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To renew call Telephone Center, 333-S400 UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN L161— O-1096 [COMMITTEE PRINT] AMERICAN INDIAN POLICY REVIEW COMMISSION FINAL REPORT SUBMITTED TO CONGRESS MAY 17, 1977 VOLUME ONE OF TWO VOLUMES DFPOSrrORYi .' v-/ 1 li UNI Printed for the Use of the American Indian Policy Review Commission 1/ [COMMITTEE PRINT] ^ AMERICAN INDIAN POLICY REVIEW COMMISSION FINAL REPORT SUBMITTED TO CONGRESS MAY 17, 1977 VOLUME ONE OF TWO VOLUMES Printed for the Use of the American Indian Policy Review Commission U.S. GOVERNMENT PRINTING OFFICE 92-185 WASHINGTON : 1977 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 AMERICAN INDIAN POLICY REVIEW COMMISSION Senator JAMES ABOUREZK, South Dakota, Chairman Congressman LLOYD MEEDS, Washington, Vice Chairman Senator LEE METCALF, Montana JOHN BORBRIDGE, Tllngit-Haida Senator MARK HATFIELD, Oregon LOUIS R. BRUCE, Mohawk-Sioux Congressman SIDNEY R. YATES, Illinois ADA DEER. Menominee Congressman SAM STEIGER, Arizona 1 ADOLPH DIAL, Lumbee Congressman DON YOUNG, Alaska 2 JAKE WHITECROW, Quapaw-Seneca-Cayuga Ernest L. Stevens, Oneida, Executive Director KiRivE KiCKiNGBiRD, Kiowa, Ocncral Counsel Max I. RicHTMAN, Professional Staff Member 1 Served in the 94th Congress. 2 Replaced Congressman Steiger on the Commission. fH) American Indian Policy Review Commission CONGRESS OF THE UNITED STATES f c Ofpkk BuiLDTMa Amhcx No. 2 2d AMD D STwcm. SW. ASHINGTON, O.C. 205IS PHONE: 202^I2S-IZM May 17, 1977 Vice-President Walter F. Mondale United States Senate Washington, D. C. Congressman Thomas P. O'Neill Speaker of the House of Representatives VJashington , D . C . Gentlemen : I am submitting herewith the report and reconinendations of the American Indian Policy' Review Commission. The report is responsive to the provisions of P. L. 93-580 which established this Commission and charged it with the responsibility to conduct a comprehensive review of the historical and legal developments underlying the Indians' relationship with the Federal Government and to determine the nature and scope of necessciry revisions in tlie formulation of policy and programs for the benefit of Indians. ITie Commission's recoirmendations have been arrived at after a care- ful review by the Conmission and 11 Task Forces of the Federal-Indian relationship. The Cormassion ' s Organic Act requires that any recommendations in- volving the enactment of legislation shall be referred by the President of the Senate or the Speaker of the House of Representatives to the ap- propriate standing committee of the Senate and House of Representatives respectfully, and that such committees shall report thereon to the re- spective house within two years. We urge you to support early implementa- tion of the Commission's reconmendations to assure that the Federal Govem- irent's responsibility to the Indian people is met. Sincerely, J James Abourezk ChairTn£in (lU) EXECUTIVE STAFF Director Ernest L. Stevens, Oneida General Counsel Professional Staff MemJ>er KiRKE K. KiCKixGBiED, Kiowa Max I. Richtman Clerical Assistants Ernestine Ducheneacx, Salish and Kootenai RosEMARiE Cornelius, Sioux-Oneida ^'INONA Jamieson, Seneca Special Assistant to the Commission A. T. Anderson, ilohawk-Tuscarora-Cayuga Director of Research Gilbert Hall PROFESSIONAL STAFF Catherine Romano Harrt Ross Laurel Rule Richard Shipman Sarah Sneed, Clierokee Eileen Stillwaggon Tony Strong, Tlingit-Klukwan John Sykes, Sr. Peter Taylor, Special Counsel Kathryn Harris Tijerino, Comanclie^ Grace Thorpe, Sac and Fox Donald Wharton, Special Counsel Julia Zafren Suzanne Alin Paul Alexander, Special Counsel Laurel Beedon JENICE Bigbee. Comanche Dennis Carroll Ernest Downs Nancy Evans Thomas Fassett, Seneca Ella Mae Horse, Cherokee Carol Kirk John Kough Thomas McGeady Jana McKeag. Cherokee Margaret Pena Charles Peone, Wiyot Michael Poolaw, Kio-wa (V) VI TASK Hank Adams, Asslnlbolne-Sioiix Wilbur Atcitty, Navajo Earl Barlow, Blackfeet Robert Bojorcas, Klamath Sherwin Broadhead Matthew Calac, Rincon John Echohawk, Pawnee Alfred Elgin, California Pomo Jerry Flute, Sisseton-Wahpeton Raymond Goetting, Caddo George Hawkins. Southern Cheyenne Jo Jo Hunt, Lumbee Yvonne Knight, Ponca Peter MacDonald, Navajo Phillip Martin, Mississippi Choctaw FORCE MEMBERS Lillian McGarvey, Aleut Lorraine Misiaszek, Colville Edward Mouss, Creek-Cherokee Douglas Nash, Nez Perce Alan Parker, Chippewa-Cree Browning Plpestem, Otoe-Missouri-Osage Luana Reyes, Colville Dr. Everett Rhoades, Kiowa William Roy Rhodes, Pima Helen Scheirbeck, Lumbee Kenneth Smith, Wasco Reuben Snake, Winnebago John Stevens, Passamaquoddy Peter Taylor Gail Tliorpe, Cherokee-Creek Mel Tonasket, Colville Paul Alexander James Bluestone. Hidatsa Allan Cayous, Apache-Calvilla Michael Cox, Creek Bruce Davies, Oglala Sioux Maria Facchina Karl Funke, Keeweenaw Bay, Chippewa Amos Hopkins, Kiowa Stephen LaBoueff, Blackfeet TASK FORCE SPECIALISTS Paul Littlechief, Kiowa-Comanche Roberta Minnis, Colville Kathy McKee, Missouri Cherokee Lorraine Ruffing Rudy Ryser, Cowlitz Sheri Scott George Tomer, Penobscot-Maliseet Donald Wharton Patricia Zell, Navajo-Arapaho CLERICAL AND SECRETARIAL Arquero, E\xa., Cochlte Pueblo Linda Bethea Gail Bradford Alice Clark Marilyn Dufrane. Mohawk Lisa Elgin, Oalif«rnia Pomo Doris Gadson Cynthia Gellner Maxine Hill, Onondaga Janet Hopkins Darcy Johnson Dianne Johnson Cheryl Lewis Ernestine Lewis Gail McDonald, Mohawk Barbara Morgan Barbara W. Nicholson, Colville Dawn Oakes, Mohawk Deborah Pope Pat Porter Colleen Rainey Carole Roop Emmeline Shipraan Cynthia Suver Regina Tsosie, Navajo Barbara Thomas Toni Villagecenter, Sioux Cheryl Wheeler Annette Young, Navajo I CONTENTS Page Introduction 1 A policy for the future 3 Summary of recommendations 11 Ctiapter : 1. Captives witliin a free society 47 2. Contemporary Indian conditions 83 3. Distinctive doctrines of American Indian law 95 4. Trust responsibility 121 5. Tribal govei'nment 139 6. Federal administration of Indian policy 227 7. (^he economics of Indian country^ 301 8. Community services^ 367 9. Off-reservation Indians 425 10. Terminated Inldians 443 11. Nonrecognized Indians 457 12. Special problems 485 13. General problems Separate views of Commissioners of the American Indian Policy Review Commission : Separate dissenting views of Congressman Lloyd Meeds, Democrat of Washington, vice chairman 567 Separate views of Senator James Abourezk, chairman 613 Separate views of Indian Commissioners 619 (VII) INTRODUCTION A history, once thought ancient and dead, has risen to challenge this generation of Americans. As never before, since the days of the last century when they were forced to fight militarily for their lands, their freedoms, and their existence, the Indian peoples of our country are today stirring both the consciousness and conscience of the Govern- ment and all elements of the Nation. It is the fortune of this generation to be the first in our long history to listen attentively to the Indians, and thereby to begin to understand what they are saying, to recognize realistically their own points of view, as a unique part of our population, and to heed their voices for the righting of wrongs, the ending of frustrations and despair, and the attainment of their needs and aspirations as Indians and as free and proud Americans. It is generally believed, mistakenly, that the Federal Government owes the American Indian the obligation of its trusteeship because of the Indians' poverty, or because of the Government's wrongdoing in the past. Certainly American Indians are stricken with poverty, and without question the Government has abused the trust given it by the Indian people. But what is not generally known, nor understood, is that within the federal system the Government's relationship with the Indian people and their sovereign rights are of the highest legal stand- ing, established through solemn treaties, and by layers of judicial and legislative actions. Perhaps someday in the future, the Indian people may return to the bargaining table to renegotiate and reshape those solemn agree- ments. But it must be done as equals, and not as one party coming, on its knees, pleading as inferiors. For the Federal Government to continue to unilaterally break its agreement, especially to a people as unique to our history as are the Indians, would constitute moral and legal malfeasance of the highest order. Today, the past must be used as a backdrop, rather than as an in- dictment. But it is a backdrop that explains most of what must be known about the present-day condition of Indians and their relations with the Government and the rest of the American people. It is a way of seeing into the mind of the Indian people of today. From the earliest days of European settlement in what is now the United States, and, more pertinently, since the founding of the Kepublic, the Indians have been subjected to ambivalent attitudes and policies by the ad- vancing non-Indian society and, after 1789, by the United States Gov- ernment itself. On the one hand, every method has been employed to force them to cease being Indians and to conform to the dominant society, while on the other hand they have been led to believe, in part and from time to time, that the Government would support their right to survive as Indians and to practice their own culture — a'determina- (1) i tion, which despite every adversity and pressure, they have main- tained to this day. They have survived. But it has been at a great cost to them. Th( history of social experimentation of the Indians by those who gainec mastery over their lives and fortunes resulted in decades of confusion, hopelessness, and poverty, which the Indian people have assertec^ could never be corrected until they themselves could again be allowec to determine their own lives and, like all free Americans, manage unC control their own affairs. Today we must ask the central question : Is the American nation— now 200 years old, and 100 full years beyond the era of the Little Big^ horn — yet mature enough and secure enough to tolerate, even to eji- courage, within the larger culture, societies of Indian people who wish to maintain their own unique tribal governments, cultures, and religions? As Felix Cohen once said : If we fight for civil liberties for our side, we show that we believe not in civil liberties but in our side. But when those of us who never were Indians and never expect to be Indians fight for the Indian cause of self-government, we are fight- ing for something that is not limited by accidents of race and creed and birth ; we are fighting for what Las Casas, Vitoria and Pope Paul III called the in- tegrity or salvation of our own souls. AVe are fighting for what Jefferson called the basic rights of man. We are fighting for the last best hope of earth. And these are causes which should carry us through many defeats. The question goes far beyond that of "restitution'' for past wrongs. From the misdirected present, can the United States Government re- direct its relations with the American Indians to enable them to deter- mine their own lives now, and in the future ? The question is ringing loudly in