In recognition of Earth Week, Hilary Tompkins, a partner at Washington, D.C. law firm Hogan Lovells and graduate of Stanford Law School, joined Stanford Woods Institute for the Environment Director Chris Field for a conversation on her work on public lands, environmental law, and Native American affairs, and her time at Stanford. Tompkins was appointed by former President Obama as solicitor of the U.S. Department of the Interior (DOI), becoming the first Native American to hold this position.
Edited excerpts and video of the April 21, 2021, conversation are below.
How did your time at Stanford Law shape your career?
It was really a wonderful decision I made to go to Stanford Law. I was living on my tribe’s reservation in Window Rock Arizona, and had a lot of time on my hands to apply to law school. I took the l sat, and then applied to a bunch of schools, some in the northeast and one in the West, Stanford, and was really fortunate to get accepted to Stanford. I met with a lot of incredible students and I was really drawn to the strong Native American program too. Definitely Professor Buzz Thompson had a huge influence on me. He told me about his focus on environmental law and that was really intriguing to me. So taking his class just opened up that new area of expertise and I loved it and was inspired by his class, and that really propelled me to stay focused in that area. The other thing that was really cool about Stanford Law was that they did a class one semester with the Navajo Nation Supreme Court Justice, Raymond Austin, and he came in and taught Navajo traditional law, which is our traditional body of law based on our culture and our legal system. And that was fabulous, and that was really amazing to be at this elite law school, learning about my own tribe and learning about our own legal system. So that had a huge influence on me as well. It made me really proud about our traditional knowledge and being a native person entering into the legal field.
What are some of the core principles of Navajo law?
I actually would talk a lot about this when I was Solicitor of interior, because I saw there was a lot of opportunities to apply Navajo traditional law. One of the bedrock principles is throughout life, striving for harmony in your life, and it's called Hózhó. Every person's life goal is to be in balance, to “walk in beauty” (maybe you have heard that as a Navajo saying). And in a very simple way, the right side of your body is your peace way and the left side of your war way, and they are always in flux. You can’t have full peace without having some struggle, and life struggles also help you find peace. So they're both essential, but it's a matter of how you balance those. I think a lot of legal issues and conflicts and issues about restoring, healing, and reconciliation is very similar to that Navajo principle of Hózhó, so I used that a lot in my work when I could see a new challenge. How can we restore balance and peace to this situation?
How do you see the philosophy of balancing the protection and the extraction missions of the Department of Interior?
The Department of Interior is really unique in that it has multiple mission mandates that are conflicting sometimes. There's a basis for interior to say that in this place we are going to focus on conservation and protection and stewardship, these public lands are all Americans’ lands, and we need to preserve them for future generations. And then there's also the authority to develop public lands for energy resources. And there's discretion for interior to decide, are we going to focus on fossil fuels or are we going to focus on renewables, which we're seeing in this administration that is a top priority, citing renewables on public lands, solar and wind. And the key is finding the locations to do those projects as energy projects that minimize the impacts to environmental and cultural resources. It's my belief that Interior does have the legal statutory tools to figure out how to strike that balance. Where it gets tricky is when it does appear out of balance.
Can speak to where we are in terms of recognizing important cultural and spiritual sites?
Only recently have Native voices been heard on these issues, even when I was there, under President Obama. As a native woman in a leadership role bringing that Native perspective to the table, that was new and sometimes I could tell it was a little unsettling to folks. It's important to evaluate how native perspectives and traditional knowledge can contribute. I mean a lot of the issues we're facing with climate change, there's traditional teachings and knowledge that can help create resiliency and sustainability. I think looking at co-management with tribes of national parks or national wildlife refuges is a very important area of focus, because these lands used to be tribal lands. In addition, getting permanent protection for areas. A good example is Badger-Two Medicine up near Glacier National Park. We cancelled oil and gas leases in that area and there was one holdout who litigated and wanted to keep the lease. Congress had already withdrawn that area from future leasing. That's an area that's been talked about for either a national monument designation or legislation. It's a sacred area to the Blackfeet Nation. So I think there are those places across the country where it's the right thing to do. And it would go a long way to give that permanent protection there.
How can we create a more robust integration of tribal decision making into Federal Lands Management?
There's been a little bit of it through inter-governmental agreements between the National Park Service and tribes, but it doesn't have that permanence, and they can be ended if there's a new point of view that says no, we don't want to work with the tribes on this. So I do think there's a need for some legislative language to authorize Interior agencies to engage in Co-management. I think that would be really key to give it some teeth. And then, for instance at Navajo we have Canyon De Shea, a national park right in the middle of the reservation. And I think that's a great example of where providing for Navajo c- management of that park would benefit the Navajo Nation not only with its local knowledge and perspective, but also with the ability to manage a place that they know better than anybody. So again, there's places where we can make these partnerships with Indian Country. At Interior, a lot of times it was like, oh, we can't do that we don't have the authority to do that that sort of thing. And that can over complicate things. I think getting tribes to have some of that statutory authority to engage in that way with the federal government would be a good and needed change.
Where can we find the overlap between the legal and cultural values of the federal government and tribes?
I think we're getting there. When I first started as Solicitor there was the Cobell breach of trust case, and then over 100 tribes had sued Interior for breach of trust. So there was just a complete breakdown in that relationship. We were able to settle, most of that most of those cases. What is going to be key is somehow dealing with the history. And there's just a lot of history, a lot of grounds for mistrust. And I think it's going to involve having people who are open to listening and hearing about what Native people have been through, and then how to make it better moving forward with Native people providing informed consent, and being equal partners, because it's been such a long history of the dominant society affecting the lives of native people without consent. I think we did some of that under the Obama Administration but I think more of that has to happen to then start to build these partnerships and trust to do these projects together.
As a tribal member, how did you handle it when you felt there was a conflict between what federal law says and what the Navajo principles would say to do?
It's multi layered answer. It was important to me as a native person to assume roles that were in mainstream society, and to understand how the dominant society thinks about these things. And I actually feel like now that I know that I'm much more informed as an advocate for tribes. Secondly, I'm a lawyer. So as any lawyer, you represent your client, so I was representing DOI. And sometimes there were instances where we could not do what the tribes wanted. But the one thing that I felt was important in that instance, was to meet with the tribe to tell them why we couldn't do what they wanted and to talk about other options or pathways to get to where they wanted to be. And in my almost eight years of service, I did have to tell some tribes at times we couldn't do what they wanted. But it was really heartening that when we would sit down and talk about it, every single time the tribal leader said, “Hillary, thank you. We're disappointed. But we appreciate you talking to us and telling us. We've been waiting 10 years to have this conversation. And you're honest with us.” And I think that while it's difficult to deliver hard news, that is a large part of what has been missing is having that honest, straightforward, transparent communication with tribal leadership. So that was important to me.