Washburn was raised by his mother,Shirley Stark (née Wallace),in Oklahoma City and small towns in Oklahoma,including Purcell,Heavener and Ada. He graduated from Moore High School,in Moore,Oklahoma,a suburb of Oklahoma City. Washburn came from an underprivileged background.[5] Washburn discussed his childhood and mother in a speech given upon receiving the Spirit of Excellence Award from the American Bar Association. His mother,who was single for much of his childhood,raised him and his two siblings. She eventually retired as a community health representative for the Chickasaw Nation and currently serves on the tribe's Council of Elders.[6] Washburn went to college at the University of Oklahoma,where he majored in economics and minored in philosophy. After graduating with honors,Washburn began law school at Washington University in St. Louis where he was the inaugural Gustavus A. Buder Scholar. After his first year of law school,Washburn transferred to the Yale Law School,where he served as editor-in-chief of the Yale Journal on Regulation and received his J.D. degree in 1993.
From 1997–2000 Washburn served as an Assistant United States Attorney in New Mexico.[1] Working in the Violent Crimes Section,he handled homicides,sexual assault,bank robberies,and various other offenses,many of them arising in Native American country. His highest profile case was the successful prosecution of an offender who made threats against United States District Court Judge John E. Conway and United States Magistrate Judge Robert DeGiacomo.[9]
National Indian Gaming Commission
From 2000 to 2002,Washburn served as the third General Counsel of the National Indian Gaming Commission.[citation needed] He served during the time of tremendous growth in the Native American gaming industry in California as that gaming became authorized by the signing of tribal-state gaming compacts,a very active time at the Commission.[citation needed] As general counsel,Washburn made several reforms. First,on hearing complaints from the industry suggesting that agency staff were abusing power in the management contact review process by demanding changes to contracts that were not required by law,Washburn changed the review process by requiring staff to identify statutory or regulatory authority for any objection that agency staff made to a proposed management contract under review. Second,Washburn improved the Commission's enforcement efforts by working to make the Commission's document charging a regulatory violation,called a "notice of violation," more comprehensible to the public. Washburn required that such notices be written to explain the purpose for the rule which the target was accused of violating. The use of such "speaking indictments" clarified the reasons that the NIGC was taking action and therefore improved public understanding of the NIGC enforcement priorities. Washburn also aggressively defended the independence of the Commission as an independent regulatory agency,strongly resisting efforts by officials of the Department of the Interior to embroil the NIGC in the longstanding Cobell class action litigation that ultimately was settled as Cobell v. Salazar.[10] Third,Washburn helped the NIGC establish,over the strong objections of the Department of Justice,the right of tribal nations to conduct Class II gaming with technological aids that helped maintain a strong revenue source for tribes and gave them more leverage in negotiations with states over revenue sharing.
Much of Washburn's scholarship focuses on the intersection of federal Native American law and criminal law.[11] In one of his articles,he focuses on the federal criminal justice system that applies on Native American reservations and the federal constitutional values of criminal procedure.[11] In another piece,Washburn writes about the federalized criminal justice system and federal Native American policy involving Native American self-determination.[11] His groundbreaking work in this field was discussed at length in a piece in the High Country News.[12] In July 2008,Senator Byron Dorgan introduced S. 3320:Tribal Law and Order Act of 2008 in an attempt to fix some of the problems identified in Washburn's scholarship.[13] The Tribal Law and Order Act was signed into law in 2010.
Washburn is a scholar of the gaming industry and particularly Native American gaming. Washburn's scholarship includes articles addressing the regulatory process related to Native American gaming and the cultural clashes among federal agencies with regulatory roles in Native American gaming. Washburn is the author of a leading law school casebook] on the subject of the regulation of gaming and gambling. His work has been cited by the U.S. Courts of the Appeals for the Seventh Circuit[14] and the Ninth Circuit,[15] among other courts. Washburn has also testified frequently before Congress on issues related to gaming.