our ears today. Nor will it be stilled — todajT^ or tomorrow — until it is answered. A POLICY FOR THE FUTURE This final report of the American Indian Policy Review Commission represents 2 years of intensive investigative work encompassing the entire field of Federal-Indian relations. Tlie last such investigation occurred almost 50 years ago. The conclusions of that investigation and its condemnation of the policies which had governed Federal ad- ministration over the preceding 50 years brought an abrupt shift in the statutory policies governing the Federal-Indian relations, a com- plete repudiation of the policies which had controlled from the late ISOO's to the mid-1930's. And yet the American Indian today finds himself in a position little better than that which he enjoyed in 1928 when the Meriam Report was issued. It has been the fortune of this Commission to be the first in the long history of this Nation to listen attentively to the voice of the Indian rather than the Indian expert. The findings and recommenda- tions which appear in this report are founded on that Indian voice. It can only be hoped that this Commission will be seen as a watershed in the lo]ig and often tarnished history of this country's treatment of its original people. What are the explanations for the circumstances in which the In- dian finds himself today? First and foremost are the consistently damaging Federal policies of the past — policies which sought through the first three-quarters of the 19th century to remove the Indian people from the midst of the European settlers by isolating them on reservations; and policies which after accomplishing isolation were then directed towaixl breaking down their social and governmental structures and throwing their land, water, timber and mineral re- sources open to exploitation by non-Indians. These policies were repudiated by Congress with passage of the Indian Reorganization Act of 1934, but by this time severe damage had been done. It is the legacy of these policies with which the Indian people attempt to cope today; it is the legacy of these policies which this Commission examines in this report; and it is the legacy of these policies Avhich the people of the United States must resolv^e over the next years. One of the greatest obstacles faced by the Indian today in his di-ive for self-determination and a place in this Nation is the American public's ignorance of the historical relationship of the United States with Indian tribes and the lack of general awareness of the status of the American Indian in our society today. To adequately formu- late a future Indian policy it is necessary to understand the policies of the past. For this reason the Commission has included extensive discussions of law and history in order to provide a foundation for understanding matters which affect Indian people. (3) Foundations or Federal Indian Law The relationship of the American Indian tribes to tlie United States is founded on principles of international law. It is a political relation : a relation of a weak people to a strong people; a relation of weak governments to a strong government; a relationship founded on treaties in which the Indian tribes placed themselves under the pro- tection of the United States and the United States assumed the obli- gation of supplying such protection. It is a relationship recogiiized in the law of this Nation as that of a domestic, dependent sovereign. It is a relationship which has sometimes in the past been honored but more frequently violated and at times even terminated. It is a rela- tionship which can and should be nurtured and cherished by this Na- tion. The fact that the United States has not chosen to disavow this relationship, has not chosen to simply abrogate its treaty commit- ments, has not chosen to withdraw its recognition of Indians as sepa- rate and distinct peoples with cultures, lands and governments of their own — these facts set the United States above other nations in its treatment of its native people, and provide a moral and legal setting from which a forward-looking policy of Federal-Indian relations must progress. No other course will do honor to this Nation; no other course can hold any future for the Indian people. Tlie fundamental concepts which must guide future policy deter- minations are : 1. That Indian tribes are sovereign political bodies, having the power to determine their own membership and power to enact laws and enforce them within the boundaries of their reservations, and 2. That the relationship which exists between the tribes and the United States is premised on a special trust that must govern the conduct of the stronger toward the weaker. The concept of sovereignty and the concept of trust are imperative to the continuation of the Federal-Indian relationship. These form the foundation upon which our entire legal relationship with the Indian tribes stands. These are not new precepts — they are old, dating from the origins of this Nation. It can only be said that if they had been consistently honored in spirit as well as in name, it would not have heen necessary to convene this Commission. Without recognition of these fundamental concepts acknowledging Indian rights, the work of this Commission will have been in vain, for without these concepts there is no future Indian policy — only Federal policy. The Commission recognizes that there is substantial controversy sur- rounding the concept of tribal sovereignity and the exercise of govern- mental authority by the tribes within their reservations. The Com- mission has devoted a significant portion of this report to analysis of [judicial decisions relating to the powers of Indian tribes. The trend of these decisions has favored the tribes in their efforts to achieve good government within the reservations. We approve of the judicial decisions which have thus far been rendered. But we caution that the powers exercised by tribes must bear a reasonable relationship to legiti- mate tribal interests such as protection of trust resources, mainte- nance of law and order, delivery of services, and protection of tribal government. This Commission has not pn'oposed any legislative action with rer, gard to the jurisdiction or authority of tribal governments. We have rejected any such effort as being premature and not warranted by any factual evidence. We note that there are some 287 tribal governments within the United States (there are approximately 80,000 State, coun- ty and municipal governments) and it is not feasible to attempt to legislatively determine the precise powers of each of these govern- ments in one legislative enactment. We also reject the notion that the jurisdictional reach of Indian tribes Avithin Indian country should be limited to their own membership alone. If such a position were adopted it could truly be said that the tribes were mere social clubs, an assem- bly of property owners, with no more authority than any civic associa- tion. This surely was not the result contemplated by the tribes when they entered into treaties with the United States. Nor is it a result to be ■■ desired by anyone today — Indian or non-Indian — when the counse- quences are analyzed. For in many areas of Indian country the only workable law enforcement authority present is that of the tribe. The Commission does not advocate that resolution of jurisdictional conflicts be left solely to the courts. To the contrary, we recommend . that State and county governments sit down with the tribal govern- ments and to the extent possible resolve their jurisdictional conflicts to their mutual satisfaction on the basis of mutual respect. To the ex- tent resolution cannot be achieved, then and only then will legislative action by the Congress be appropriate. Clearly there are many areas in which both the States and the tribes have a commonality of inter- est and the discussion of State and tribf^l jurisdiction should not be cast in totally adversary terms. The Tritst RESPONsiBiLiTY The concept of the trust relationship of the United States to the Indian peoi)le is one which is not well understood and is th.e subject of frequent debate regarding both its source and its scope. We have al- ready noted that the trust relationshij) is one of the two most im- portant concepts miderlying Federal-Indian law. This responsibility originates first from the treaties negotiated wit)i Indian tribes in which the United States acquired vast areas of land in exchange for its solemn commitment to protect the people and projjerty of the tribes from encroachment by U.S. citizens. Secondly, from statutory enact- ment dating from tlie Continental Congress to the present, regulating transactions between U.S. citizens and Indian people. A third major source of this responsibility arises from a course of dealing in which the United States in the latter half of the 19th century assumed do- minion and control over the people and property of Indian tribes, im- posing a vast array of regulatory authority over Indians and their property. "When the United States assumed this authority over Indian people, it accepted an accompanying responsibility to Indian people. While the exact parameters of the trust duty are not clearly defined, the Commission has concluded that it would not be desirable to at- tempt to spell out the duty in terms of statutory specificity. Like doc- trines of constitutional law, the trust duty must be considered a con- stantly evolving doctrine responsive to the changing circumstance of I 6 the times. Certain broad concepts have been agreed upon which we believe should guide future policy in relationship to the trust doctrine : 1. The trust responsibility to American Indians extends from the protection and enhancement of Indian trust resources and tribal self-government to the provision of economic and social programs necessary to raise the standard of living and social well being of the Indian people to a level comparable to the non-Indian society. 2. The trust responsibility extends through the tribe to the In- dian member, whether on or off the reservation. 