal National Monument—all the offshore rocks. Yet I could not find a single offshore rock in the spill zone. These were the “white privilege” trustees, welcomed to the table without question.

The tribes, on the other hand, were subject to withering scrutiny. Finally, after several days of arguments, cultural monitors from the various non-federally-recognized tribes were allowed to participate in the spill response. There were essentially hired as contractors to perform a duty that the Coast Guard finally admitted was a responsible and necessary component of the cleanup operations. In a sense, the concerns of the tribes were finally accepted as a legitimate public interest.

One can imagine the immediate response if the gravesites had been historic white pioneers or US military. When the USS Arizona, the battleship sunk at Pearl Harbor and now a memorial to the lives still entombed onboard, was leaking oil, respect for the dead was paramount and all cleanup operations were subject to scrutiny.

In this case, the tribes were treated as lesser members of the public and lesser trustees.

Example #3: Outright prejudice and bureaucracy as a weapon

Continuing with emergency oil spill response, I know of one official with the US EPA who regularly serves as the FOSC. He has a lot of power. He’s also a Trumper and doesn’t particularly like working with Indians. It irks him that tribes can send an 18-year-old cultural monitor, without a university degree, to put a sudden stop to oil spill cleanup operations if so much as a single bead is found. (In truth, there is a collaborative process of consultation if a difficult decision must be made. When an oil spill threatens a salmon stream, tribes are especially cognizant of the need for rapid oil spill cleanup.)

At an oil spill cleanup, everyone onsite must be certified as trained in dealing with hazardous waste. It’s a federal safety requirement. So this EPA FOSC combed thru those rules and found some ambiguity that gave him, as FOSC, some leverage over who is considered certified to be in the hot zone. To quote a colleague that worked for California State Parks, “If I want to stop something, it’s easy to find a regulation to do that.”

This EPA guy wanted to create a year-long process to “help” tribal cultural monitors become certified. In addition to regular hazardous waste training, his process involved multiple extra trainings, which would require travel and overnight stays at locations far from reservations, for members of all of California’s 110 federally-recognized tribes (and nothing for the non-recognized tribes). In short, he was creating a high hurdle that would continually be an obstacle and source of contention with tribes. In fact, there are ways to have experts without safety certification near a hot zone in a safe and legal manner.

Thankfully, after several months, and ironically using the Refugio response as a positive model, higher-ups at the EPA squashed his proposal. Various inter-tribal and state agencies provide regular hazardous waste training for tribes.

Example #4: Paternalism

This final example I’ve already written about. I’ll summarize it here. This had to do with the economic method used to quantify damages and make a claim for compensation from an oil company. In short, how do you count your losses and sue an oil company? A federal economist casted doubt on the method the tribes were using, though it was pretty much the same as what the feds and states were using.

At a meeting with tribes, he announced that he had commissioned a study to explore tribal claims and produce a guidance document to provide instruction for future claims. Several hands immediately went up. Did you consult any tribes in doing this?  No, he said. Furthermore, the scope of work was already finalized and out for bid to contractors. 

At the end of the day, despite good intentions and “listening sessions”, the federal government fell back to a paternalistic approach, rooted in centuries of racism, and embarked on a project to tell the Indians what to do. Suddenly the tribes were wards of the government again. 

Summary

These are all examples from a progressive state in the context of oil spill response, when feds, states, and tribes are trying to work together. One can imagine how much worse it could be in a contentious setting. See this recent interview of Abigail Echo-Hawk on how prejudice affects the official search for missing Indigenous women.

This is part of what structural racism looks like. To overcome these problems at the bureaucratic level, federal and state employees should be trained in tribal relations, legal rights, and unconscious bias.