University of New Mexico School of Law,2009-2012
In 2009,Washburn was named dean of the University of New Mexico School of Law and served for more than three years.[citation needed] In 2010,the School of Law celebrated the 60th anniversary of its first graduating class with a celebration attended by more than 800 people and the release of a book entitled "60 for 60:Shaping Law in New Mexico Since 1950" which documented the law school community's influence in New Mexico.[16] The 60 for 60 event was reflective of Dean Washburn's efforts to connect the law school with the broader community. Washburn's tenure was marked by the successful recruitment of several high-value faculty members to the law school,in part,by raising all faculty salaries during a time of shrinking fiscal resources. These recruits included George Bach,Yael Cannon,Max Minzner,Aliza Organick,Dawinder "Dave" Sidhu,Kevin Tu and Alex Ritchie. Washburn hired Ritchie to establish the law school's "oil &gas program",to provide more opportunity for communities and students from the San Juan and Permian Basin regions to engage better with the school. During Washburn's tenure,U.S. Supreme Court Justices Elena Kagan[17] and Sonya Sotomayor[18] visited the School of Law,and Ninth Circuit Judge Mary Murguia gave the inaugural Senator Dennis Chavez Memorial Lecture.[19] The Chavez Lecture was established,during Washburn's deanship,through a gift from the Senator's family.[17] Washburn helped to bring numerous other significant gifts to the law school to support students and faculty,such as the Daniels Diploma,the Salazar Prize,[20] the Bailey Scholarship in Law,[21] and the Hart Chair. Under Washburn's leadership,annual giving to the School of Law also increased dramatically. Washburn helped strengthen the relationship with the New Mexico courts,especially the Court of Appeals,which relocated to a new building next door to the School of Law during Washburn's deanship.
The UNM School of Law's curricular offerings expanded during Washburn's tenure. In addition to the oil &gas program,the School of Law developed a semester in Washington D.C. program,spearheaded by then-Associate Dean Barbara Bergman,as well as an Innocence and Justice Project program designed to use DNA evidence to free the wrongfully convicted,funded by a significant grant from the U.S. Department of Justice obtained by then-Associate Dean April Land. Washburn also obtained a grant from then-Governor Bill Richardson to fund a DWI-DV Prosecution-in-Practice class in which students prosecute cases of domestic violence and driving while intoxicated.
Obama Administration,2012-2016
Washburn left the UNM deanship in the fall of 2012,when President Obama appointed him to serve as Assistant Secretary for Indian Affairs at the U.S. Department of the Interior.[citation needed] Following a confirmation hearing,he was confirmed unanimously by the United States Senate on September 21,2012,and was sworn into office by Secretary of the Interior Ken Salazar on October 9,2012,serving in that position until January 1,2016,when he returned to the University of New Mexico as a faculty member.[22] He was the twelfth Assistant Secretary of the Interior for Indian Affairs to be confirmed since the position was established by Congress in the late 1970s. He was preceded by Larry Echo Hawk and succeeded by Lawrence S. Roberts (acting). In addition to carrying out the Department's trust responsibilities regarding the management of tribal and individual Native American trust lands and assets,the Assistant Secretary is responsible for promoting the self-determination and economic self-sufficiency of the nation's 567 federally recognized Native American and Alaska Native tribes and their approximately two million enrolled members.[23] As Assistant Secretary,Washburn helped organize the White House Tribal Nations Conferences for 2012,2013,2014,and 2015,in which President Obama invited leaders from each Native American tribe to Washington,D.C.,to meet with the President directly and with his cabinet. Washburn also oversaw the establishment of the White House Council of Native American Affairs by President Obama.
Washburn's leadership at the Department of the Interior was marked by significant policy accomplishments,such as initiatives designed to preempt state taxation of business activity in Native American country to enhance tribal economic development,[24] a reversal of the Department's rule against taking land in trust for Alaska tribes,[25] more than half a million acres of new lands taken into trust for tribes,[26] and more than 1.5 million acres of fractionated interests in existing trust lands restored to tribes.
Washburn also worked to reform and improve numerous BIA regulatory regimes,related to rights-of-way,[27] Native American child welfare,[28] the federal acknowledgment process for Native American tribes,[29] tribal jurisdiction,and Secretarial elections.[30] Washburn described his philosophy at a lecture at UCLA in 2014.