3. The trust responsibility applies to all United States agencies and instrumentalities, not just those charged specifically with ad- ministration of Indian affairs. These and other details of the trust obligation are more fully dis- cussed in chapter four of this report. It is recognized that in many areas affected by the trust, particularly social programs. Congress it- self will determine the extent of the delivery of services. Chapter four ■contains numerous specific recommendations relating to the trust, in- •cluding a requirement for preparation and filing of Indian impact statements by Federal agencies proposing actions which will adversely affect trust resources, and recommendations for a resolution of the conflict of interest which presently pervades legal representation of Indian interests. The principles enumerated above are just that — gen- eral principles from which policy considerations must flow. J Federal Administration^ One of the most serious impediments to the development of Indian self-sufficiency today lies in Federal administration. Indian tribes, like non-Indian communities, are plagued by an excessive number of Fed- <^ral agencies offering different programs all of which must be inter- related in order to achieve full community development. Unlike non- Indian governments, however, Indian tribes and people often face difficulties posed by statutory language or administrative rulings that bar their eligibility for participation in programs. There is a continu- ing tendency on tlie part of Congress and the Executive to overlook Indian interests in the formulation of new legislation or programs. In recent years there has been substantial improvement in this respect, but it still remains a significant problem. Most serious is the lack of responsiveness, particularly on the part of the Bureau of Indian Affairs and Indian Health Service, to adhere to the principles of "self-determination" as expressed by Indians and the law. The problem of negative attitudes is compounded by an ex- cessive administrative structure which interferes with the delivery of funds to Indian people. Federal administrators and their ■excessive field structure compete with Indians for scarce cono-ressional appropriations. ^ Finally, Indian project initiatives must be encouraged through a program, planning, and budget process which is guided by Indian priorities rather than to satisfy the needs of a self-perpetuatino- bureaucracy. '^ It is the conclusion of this Commission that : ^ 1- The executive branch should propose a plan for a consoli- dated Indian Department or independent agency. Indian pro- grams should be transferred to this new consolidated agency where appropriate. 2. Bureaucratic processes must be revised to develop an Indian budget system operating from a ''zero" base, consistent with long- range Indian priorities and needs. Tliose budget requests by tribes should be submitted without interference to Congress. 3. Federal laws providing for delivery of domestic assistance to State and local government must be revised to include Indian tribes as eligible recipients. 4. To the maximum extent possible, appropriations should be delivered directly to Indian tribes and organizations through grants and contracts; the first obligation being to trust require- ments. / vEcoNOMic Self-sufficiency \/ Indian lands encompassed approximately 50 million acres located on over 200 reservations in some 26 States. A 1975 General Account- ing Office report on Indian natural resources estimated that Indian lands include : 5.3 million acres of commercial forest land, including about 38 billion board feet of timber; 44 million acres of rangeland; and 2.5 million acres of cropland. Indians have superior claims to water to develop their lands, and they have valuable rights to share in the harvest of fish in the Pacific Northwest. Deposits of oil and gas, coal, uranium and phosphate are found on some 40 reservations in 17 States. Production of coal on Indian lands in 1974 was 35.8 percent of the combined production on Federal and Indian lands (1.9 percent of the Nation's total) ; excluding offshore oil production, Indian lands produced 13.6 percent of the total pro- ducj^ion value of oil and gas on all Federal and Indian lands (4.4 percent of the Nation's total) ; phosphate production on Indian land was 35.4 percent of production on Federal and Indian land (4.9 per- cent of the Nation's total) ; and Indian lands produced fully 100 per- cent of the uranium value produced on all Federal and Indian lands. And yet, for the most part, Indian reservations remain under- developed and Indian people lack credit, remain poor, uneducated and unhealthy. From the standpoint of personal well-being the Indian of America ranks at the bottom of virtually every social statistical indicator. On the average he has the highest infant mortality rate, the lowest longevity rate, the lowest level of educational attainment, the lowest per capita income and the poorest housing and transpor- tation in the land. How is this disparity between potential wealth and actual poverty to be explained? At least one explanation lies in the fact that a very- significant part of this natural abundance is not controlled by Indians at all. Fractionated land ownership engendered by Federal laws impedes efficient development projects in timbering, farming, and ranching. Significant quantities of Indian natural resources are leased out to non-Indian enterprises at rates significantly less than that derived by non-Indians for comparable lands. Access to development credit is often difficult to obtain, and tribes often lack the technical skills necessary to undertake development of their own resources. Eoads, communications systems and other elements of economic infra- structure are frequently insufficient to support development efforts. 8 Indian opinion is virtually unanimous in the desire for economic self-sutiiciency. Certainly not all tribes will be able to fully attain this g'oal, but with proper support from the Federal Government, many can. Clearly it lies within the best interests of the Indian tribes and the United States to give full support to the development of eco- nomic enterprises by the tribes. 1. The first order of business of future Indian policy must be the development of a viable economic base for the Indian communities. 2. Adequate credit systems must be established for Indian eco- nomic development projects; funds must be established to provide for land acquisition and consolidation; and policies must be adopted which will favor Indian control over leases of their own natural resources. 3. Technical assistance must be available to tribes both in the l^lanning and management stages of operations. 4.' Every effort must be made to encourage and aid tribes in ■ ^ the development of economic projects relevant to their natural " ' i;esdurce base. Restoration and Recognition Despite recent policies which have encouraged self-determination and which have reaffirmed the permanent nature of tribal govern- rrients, there are many tribes which suffer because of past policies which failed to recognize their status, or sought to end it. Almost 100 tribes' relationship to the Federal Government was legislatively ended dui'ing the 1950's when Congress adopted a policy called "termina- tion." One hundred thirty other tribes ' have never been recognized by the Federal Government usually because of bureaucratic over- sight, and they too suffer because their status is not defined. There is no reason why some 200 tribes should not benefit from the relationship the United States maintains with other tribes, and there is no reason why Federal policy should not be implemented equitably to all tribes. 1. Tribes which were terminated must be restored to their for- mal political status and Congress must establish a legal process for restoration. 2. Tribes which have been overlooked, forgotten, or ignored must be recognized as possessing their full rights as tribes. Urban Indians Through policies of "relocation" the United States sought to re- move Indians from the reservation environment to cities where they would assimilate with non-Indian people. These policies were poorly administered and unsuccessful in attaining their goal. The United States bears some liability for the effect of these policies on Indian people, yet today Indian people who live in cities find it extremely difficult to avail themselves of the minimal federal services they would readily receive on reservations. Aside from this question of respon- sibility for past policies, the United States should also recognize that Indian people in urban areas have special needs which Government ^ "Tribes " as It Is used here, includes bands and other Indian groups, and is more clearly defined on pp. 461-462. 9 programs could help to alleviate. Unfortunately, Federal-Indian pro- grams frequently ignore off-reservation Indians, and the structures which urban Indians have established themselves and which could aid in the administration of Federal programs. 1. Federal Indian programs should address tlie needs of oif- reservation Lidians. 2. Programs directed to the needs of ui"ban Indians should en- courage and utilize urban Indian service centers. These elements make up the major thrust of this Commission's i-e- port. They are, in large measure, the direct result of 11 task forces which were assigned by Congress to investigate major areas of con- temporary importance to Indian people. Task force studies were man- dated in the following areas : 1. Trust Eesponsibilities and the Federal-Indian Relationship 2. Tribal Government 3. Federal Administration and the Structure of Indian Affairs 4. Federal, State, and Tribal Jurisdiction 5. Indian Education 6. Indian Health 7. Reservation and Resource Development and Protection 8. Urban and Rural Non-reservation Indians 9. Indian Law Consolidation, Revision and Codification 10. Terminated and Non-Federally Recognized Indians 11. Alcohol and Drug Abuse These areas reflect Congress's initial understanding that Indian Af- fairs were plagued by the following problems, that: (1) the trust relationship and treaty rights were poorly defined and confusing con- cepts basic to Indian law; (2) tribal governments held a poorly de- fined and seldom-understood status in the Federal system; (3) Indian people were perplexed and impeded by a massive bureaucracy whose function and merit were perpetually questioned by Indians and non- Indians alike; (4) Indians and non-Indians on reservations were en- meshed in jurisdictional disputes with municipal, county. State, and Federal powers; (5) education of Indians was questionably adminis- tered and had disappointing results; (6) Indian health was sub- standard; (7) reservations were underdeveloped and economic plan- ning was insufficient for development: (8) off-reservation Indians were alienated and disenfranchised; (9) Federal-Indian laws were complex and often absolute, and never received the scrutiny necessary for proper revision; (10) a number of tribes were unreasonablj^ ex- cluded from the Federal-Indian relationship; (11) alcoholism and drug abuse were afflictions which caused especially severe problems for the Indian population. Additionally, two special task force reports were prepared on the Management Study of the Bureau of Indian Affairs and on Alaskan Native Issueg. The Commission has utilized the work of these task forces in prepar- ing this final report. Not all of the findings and recommendations of the task forces have gained expression here, but this broad statement of Indian policy falls generally into the context of the task force conclusions. A summary of the specific recommendations of this Commission follows in the next chapter. 92-185—77 2 SUMMARY OF RECOMMENDATIONS Two hundred six specific recommendations are set forth below and numbered consecutively beginning with chapter one and concluding in chapter thirteen. Chapter One. — Captives Within a Free Societt No recommendations. Chapter Two. — Contemporary Conditions The Corrmiission recorrvmeTids that : 1. Congress require the Assistant Secretary of Indian Affairs to provide a comprehensive annual report on Indian matters which will contain reliable, current, and accurate data. The Secretary of Interior be directed to gather and maintain mate- rial for this report from all Government agencies serving Indians. The report be organized to present facts relating to Indian treaties, agreements, and Executive orders; current land, population, tribal government, economic, health, welfare, education, and housing statis- tics in Indian communities ; material relating to the use of natural re- sources on Indian land; and information on administration of all Indian programs. A sample format for this proposed report can be found in appendix C. Chapter Three. — Distinctive Doctrines of American Indian Law No recommendations. Chapter Four. — Trust Responsibility The Corn/mission rec&m/mendts that: 2. Congress reaffirm and direct all executive agencies to administer the trust responsibility consistent with the following principles and procedures. The rationale for each proposal follows the Commission's statements. In carrying out its trust obligations to American Indians (including Alaskan Natives), it shall be the policy of the United States to recognize and act consistent with these principles of law : The trust responsibility to American Indians is an established legal obligation which requires the United States to protect and enhance Indian trust resources and tribal self-government and to provide economic and social programs necessary to raise the standard of liv- mg and social well-being of the Indian people to a level comparable to the non-Indian society. +i,''""i,'"^^^*®^^ involving trust resources, the United States be held to the highest standards of care and good faith consistent with the prin- (11) 12 cjples of common law trust. Legal and equitable remedies be availablej in Federal courts for breach of standards. Although the trust responsibility is a legally binding duty required of all United States agencies and instrumentalities, and although Con- gress has the ultimate responsibility for insuring that the duty is met, there be in the executive branch one independent prime agent charged with the principal responsibility for faithfully administering the trust. , _^ T. The trust responsibility extends through the tribe to the Indian mem- ber, whether on or off the reservation. His or her rights pursuant to this United States obligation are not atl'ected by services which he/she may be eligible to receive on the same basis as other United States citizens or which the tribe may be eligible to receive on the same basis a^ anv other governmental unit. The United States holds legal title to Indian trust property, but full equitable title rests with the Indian owners. 3. Before any agency takes action which may abrogate or in any way infringe any Indian treaty rights, or nontreaty rights protected by the trust responsibility, it prepare and submit to the appropriate committee in both Houses of Congress an Indian trust rights impact statement, to include, but not be limited to, the following information : Nature of the proposed action. Nature of the Indian rights which may be abrogated or in any way infringed by the proposed action. Whether consent of the affected Indians has been sought and obtained. If such consent has not been obtained, then an explana- tion be given of the extraordinary circumstances where a com- pelling national interest requires such action without Indian consent. If the proposed action involves taking or otherwise infringing Indian trust lands, there must be notification whether or not lieu lands have been offered to the affected Indian or Indians. 4. When considering legislation which may have an adverse impact upon treaty or nontreaty rights of Indians, the Congress adhere to the following principles. The United States not abrogate or in any way infringe any treaty rights, or nontreaty rights that are protected by the trust responsi- bility, without first seeking to obtain the consent of the affected Indian or Indians. Such rights not be abrogated or infringed without such consent except under extraordinary circumstances where a compelling national interest requires otherwise. With or without Indian consent, such rights not be abrogated or infringed in any way except pursuant to a congressional act which identifies the specific affected Indian rights and which states that it is the intent of Congress to abrogate or infringe such rights. 5. To diminish the conflict of interest prevalent when the Depart- ment of Justice and the Department of the Interior provide legal serv- ices to Indians, to provide for more efficient rendering of legal services to Indians, and to otherwise improve the representation which Indians receive for protection and enforcement of their trust rights, Congress enact the following legislation : There be established within a newly created Department of Indian Affairs (see recommendations in chapter VI) an Office of Trust Rights 13 Protection. Its duties shall include, but not be limited to, cataloging and assisting in the management of Indian trust property, advising Indians and Indian tribes in legal matters and representing them in all litigation and administrative proceedings involving Indian trust rights. In appropriate field offices of the Department of Indian Affairs, there be a legal and professional staff under the supervision of the Office of Trust Rights Protection. The Office of Trust Rights Protection be authorized to render all appropriate legal services which now are rendered by the Department of Justice and the Department of the Interior, provided that the Indian client agrees to accept representation and services. The Office of Trust Rights Protection have the primary responsi- bility of the Federal Government for protecting, enforcing, and en- hancing Indian trust rights, but this shall not relieve any Federal agency from the duty to recognize and act consistent with the Federal trust responsibility for Indians. The Office of Trust Rights Protection act in the name of the United States as trustee for Indians in all legal matters and proceedings, ex- cept those which it refers to the Department of Justice for litigation. It have the discretion to so refer those matters for which it does not have the staff, resources or expertise to handle. The Office also have the discretion and authority to engage private legal counsel to repre- sent Indians, tribes or groups in trust matters. In such cases, the United States Government may pay all fees and costs and the wishes of the Indian clients shall be complied with, as much as possible, in the selection of counsel. "Where there is conflict of interest between an individual Indian and a tribe involving trust issues, the Office repre- sent the tribe and have the discretion to engage private counsel to represent the individual at Government expense. The United States waive sovereign immunity for all actions involv- ing Indian trust matters brought by the Office of Trust Rights Pro- tection or private counsel engaged by it to represent Indians. The Office be authorized to obtain whatever information, services, and other assistance deemed necessary from other Federal agencies, and such agencies be obligated to comply with such requests. 6. Federal courts be authorized to award attorne^^s' fees and expenses and all reasonable costs incident to litiaation, including but not limited to, expert witness fees, in cases in which an Indian or Indian tribe or group engages private attorneys and is successful in protecting or enforcing treaty, trust, or other rights protected by Federal statute. Federal courts be given the discretion to order that all such fees and costs be paid by the losing party or by the United States Government. Chapter Five. — Tribal Government The CoTnmission recommends that: 7. The long term objective of Federal-Indian policy be the develop- ment of tribal governments into fully opeiational governments exercis- ing the same powers and shouldering the same responsibilities as other local governments. This objective should be pursued in a flexible manner which will respect and accommodate the unique cultural and social attributes of the individual Indian tribes. H 8. No leoislative action be undertaken by Congress in relation to tribal jurisdiction over non-Indians at this time. 9. Congress appropriate significant additional moneys for the main- tenance and development of tribal judicial sj^stems : Funding be direct to tribes. Funding be specifically provided to enable tribal courts to^ become courts of record. 10. Congress provide for the development of tribal appellate court systems. Appellate court systems will vary from tribe to tribe and region tO' region. The development of tribal court systems will require tribal experi- mentation and time. Congress statutorily recognize such appellate systems as court systems separate from State and Federal systems. When tribal court systems are firmly operative, Federal court review of their decisions be limited exclusively to writs of habeas corpus. 11. Congress provide by appropriate legislation that lands held in trust for an Indian tribe and assigned to an individual Indian be exempt from Federal taxation and that the income from such lands also be exempt, in the same way that restricted and allotted lands are presently exempt. 12. Congress provide by appropriate legislation that the benefits received from those programs designed to aid in the economic develop- ment of Indians shall not be subject to Federal taxation. 13. Congress amend the Internal Eevenue Code to provide that provisions of the Code which apply to non-Indian governments are to be applied in a like manner and to the same extent to Indian tribal governments. This would include the same benefits enjoyed by individ- uals in their relations to tribal governments. 14. Congress amend or repeal, as appropriate, those statutes which authorize State taxation which are in conflict with Federal-Indian policy to foster economic development of reservation Indians and enhance tribal self-government. Specifically, State taxation of mineral production on leased Indian lands be repealed or amended. 15. Congress provide by appropriate legislation that State taxation within reservations be invalidated as applied to non-Indians when the burden of such taxation falls directly or indirectly upon the Indian. 16. Congress enact legislation which provides that where an Indian tribal government enacts a tax in furtherance of Federal -Indian pol- icy, designed to enhance the tribes' self-governing capacity or to pro- tect or foster tribal economic development of Indian people or the ti-ibe, such tax will have the effect of preempting any competing State tax which would be applicable to the same person or activity. 17. The Department of the Interior aid Indian tribes in the develop- ment of comprehensive management plans for fish and wildlife re- sources. Indian people must be involved in the management of their own trust resources. 18. The executive branch undertake action to stimulate the tribes and States to enter into cooperative agreements in the management, allocation, and enforcement of off-reservation fishing activities by both Indians and non-Indians. Such cooperative agreements must lb recognize the riglits of the Indians in the fish resource and their re- sponsibility in the management and allocation of that resource. 