Early in Washburn's tenure,Congress imposed a sequestration on the federal government,cutting five percent from each agency's budget. Nevertheless,under Washburn's leadership,Washburn worked with Congressional appropriators and President Obama's Office of Management and Budget to increase funding for the Indian Affairs programs at the U.S. Department of the Interior,resulting in an increase in appropriations from $2.3 billion in FY 2013 to $2.8 billion in FY 2016,a half-billion increase in less than four years,increasing the federal government's success in meeting its trust responsibilities to Native American nations. The last budget on which he worked before leaving government services sought $2.9 billion in funding for these programs.[31]
Washburn also helped the United States achieve settlements with Native American tribes in cases against the United States for breach of contracts and breach of trust,including a $940 million settlement in the Ramah Navajo Chapter class action and a $554 million settlement with the Navajo Nation.[32]
Washburn's aggressive initiatives to advance Native American tribal nations was appreciated by tribal leaders for which Washburn received frequent praise,but his advocacy met a backlash among conservatives in Congress,producing an often contentious relationship with some members,particularly in the House.[33] Washburn criticized House members for placing the legitimacy of some tribes in doubt[34] and opposing the Obama administration's land-into-trust initiatives.[35] Washburn also sometimes clashed with Senators,including Senator John McCain.[36] During his tenure in office,Washburn was responsible,working with the Office of Federal Acknowledgement,for extending federal recognition to the Pamunkey Tribe of Virginia,the tribe of Pocahantas.[37]
Washburn attributed the successes on initiatives for Native American tribes during President Obama's second term to having an extraordinarily strong and hard-working political team in place in the Office of the Assistant Secretary,pursuing President Obama's Native American Country agenda,including the Principal Deputy Assistant Secretary Larry Roberts,Deputy Assistant Secretary Ann Marie Bledsoe Downes,Chiefs of Staff Sarah Walters and Sarah Harris,Rodina Cave,Cheryl Andrews Maltais,Kallie Hanley,Don Yu,Jonodev Chaudhuri,Kathryn Isom Clause and Sequoyah Simermeyer. During Washburn's tenure,Morgan Rodman was named the first executive director of the White House Council on Native American Affairs,which was chaired by Secretary of the Interior Sally Jewell,staffed by other members of the Cabinet,and housed within the Office of the Assistant Secretary.
Academia,2016-present
In January 2016,Washburn returned to a faculty position at the University of New Mexico School of Law. Washburn's tenure as Assistant Secretary was more than three years and three months,making him the longest-serving official in that position at that time since Ada Deer left the position in 1997,and one of the longest in the history of the position.
Washburn is married to Libby Washburn,who served as a Special Assistant to President Joe Biden on Native American affairs in the White House Domestic Policy Council.[39] They have three children.
Gaming law
Washburn is one of the country's leading experts on gaming and gambling law. He served as the general counsel of the National Indian Gaming Commission (NIGC) from January 2000 to July 2002.[40] He is the author of a law school casebook on Gaming Law and Regulation published by Aspen Publishers in 2011,and several law review articles. He frequently testifies before Congress and the courts on issues involving Native American gaming. While visiting at Harvard Law School during the 2007-08 academic year,Professor Washburn taught the first course on Gaming/Gambling Law in that school's history.[40] In addition to Harvard,Professor Washburn has taught Gaming/Gambling Law at the University of Minnesota Law School,the University of Arizona James E. Rogers College of Law,and the University of New Mexico School of Law.
Federal Native American law
Washburn is also an expert in federal Native American law. He has been an author of one of the principal casebooks on federal Native American law,entitled American Indian Law:Native Nations and the Federal System. He is also an author/editor of Indian Law Stories,a book that provides the back stories of several key Native American law cases. In addition,he is an author and member of the executive board of editors of Felix Cohen's Handbook of Federal Indian Law,the leading treatise in the field of federal Native American law. In 2017,the Harvard Law Review published online Washburn's reflections on the future of federal Native American law and policy.[7]
Affiliations
Elected member of the American Law Institute since 2007;Board of Trustees of the Law School Admission Council from 2006-2009,2012,and 2016 to 2022,and Chairman of the Board from 2019 to 2021);Author and Executive Editor of Felix Cohen's Handbook of Federal Indian Law since 2005;Member of the Criminal Law and Procedure Drafting Committee for the National Conference of Bar Examiners 2006-12 and 2016-2018;Yale Law School Fund Board of Directors 1998-2004;Board of Directors of the Conservation Lands Foundation 2017 - 2020. Member of the ABA Accreditation Committee,2017-2019. Enrolled member of the Chickasaw Nation of Oklahoma,a federally recognized Native American nation.[40] Washburn won the American Bar Association Spirit of Excellence Award in 2015. Washburn was inducted into the Chickasaw Hall of Fame in 2017.
Native American gaming comprises casinos,bingo halls,slots halls and other gambling operations on Indian reservations or other tribal lands in the United States. Because these areas have tribal sovereignty,states have limited ability to forbid gambling there,as codified by the Indian Gaming Regulatory Act of 1988. As of 2011,there were 460 gambling operations run by 240 tribes,with a total annual revenue of $27 billion.
The United States Department of the Interior (DOI) is an executive department of the U.S. federal government responsible for the management and conservation of most federal lands and natural resources. It also administers programs relating to Native Americans,Alaska Natives,Native Hawaiians,territorial affairs,and insular areas of the United States,as well as programs related to historic preservation. About 75% of federal public land is managed by the department,with most of the remainder managed by the Department of Agriculture's Forest Service. The department was created on March 3,1849. It is headquartered at the Main Interior Building,located at 1849 C Street NW in Washington,D.C.