19. Congress appropriate funds necessary to aid individual tribes and intertribal organizations in the development and management of fishery programs. 20. Congress enact legislation authorizing the Department of the Interior (Parks and Wildlife Division) with standby authoi-ity to allocate fish resources and enforce such allocations as to Indians or non-Indians or both, whenever the States oi- the tribes fail to regulate those persons under their respective jurisdiction. 21. Section 18 of the Indian Reorganization Act (25 U.S.C. g 478), Avhicli provides that no part of that Act shall apply to any reservation wherein a majority of the adult Indians vote against its application, be ]-epealed. In its place. Congress enact a savings clause to provide that the rights of any tribe which has organized under the terms of section 16 of the Act or formed a corporation under section 17 of the Act will not be adversel}^ affected. To accomplish this result, the Commission recommends the follow- ing specific legislative actions : Repeal section 18 of the IRA which reads as follows : This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Intei'ior. shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after June 18, 1934, to call such an election, which election shall be held by secret ballot upon thirty da3^s notice. Insert in place of this section the following lanijuage : The rights o,f any Indian tribe which has chosen to or- ganize under sections 16 and 17 of the Indian Reorganiza- tion Act shall not be affected by this repeal. 22. Section 16 of the Indian Reorganization Act (25 U.S.C. § 476) which authorizes tribes to organize under the provisions of that Act be amended : (1) to specifically reflect the fact that tribes have an inherent right to form their owii political organizations in the form which they desire; and (2) to provide that notwithstanding any provisions in existing tribal constitutions which vest the Secretary with authority to i-eview and disapprove ordinances enacted by the tribal government shall only extend to those matters directly related to the trust responsi- bility over the use and disposition of trust assets. However, those tribes who wish to retain such authority on an interim basis shall be authorized to do so. To accomplish this result, the Commission recommends amendment of section 16 of the IRA along the following lines: The right to choose their natural form of government is the inherent right of any Indian tribe. Amendments to tribal consti- tutions and by-laws adopted pursuant to the Indian Reorganiza- tion Act shallbe ratified and approved by the Secretary to protect the trust assets and resources of the tribes. In addition to all powers vested in any Indian tribe or tribal council by existing law, said Indian tribe shall also be recognized to have the following rights and powers : To employ legal counsel, 16 to prevent the sale, disposition, lease or encumbrance of tribal_ lands, interest in lands, or other tribal assets without the consent' of the tribe ; and negotiate with the Federal, State and local gov- ernments. The Secretary of the Interior shall advise all Indian tribes and/or their tribal councils of all appropriation estimates of Federal projects for the benefit of the tribe prior to the submis- sion of such estimates to the Office of Management and Budget and the Congress. Notwithstanding the provisions of any existing tribal constitu- tion or similar document wliich vests authority in the Secretary to review and approve or disapprove proposed actions of said In- dian tribes, the Secretary's authority over Indian tribes will only extend or be directly related to the trust responsibility over the use and disposition of trust assets. However, any Indian tribe which may desire a continuation of their presently existing dele- gation of authority to the Secretary is hereby authorized to do so. 23. Section 2 of title 25 U.S.C., be amended to provide that the au- thority of the Secretary of the Interior over tribes shall only extend to actions relating to protection of tribal trust assets. Within these limits, whenever the Secretary finds it necessary to disapprove a pro- posed tribal initiative, he must file a written statement with the tribe notifying them of the reason for his disapproval of their proposed action and afford them an opportunity for a hearing. 24. Section 81 of title 25 U.S.C., be amended to accomplish a result similar to that proposed above, i.e., that whenever the Secretary dis- approves any proposed contract dealing with trust assets, he provide the affected tribe or person with a written statement of his reasons for disapproval and provide them with an opportunity for a hearing. To accomplish these results, the Commission recommends amenda- tory language along the following lines : That 25 U.S.C. § 2 be amended to include the following lan- guage : The authority of the Secretary of Interior over Indian tribes shall only extend to these actions deemed necessary to protect tribal trust assets and resources. In any action which the Secretary finds it necessary to disapprove a proposed tribal government initiative, the Secretary shall take such action within 60 days of having been officially notified of the pro- posed tribal action by the Indian tribal government and any disapproval of the proposed tribal action shall be accompa- nied by an opportunity for a hearing on the part of tlie tribe, and the Secretary's decision shall be based on written findings of fact which shall specify the reasons for his disapproval. That 25 U.S.C. § 81 be amended in the following manner : The third paragraph beginning "second * * *" shall read: It shall bear the approval of the Secretary of the Interior and Commissioner of Indian Affairs endorsed upon it. The Secretary of the Interior and the Commissioner of Indian Affairs shall disapprove any such proposed contract only after finding that the proposed contract shall endanger the trust assets or resources of the tribe or individual Indian. Such findings shall be submitted to the proposed tribe and/or Indian in written form specifying the exact reason for disapproval. 17 25. Additional legislation be enacted to authorize tribes to override Secretarial disapproval of their proposed use of trust assets. Such an override must be coupled Avith a waiver of liability on the part of the United States to the limited extent that the override may result in loss. Legislation be enacted establishing that if the Secretary disapproves a tribal government initiative, contract, or other tribal action involv- ing the use or disposition of a trust asset, the tribe shall be entitled to override sucli Secretarial disapproval using the following procedures : a. The Secretary shall supply the tribe with a detailed state- ment of the reasons for his disapproval of their proposed use or dis]30sition of the trust asset, Sjiecifically setting forth the loss he believes may result from such tribal proposal. b. After due consultation between the representatives of the tribe and the Secretary or his representative, the tribal council may, by formal resolution, elect to override the disapproval of the Secretary. Such resolution must contain a specific waiver of lia- bility on the part of the United States for losses which may result as a direct result of the tribal override. c. In the consultation process, the Secretary shall be held to the highest standards of care and good faith consistent with the prin- ciples of connnon law trust in advising the tribes of the potential consequences of the proposed tribal decision. d. A tribal override of a Secretarial disapproval shall not di- minish the trust character of the asset in question. The trust re- sponsibility of the United States to aid the tribe in the imple- mentation of their decision and to protect the future well-being of the asset shall continue undiminished. e. In any case in which the Secretary has reasonable cause to believe that the decision of the tribal government may not reflect the will of the majority of the members of a tribe he shall (may) require a referendum of the tribal members, tlie expense of which shall be borne by the United States and not the tribe. f . In the event the Secretary determines that a tribal resolution should be put to a referendum, he must notify the tribal council within thirty (30) days of the passage of their resolution, and he must call for such referendum vote not more than forty-five (45) days after tendering such notification. 26. The Department of Justice issue regulations or orders direct- ing U.S. attorneys to accept criminal referrals from qualified tribal and/or BIA police or investiojators. Congress hold oversight hearings to see that this recommendation is accomplished or receive an explanation why it should not be done. 27. Congress hold oversight hearings with representatives of the Department of Justice, BIA, and tribal authorities, particularly police and judges to inquire into the jurisdiction relationship of the tribal and Federal courts and ascertain what legislation, if any, is needed as a consequence of this decision. 28. Congress hold oversitjht hearings with representatives of the Department of Justice nnd Interior and with Indian tribal authorities to ascertain the scope of this problem. 29. Corrective legislation, if any is needed, must be premised on the continued protection of tribal self-government. The scope of the appli- 18 cation of the Assimilative Crimes Act must be strictly limited. It mustt be recognized and accepted that the laws of the tribes will not always? conform to the laws of States in which their reservation lies. This iS: the meaning of self-government. 30. Legislation be passed providing for retrocession adhering to the* following principles : Retrocession be at tribal option with a plan. A flexible period of time for partial or total assumption of juris-- diction, either immediate or long term, be provided. There be a significant preparation period available for those) tribes desiring such, with a firm commitment of financial resources for planning and transition. There be direct financial assistance to tribes or tribally desig- nated organizations. LEAA be amended to provide for funding prior to retrocession i for planning preparation, or concurrent jurisdiction operations.. Provisions be made for Federal, corporate, or charter status for" intertribal organizations (permissive, not mandatory). There be tribal consultation with State and county governments concerning transition activities (no veto role, however). The Secretary of the Interior : (a) Act within 60 days on a plan or it is automatically accepted ; (b) Base nonacceptance only on an inadequate plan; (c) Delineate specific reasons for any nonacceptance; (d) Within sixty (60) days after passage of the Act, the Secretary of the Interior draft detailed standards for deter- mining the adequacy or inadequacy of a tribal plan. Such standards be submitted to Congress who shall have sixty (60) days to approve or disapprove such standards. Any nonacceptance of retrocession by the Secretary of the In- terior be directly appealable to a three-judge district court in the District of Columbia ; and The Depai'tment of the Interior be obligated to pay all reason- able attorney fees as determinexl by the Federal court, except where such appeal is deemed by the court to be frivolous. Once partial or complete retrocession is accomplished, the Federal Government be under a mandatory obligation to defend tribal jurisdiction assertions whenever any reasonable argument can be made in support of them. 31. Title II of the 1968 Indian Civil Rights Act be amended so that it is crystal clear that this Act was not intended as a general waiver of sovereign immunity of the tribes. The holding in Lon- casslon v. Leekify, 334 F. Supp. 370 (D., X.INL, 1971) authorizing a money judgment against the tribes be specifically rejected by Con- gress. While the courts must have authority to enforce substantive aspects of the Act (as limited by the recommendation above), Indian tribes like any other governments, must have sovereign immunity and some protection for their officers if they are to be able to govern fairly. Equitable actions such as mandamus against tribal officials may be permissible, but they should be innnune from money judgment when they work within their scope of duty. In this respect, they should 1)6 in the same position as State and Federal officials: i.e.. protected when acting within the scope of duty but personally liable when ■aetinof beyond or outside their defined scope of duty. 32. The jurisdictional provisions of the 1968 Indian Civil Eights Act be reexamined. Habeas corpus review is the only jurisdictional pro- vision now included in this Act, yet the courts have assumed juris- diction over a broad lange of actions which do not involve detention. As the situation stands, the jurisdictional reach of Federal courts and the remedial orders which they feel free to enter is virtually un- limited. This is in complete contrast to all other Federal civil rights legislation. 38. The part of the 1968 Indian Civil Rights Act providing for a right to trial by jury be amended to specify that the right guaran- teed by this subsection only be applicable to offenses which if charged in a Federal court would be subject to a right to trial by jury. As section 202(10) presently reads the rights to trial by jury would theoretically apply to almost every offense a person might be charged with, no matter how slight the penalty. 34. The provisions of the 1968 Indian Civil Rights Act limiiing the penal authority of a tribe to fines of $.")00 or six (6) months imprison- ment, or both, should be amended to increase these figures to fines of $1,000 or one (1) year imprisonment, or both. 35. Section 1738 of title 28 U.S.C. be amended to specifically in- clude Indian tribes among those governments to whom full faith and credit be given. The purpose of this amendment would be to clarify and reinforce the rulings of the majority of courts to the effect that Indian tribes are on the same footing as States and ter- ritories with respect to the application of full faith and credit principles. 36. Congress amend title II of the 1968 Indian Civil Rights Act to provide a mechanism for limited appeals to United States district courts after exhaustion of all available ti-ibal remedies. The need for such a provision is directly related to: (1) the Commission recom- mendation for according full faith and ci'edit to tribal laws and court judgments; and (2) to the expanding rolo of tribes in civil and crimi- nal matters involviner non-Indians. This legislation should adhere to the following principles : Existing Federal law permits Federal courts to review the judgments of State courts for matters involving questions arising under the I^.S. Constitution or Federal statutes. The limited right of appeal proposed in this part would au- thorize Federal court review of tribal court decisions in both civil and criminal matters in extraordinary circumstances involving a prima facie showing of a denial of due process (fundamental fair- ness) or denial of equal protection, and /or when the amount in controversv exceeds a specified amount ($10,000). Section 203 of title II of the Civil Rights Act (25 U.S.C. g 1303) which extends the privilege of the writ of habeas corpus to test the legality of detentions by order of Indian tribes be amended to provide a limited right of appeal from final orders or judg- ments of the highest court system of the respective tribe in both civil and criminal matters. 20 Appeal to the Federal court not be allowed until the petitioner has exhausted all available tribal remedies. This "exhaustion" re- quirement include all tribal appellate remedies including appeals to regi(mal intertribaJ courts of appeal should the tribes elect to enter into such intertribal compacts. The requirement for exhaus- tion be rigidly enforced by the courts. The review not turn on procedural requirements but rather be premised on fundamental fairness based on the entire record. This amendment folloAv the rule laid down in cases that this Act did not "blanket in" the entire body of Federal case law but provides for interpretation in a manner consistent with the needs and cus- toms of tribal institutions. 37. Congress enact legislation guaranteeing the permanency of tribal governments within the Federal domestic assistance program delivery system. 38. Congress enact legislation to resolve the inconsistencies of Fed- eral domestic assistance legislative and administrative procedures as they define the status of tril)al governments within the Federal do- mestic assistance program delivery system. The implementation of principles which would resolve such inconsistencies establish a clear dcfiuition of tribal government eligibility for each Federal domestic assistance program and guarantee the jurisdictional independence of tribal governments as permanent political entities within the Federal domestic assistance program delivery system. 39. Congress authorize the waiver of administrative regulations of Federal domestic assistance programs which condition eligibility on population formulas. Allocation of funds, however, should employ some population criteria such as that utilized by BIA under P.L. 93- 638 to provide adequate funding to tribes with smaller population bases. 4:0. Congress establish Federal policy recognizing the sovereign right of a tribal government to form its own government. In accord- ance with Federal policy, eligibility criteria of Federal domestic assist- ance programs not force tribal governments to form consortiums or intertribal affiliations in order to'become eligible for Federal domestic assistance. 41. Congress amend the Intergovernmental Cooperation Act of 1968 (40 U.S.C. § 535 and 42 U.S.C. § 1401) to include tribal governments m the scope of intergovernmental activities and access to Federal pro- gram information provided for under the Act. 42. Congress amend the Law Enforcement Assistance Act (42 U.S.C. § 3711, et seq.) to remove State jurisdiction over tribal govern- ments in the service delivery system of Law Enforcement Assistance Administration programs, thereby allowing programs and moneys to flow directly to the tribal government. 43. Congressional recognition of the legal status of tribal o-overn- ments include the recognition that tribal governments must have the financial resources necessary to support the basic operations of tribal government, so that tribes may effectively exercise their inherent sovereign powers. 21 44. Conore^s direct the Bureau of Indian xVffairs to undertake a needs assessment of each tribal government to determine tribal capa- bility to finance the basic operations of tribal government. 45. Congress authorize the evaluation of the administrative regula- tions of self-determinatio2i grants program, and require the revision (if regulations where such regulations narrow the scope of congres- -ional intent articulated in the Indian Self-Determination and Education Assistance Act. 46. Congress assure that in both administrative and judicial pro- ceedings, Indians will be assured competent, independent counsel. Chapter Six. — Federal Admististratigx The ComTnission 7'eeommends that: 47. Congress enact affirmative legislation to reaffirm and guarantee tlie permanence and viability of tribal governments within the Federal system. 48. Congress clarify the elicribility of tribal governments as prime sponsors for Federal domestic assistance programs and other pro- grams delegated to State and local governments. 49. Congress enact legislation establishing tribal governments as equal to State governments in Federal domestic assistance programs. This includes amendment of all enabling legislation, program acts, and administrative regulations which require tribal governments to come under State jurisdiction. 50. Congress amend the Intergovernmental Cooperation Act to include tribal governments, and enact the Federal Program Infor- mation Act (S. 3281) to include Indian tribes. 51. Congress appropriate such funds as are necessary to allow the ])reparation of operations and procedure manuals to be used by tribal governments in their administration of tribal government affairs. These manuals would include operation models presenting alternative systems of financial management, accounting, personnel policies and procedures, management information and organization structure. 52. Congi-ess enact Senate Bill S. 2175 — Public Participation in Government Proceedings Act of 1976. 53. The executiA'e branch establish an Indian Career Service con- sistent with statutory provisions and be charged with the responsibil- itv of developing the employment standards as required by section 12 of the Indian Reorganization Act of 1934.' 54. The executive branch propose a plan to implement the provi- sions of section 12 of the Indian Eeorganization Act of 1934 by establishing standards for the hiring of Indians apart from the re- oiiirements of civil service laws in the Bureau of Indian Affairs and the Indian Health Service. 55. Congress amend section 12 of the Indian Reorganization Act of 1934 to make the Indian preference applicable to all Federal agencies administering programs specifically directed to Indian affairs. ^ A complete lesral analysis with findings related to Indian preference laws is contained in the Task Force Xo. 9 final report, vol. I, pp. 106-120. 22 56. The executive branch coordinate efforts to provide for the direct administration of contract funds by the Indian people. 57. The executive branch direct the implementation of section 7(b)^ of the Indian Self -Determination and Education Assistance Act (25- U.S.C. § 450e(b) supp. 1976) to direct its applicability to all Federal agencies; further to direct the General Services Administration to amend Federal procurement regulations to : Clarify the scope and intent of section 7(b). Emphasize that a contradicting order cannot modify a con- gressional Act. Clarify that title VII, section 703 (i) of the 1964 Civil Rights. Act provides for permissible preferences. Provide standard Indian preference language be included. 58. The executive branch direct that the Office of Federal Contract Compliance within OINIB offer a statement in support of the amended Federal procurement regulations. 