Larry J. Echo Hawk is an American attorney,legal scholar,and politician. A member of the Democratic Party,Echo Hawk served under U.S. President Barack Obama as the United States Assistant Secretary of the Interior for Indian Affairs from 2009 to 2012. He previously served as the Attorney General of Idaho from 1991 to 1995,the first Native American elected to the position,and spent two terms in the Idaho House of Representatives. In 2012,he was called as a general authority of the Church of Jesus Christ of Latter-day Saints. As of 2022,Echo Hawk is the last Democrat to have served as Attorney General of Idaho.
The Bureau of Indian Affairs (BIA),also known as Indian Affairs (IA),is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to Native Americans and Alaska Natives,and administering and managing over 55,700,000 acres (225,000 km2) of reservations held in trust by the U.S. federal government for indigenous tribes. It renders services to roughly 2 million indigenous Americans across 574 federally recognized tribes. The BIA is governed by a director and overseen by the Assistant Secretary for Indian Affairs,who answers to the Secretary of the Interior.
An American Indian reservation is an area of land held and governed by a U.S. federal government-recognized Native American tribal nation,whose government is autonomous,subject to regulations passed by the United States Congress and administered by the United States Bureau of Indian Affairs,and not to the U.S. state government in which it is located. Some of the country's 574 federally recognized tribes govern more than one of the 326 Indian reservations in the United States,while some share reservations,and others have no reservation at all. Historical piecemeal land allocations under the Dawes Act facilitated sales to non–Native Americans,resulting in some reservations becoming severely fragmented,with pieces of tribal and privately held land being treated as separate enclaves. This jumble of private and public real estate creates significant administrative,political,and legal difficulties.
The United Keetoowah Band of Cherokee Indians in Oklahoma is a federally recognized tribe of Cherokee Native Americans headquartered in Tahlequah,Oklahoma. According to the UKB website,its members are mostly descendants of "Old Settlers" or "Western Cherokee," those Cherokee who migrated from the Southeast to present-day Arkansas and Oklahoma around 1817. Some reports estimate that Old Settlers began migrating west by 1800,before the forced relocation of Cherokee by the United States in the late 1830s under the Indian Removal Act.
The Indian Gaming Regulatory Act is a 1988 United States federal law that establishes the jurisdictional framework that governs Indian gaming. There was no federal gaming structure before this act. The stated purposes of the act include providing a legislative basis for the operation/regulation of Indian gaming,protecting gaming as a means of generating revenue for the tribes,encouraging economic development of these tribes,and protecting the enterprises from negative influences. The law established the National Indian Gaming Commission and gave it a regulatory mandate. The law also delegated new authority to the U.S. Department of the Interior and created new federal offenses,giving the U.S. Department of Justice authority to prosecute them.
Cobell v. Salazar is a class-action lawsuit brought by Elouise Cobell (Blackfeet) and other Native American representatives in 1996 against two departments of the United States government:the Department of Interior and the Department of the Treasury for mismanagement of Indian trust funds. It was settled in 2009. The plaintiffs claim that the U.S. government has incorrectly accounted for the income from Indian trust assets,which are legally owned by the Department of the Interior,but held in trust for individual Native Americans. The case was filed in the United States District Court for the District of Columbia. The original complaint asserted no claims for mismanagement of the trust assets,since such claims could only properly be asserted in the United States Court of Federal Claims.
The Brothertown Indians,located in Wisconsin,are a possible Native American tribe formed in the late 18th century from communities of so-called "praying Indians",descended from Christianized Pequot,Narragansett,Montauk,Tunxis,Niantic,and Mohegan (Algonquian-speaking) tribes of southern New England and eastern Long Island,New York. In the 1780s after the American Revolutionary War,they migrated from New England into New York state,where they accepted land from the Iroquois Oneida Nation in Oneida County.
Donald "Del" Laverdure was the Principal Deputy Assistant Secretary of Indian Affairs at the Department of the Interior and also served as the Acting Assistant Secretary,overseeing the Bureau of Indian Affairs and Bureau of Indian Education. He is also a former assistant professor of Law &Director of the American Indian Law Program at Michigan State University College of Law. He has served as Chairman of the Crow Nation Judicial Ethics Board,and Appellate Judge of the Keweenaw Bay Indian Community.
The National Indian Gaming Commission is a United States federal regulatory agency within the Department of the Interior. Congress established the agency pursuant to the Indian Gaming Regulatory Act in 1988.