59. The Bureau of Indian Affairs compile and maintain a perma- nent list of qualified Indian contractors; such a list to be maintained; standards being maintained ; such lists to be available to all Federal agencies. 60. The executive branch coordinate and consolidate all technical assistance efforts into a single agency. 61. The executive branch establish a national professional and tech- nical Indian skills bank administered by Indians. 62. The executive branch direct and coordinate all agencies to estab- lish a model National Indian Technical Assistance Center — consoli- dating personnel with technical assistance grants and contracts. Such consolidation to run parallel to existing BIA service units to test the feasibility of an independent agency service center. 63. The President submit to Congress a reorganization plan creat- ing a Department of Indian Affairs or independent agency to be com- prised of appropriate functions now mainly administered by the Bureau of Indian Affairs. Indian Health Service, and agencies within the Interior and Justice Departments. Rights protection be consoli- dated as set forth in chapter four of this report.^ 64. The plan for a transfer of appropriate programs and functions to the new agency include a review of those programs identified in this chapter. In the interim, the President establish a tempoiary spe- cial action office within the White House which would be charged with responsibility for preparing a plan for the President. 65. The President designate the Secretary of the Interior and the Secretary of Health, Education, and Welfare to implement and co- ordinate efforts to evaluate and plan the transfer of various agencies in the event of the establishment of a department or of an independent agency. 66. Congress authorize a management study of the Indian Health Service to be conducted utilizing experts from the public and private sector and representatives from the Indian community. * A legal analysis of the mandates of Indian contracting under 7(b) is contained In the final report of Task Force No. 9 In vol. I, pp. 221-230. 3 The authority of the President to reorganize the executive branch (see Chapter IX, Title 5, U.S.C.) does not include the creation of a new cabinet or executive department, the President needs to submit to Congress a reorganization plan. ^3 67. The President submit to Congress an appropriate plan for the removal of all Indian education programs from the Office of Educa- tion, in the Department of Health, Education, and Welfare and the Bureau of Indian Affairs, to a consolidated independent Indian agency. Such Executive action would establish : Stronger lines of communication between tribes and the source of educational funding; An administrative structure that would support the develop- ment of tribal control ; Direct targeting of moneys and services to tribal communities; A reliable data base, such that effectiveness of fund utilization can be monitored; Programs that permit individualization of services to meet the unique needs of each project; and Direct rather than coincidental aid for educational problems. 68. The Secretary of the Interior implement an action plan for the modernization of the Bureau of Indian Affairs in order to change it from a management to a service agency. Such a plan give maximum' consideration to the Commission's "BIA Management Study" pro- posals. Generally, these are : A new organizational structure be established to trasfer au- thority and responsibility to the local level. Particularly, the present area offices be divested of their line authority and be established as service centers. The establishment of a planning and budget system which will stimulate Indian tribal participation and place more emphasis on tribal project priorities in the congressional appropriation proc- ess. Tribes should participate in the budget process directly with the Commissioner or Assistant Secretary of Indian Affairs and Congress to the greatest degree possible. The establishment of a program to improve the communica- tions and management information system throughout the BIA and contract for access to an automatic data processing system which will also be made available to tribal computer terminals. The reorganization of the personnel system to improve BIA effectiveness while continuing to train, hire, and upgrade Indians. 69. The executive branch direct the Secretary of the Interior to compile an appropriate manual of operations which will define and publish minimum and standard threshold trust protection in manaire- ment, procedures, accounting, monitorinir, evaluation, and reporting which should be provided as a standard for all Departments and their field offices as well as for Indian tribes. 70. The Secretary of Interior, under existinc: authority, undertake the amendment of the rules of procedure of the Department of Interior (42 CFR, subtitle (a), 1975) pursuant to sec. 4(d) of the Administra- tive Procedures Act (5 U.S.C. ^ 553(e) and 43 CFR § 14.1) to provide compensation for certain participants in the rulemaking and adjudica- tory proceedings conducted by the Department of Interior, including public informal hearings conducted in rulemaking procedures. 71. The Secretary of the Interior direct that the Commissioner of Indian Affairs be given Assistant Secretary status. This can be accom- plished administratively, but may require other supporting legislation. 24 72. The Secretary of the Interior remove the Associate Solicitor's; Office of Indian Affairs from the Interior Solicitor's Office and create ■ an Office of the General Connsel in the Bureau of Indian Affairs. 73. The Secretary of the Interior establish a separate Office of In- dian Program Development and Budget, as well as a separate Office off Policy Analysis for Indian Affairs under the Assistant Seci-etar}^, Program Development and Budget. 74. The Deputy Under Secretary for Indian Affairs become an inte- gral part of an implementation team and direct Secretarial inhouse administrative action. 75. The Secretary of the Interior direct the Bureau of Indian Af- fairs to establish a duly elected board of regents to be recognized as a unit representing tribes and tribal opinion to contract for and ad- minister postseconclary schools. 76. The Secretary of the Interior direct the Bureau of Indian Af- fairs to establish that a duW elected Board of Regents representing each tribe be recognized as a unit representing tribes and tribal opin- ions to contract for and administer those multitribal elementary and secondary schools. 77. Congress establish permanent standing or special select commit- tees for Indian affairs in each House or place all jurisdiction, over- sight, and legislative authority in one joint select committee. Chapter Sevex. — Economic Development The Commission recommends that : 78. Congress appropriate funds and provide technical assistance to insure the preservation, consolidation, and acquisition of Indian lands upon which to build tribal future. This includes assisting tribes in devising comprehensive land consolidation plans, and assisting land- less tribes in establishing a land base. Congress, therefore, provide legislation which would : (1) Increase the funds in the Revolving Loan Fund (Indian Financing Act) administered by the Bureau of Indian Affairs, and create a setaside specifically for tribal land acquisition. Tliese loans should carry lower interest rates and longer terms than now exist for other enterprises receiving loans under the Fund. Present requirements should remain which stipulate that there be a rea- sonable prospect of repayment and that the applicants must have exhausted other avenues of reasonable financing, but there should be less rigid requirements relating to the profitability of the land. (2) Mandate that the Revolving Loan Fund have standby line of credit for tribes to use when immediate access to funds is neces- sary to purchase key tracts of land which are for sale and are essential to the tribe's acquisition or consolidation plans but would probably otherwise be lost to the tribe during the loan application process. (3) Permit tribes to have a "first right of purchase"' option when individually held trust land or non-Indian land within a reservation is offered for sale. (4) Amend section 5 of the Indian Reorganization Act to pro- vide for an increased appropriation of funds for land acquisition, particularly for those tribes which are presently landless! 25 (5) Amend sections 1465 and 14P5 of title 25 of the U.S. Code to delete the provisions of Indian Financing Act funds which re- stricts the use of purchase of lands outside the exterior boundaries of Indian country unless the purchaser was the owner of trust or restricted interests in the land prior to purchase. (6) Amend the "excess property" provisions of the Federal Property and Administrative Services Act, 40 U.S.C. § 471. et seq., to specifically provide for transfers of excess property, whether located within or without the exterior boundaries of tribal lands, to the Bureau of Indian Affairs for use by Indian tribes. (7) Mandate that the Secretary of the Interior establish and make public specific criteria for accepting Indian lands in trust. Such criteria should include a presumption that lands owned in fee by a tribe or to be acquired in fee shall be accepted in trust unless the Secretary sets forth in writing sufScient reasons for refusal. (8) ^Mandate that the Executive examine and report to the Con- gress on the feasibility of consolidating the Indian land acquisi- tion loan program administered by the Department of Agricul- ture and the BIA loan programs into one Federal-Indian loan program designed exclusively for providing funds for tribal land consolidation plans. Land should also not be recjuirecl as collateral ' for such loans. 70. To provide solutions for the debilitating problems presented by the fractionated ownership of heirship lands, Congress enact legisla- tion which would : (1 ) Amend the U.S. Code to enable tribal governments to adopt comprehensive plans for resolving fractionated heirship land problems. Such plans could include the following procedures : (a) Guaranteeing that tribes have first right of purchase when heirship lands are sold. (b) Authorizing the holders of a majority of the ownership interests in a trust, or restricted allotment, to determine sale of land. (c) Enactment of tribal laws governing descent and dis- tribution of fractionated heirship lands to allow purchase, at the time of probate of estates, undivided interest in allot- ments in heirship status which have reached an unreasonably small fraction; restriction of inheritance of trusts or re- stricted allotments to members of the tribe ; or restriction of inheritance to a life estate with a remainder in the tribe, but only upon payment of fair market value compensation to the prospective heir. (d) Condemnation with fair compensation by the tribe of lands in heirship status which have reached \uireasonable small fractions. (2) Kepeal statutes which are obstacles to exchanges and/or sales between owners of allotment interests. (3) Eeform partitioning laws to facilitate partitioning of al- lotment interests held by heirs, if partitioning is in the best inter- est of their heirs and the tribe. (4) Transfer the probate authority over trust property now held by the Secretary of the Interior of the tribe. 