Ada Elizabeth Deer was an American scholar and civil servant who was a member of the Menominee Indian Tribe of Wisconsin and a Native American advocate. As an activist she opposed the federal termination of tribes from the 1950s. During the Clinton administration,Deer served as Assistant Secretary of the Interior for Indian Affairs.
Indian termination is a phrase describing United States policies relating to Native Americans from the mid-1940s to the mid-1960s. It was shaped by a series of laws and practices with the intent of assimilating Native Americans into mainstream American society. Cultural assimilation of Native Americans was not new;the belief that indigenous people should abandon their traditional lives and become what the government considers "civilized" had been the basis of policy for centuries. What was new,however,was the sense of urgency that,with or without consent,tribes must be terminated and begin to live "as Americans." To that end,Congress set about ending the special relationship between tribes and the federal government.
The Tribal Law and Order Act of 2010 is a law,signed into effect by President Obama,that expands the punitive abilities of tribal courts across the nation. The law allows tribal courts operating in Indian country to increase jail sentences handed down in criminal cases. This was a major step toward improving enforcement and justice in Indian country.
The Koi Nation of the Lower Lake Rancheria is a federally recognized tribe of Southeastern Pomo people in northern California. Their name for their tribe is Koi Nation of Northern California,from their traditional village,Koi,once located on an island in Clear Lake.
The United States public policy agenda on issues affecting Native Americans under the Obama administration includes the signing of the Tribal Law and Order Act of 2010,which allowed tribal courts to extend and expand sentences handed down to them in criminal cases,strengthening tribal autonomy. Obama also supported and enforced the Executive Order 13175,which requires the federal government to consult with tribal governments when deliberating over policies and programs that would affect tribal communities. Under the Obama Administration was also the launching of Michelle Obama's program Let's Move In Indian Country,which aims to improve opportunities for physical activity,to increase access to healthy food in tribal communities,and to create collaborations between private and public sectors to build programs that will end childhood obesity in Native communities. Obama also supported tribal communities through certain provisions of the American Recovery and Reinvestment Act of 2009,which allocated $510 million for rehabilitation of Native American housing,and the settlement of the Keepseagle case,a lawsuit against the United States Department of Agriculture for discriminating against tribal communities by not allowing them equal access to the USDA Farm Loan Program. Most recently,Obama signed Executive Order 13592,which seeks to improve educational opportunities for American Indian and Alaska Natives. Obama has been praised by many tribal leaders,including those who claim he has done more for Native Americans than all of his predecessors combined.
Pilar M. Thomas is an American lawyer and a member of the Pascua Yaqui Tribe of Arizona,for which she has served as attorney. She has worked on water rights,treaty rights,gaming law,and coordinated federal agency policies and efforts in tribal energy development. In addition to working in the U.S. Departments of Justice and Energy,she has served as the Deputy Solicitor of Indian Affairs for the U.S. Department of the Interior. Thomas participated in negotiations for the U.S. adoption of the United Nations’Declaration on the Rights of Indigenous People,and the Department of Interior’s tribal lands leasing reform.
Debra Anne Haaland is an American politician serving as the 54th United States Secretary of the Interior. A member of the Democratic Party,she previously served as the U.S. representative for New Mexico's 1st congressional district from 2019 to 2021 and as chair of the New Mexico Democratic Party from 2015 to 2017. Haaland is a Native American and is an enrolled member of the Laguna Pueblo tribe.
Jeannie Hovland is a Santee Dakota Sioux tribal member and an American government official. Hovland serves as the vice chair of the National Indian Gaming Commission and is the director of the Office of Self-Regulation. She was previously the commissioner for the Administration for Native Americans and deputy assistant secretary for Native American affairs.
Kevin Gover is currently the Under Secretary for Museums and Culture at the Smithsonian. He had served from 2007 until January 2021 as the director of the National Museum of the American Indian. A citizen of the Pawnee Nation of Oklahoma,he previously served as the Assistant Secretary of the Interior for Indian Affairs under President Bill Clinton.
↑ The Mechanics of the Indian Gaming Management Contract Approval Process, 9 GAMING LAW REVIEW 333 (2004), cited in Wells Fargo Bank v. Lake of the Torches Economic Development Corp., 658 F.3d 684, 701 n.16 (7th Cir. 2015)
↑ Recurring Problems in Indian Gaming, 1 WYOMING LAW REVIEW 427 (2001), cited in In re: Gaming Related Cases, 331 F.3d 1094 (9th Cir. 2003) (majority opinion by Circuit Judge W. Fletcher);
↑ Austin R. Vance, A Pretty Smart Answer: Justifying the Secretary of the Interior's "Seminole Fix" for the Indian Gaming Regulatory Act, 40 Am. Ind. L. Rev. 325 (2016)
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