92-185 — 77 3 26 i (5) Amend the special laws regarding the Five Civilized Tribe( and the Osage to merge them with the general laws governing th other tribes, at least with respect to jurisdiction over small estate ($5,000 or less) and with respect to their capacity to write law; governing the descent and distribution of propert^y. 80. Tribes be encouraged to develop compreliensive plans for lon^ term economic development premised on maximum Indian utilizatioi of Indian owned resources. Recommendations for appropriation oi grant moneys to tribes for planning purposes appears in chapters I and 6 of this report. 81. Congress enact legislation which will facilitate tribes in acquir- ing consolidated land areas sufficient to support efficient farm and cat- tle industries. Specifically, Congress: (a) Amend existing Federal laws relating to leasing of indi- vidual trust allotments to provide that tribes should have a "first right of refusal" on leasing of such lands. ( b ) Elsewhere in this chapter it is recommended that Congress- establish a special fund for the purpose of aiding tribes in pro- grams of land acquisition and consolidation. In addition to use of these funds for outright acquisition of ownership, tribes be authorized to draw from this fund in order to acquire leasehold rights in individual allotments. Such autliorization must be de-' signed to accommodate the special credit needs of individual allot- tees which cause them to annually renegotiate what purport to be long term leases. 82. The Bureau of Indian Affairs revise its policies regarding leasing of agricultural lands in the following respects : (a) Rental terms correspond to general lease terms of com- parable grade lands held by non-Indians in the surrounding area. Where practicable rentals should be premised on percentage of crop values rather than fixed rates per acre. (5) Leases contain strong conservation requirements with pen- alty provisions adequate to assure compliance by lessees. (c) Leased properties be inspected as frequently as necessary to insure compliance with lease terms. (d) Tribes be encouraged to contract with the BIA to perform inspection and enforcement duties. 83. The BIA and tlie tribes develop long-tenn range management plans to realize the potential benefits of a renewed, high producing grazing range. These plans provide for: (1) range and soil inventories to determine current range capacity : (2) timetables for adjusting herd size to capacity; (3) grazing permit systems; (4) development and prudent use of range improvements to raise the carrying capacity; and (5) education programs to promote good range management practices. In addition, these plans evaluate the short term economic impact which diminishment of herds will cause to individual Indians during the period necessary to regenerate such rangelands. A program similar j to the past "Soil Bank" program should be instituted to provide in- ; centive to individuals to reduce their livestock holdings. 84. The Bureau o,f Indian Affairs implement programs necessary j to provide teclinical assistance and training to tribal people to aid them i] 27 in adopting modern farming and range management. Specifically, the a. Review its funding requests for support of State extension services and seek additional funds for this purpose as appear necessary. b. Develop vocational education programs to be offered at the reservation level to train adults and students at the secondary educational leA'el in techniques in agriculture, range management, and other subjects relevant to natural resource development. 85. Congress hold oversight hearings to ascertain the adequacy of the current funding level of the revolving loan fund for purposes of agricultural and livestock development. 86. In order to clarify the legal authority for Indian tribes to regu- late, manage, and sell their own tribal resources, Cono-ress amend : 25 U.S.C. § 406— Sale of Timber on Lands Held in Tnist ; and 25 U.S.C. § 407 — Sale of Timber on Unallotted Lands. 25 U.S.C. § 406 Sale of Timber on Lands Held Under Trust. Amend § 406(a) by inserting a period after Interior in line 3 and striking the remainder of the sentence and the following sentence. Amend § 406 by adding a new paragraph at the end of the section as follows : (g) Bonds for performance and reclamation pursuant to contracts under this section may be required by the Secretary or the owner of the timber in accordance with provisions under § 407. 25 U.S.C. § 407 Sale of Timber on Unallotted Lands. Amend § 407 by designating the present section as para- graph (a). In line one after "sold" insert "b^^ authority of the tribal council with approval of the Secretary of Interior". In line four, insert a period after Interior and delete the re- mainder of the paragraph. At the end of the paragraph insert a new sentence : "Regulation of timber sales under this sec- tion and § 406 may be superseded by regulation pursuant to tribal constitution, charter, or ordinance, provided that such regulation is not inconsistent with the provisions of this section." Amend § 407 by adding a new paragraph (c) to read as follows : (c) Nothing in this section shall prevent the adoption by the tribal council of regulations for the management of natu- ral resources within the reservation, and after such regula- tions have been approved by the Secretary of the Interior they shall be controlling and regulations by the Secretary of the Interior under this section which may be inconsistent therewith shall no longer be applicable. 87. To resolve the difficult problems in management in the continu- ing waste of Indian timber resources occurring because of the frac- tionated heirship^ pattern of ownership of forested allotments, Con- gress amend existing Federal law relating to : (1) Sale of timber on trust allotments to provide a first option to the tribes. 28 (2) Authority to the tribe to acquire existing powers of attor- neys now held by the BIA upon a showin (released .T'ine 197;!), 19 pp. BIA. Office of Indian Education Programs, Statistics Concerning Indian Educntion, Fiscal Year 197.5. 49 pn. BI\. Office of Trust Responsibilities, Annual Report of Indian Land as of June 30, 1975, 66 pp. J 89 Indian. Though Census Bureau statistics exist, and are the basis for facts currently known and accepted about Indians, they are often based on other Federal records. These other Federal records usually do not extend to all persons of Indian ancestry, but only to those individuals served by the Bureau of Indian Affairs. Who Is an Indian? The Federal Government, State gov^ernments and the Census Bu- reau all have different criteria for defining "Indians" for statistical purposes, and even Federal criteria are not consistent among Federal agencies. For example, a State desiring financial aid to assist Indian education receives that aid only for the number of people with one- quarter or more Indian blood. For preference in hiring, enrollment records from a federally recognized tribe are required. Under regula- tions on law and order, anyone "of Indian descent" is counted an Indian. If Federal criteria are inconsistent, State guidelines for deciding who is or is not an Indian are even more chaotic. In the course of preparing this report, the Commission contacted several States with large Indian populations to determine their criteria. Two States ac- cept the individual's own determination. Four accept individuals as Indian if they were "recognized in the community" as Native Ameri- cans. Five use residence on a reservation as a criteria. One requires one-quarter Indian blood and still another uses the Census Bureau definition that Indians are those who say they are. If simply defining who is an Indian presents problems, compiling other vital statistics about Indians and Indian affairs presents almost insurmountable obstacles. Indians Are Everywhere Population figures have played an historic role in clarifying the effects both planned Indian programs and accidental circumstances have had on Indian people. Through many periods of Federal policy, figures demonstrating Indian death rates have often stirred public attention to Indian policy and popular concern for Indian needs. In the twentieth century, the increase in Indian population has been viewed as an indication of improving conditions on Indian reserva- tions: in the long historical view, however, this recent trend has been late in developing. Indian population numbers show an impressive gain since the end of the last century when 256,000 Indians were re- ported for the area now comprising the United States. For this same area it had been estimated that the Pre-Columbian population was approximately 890,000, and so it appears that today's Indian cou.nt has recovered most or all of the losses reported over the previous 450 years. That, however, may turn out to have been a completely erroneous con- clusion. The work of recent scholars in this field suggests that the Pre- Columbian population for the area north of Mexico (what is now tl^.e United States. Canada and Greenland) may have numbered between 10 and 12 million. If this revised calculation can be substantiated (it is now undergoing vigorous examination), it Avill clearly demonstrate 92-185—77 7 90 the devastating effects of invading diseases and methods of warfare. Today, available statistics on Indians in the United States contmue to paint a picture of widespread deprivation unequalled by any other United States subgroup. Whether men or women, living m the city or country, Indians in the United States suffer from inadequate educa- tion and relatively poor health, low incomes, poor housmg, and sani- tary conditions generally regarded as unacceptable. These conditions, of course, can be measured only among those de- fined as Indians. The figures used here are taken primarily from the 1970 Census Bureau records and are based on the number of people who identified themselves as Indians. According to these files, there are 792,730 Indians, or Native Ameri- cans, living in every State of the Union and the District of Columbia, an increase of 122 percent since 1950.* Many people familiar with Indian issues consider the Census figure to be low and a figure of one million is generally considered more accurate. Vermont has the lowest Indian population (229) of all the States, even though more than 25 percent of all Indians live in the Northeast, and more than half live outside Western States. North Carolina, for example, is the State with the fifth-largest Indian population (44,406) in the country. Within the United States, a minority of 28 percent of all Indians live on reservations that range in size from the 15.4-million-acre Navajo reservation with approximately 125,000 tribal members located in the Southwest to the one-quarter-acre Golden Hill Eeserva- tion in Connecticut with six citizens. A total of 289 tribes and bands live on 268 "federally recognized" reservations or otherwise defined "trust areas" in 26 States. Nine "State-recognized" reservations in New York and one in Texas receive some Federal assistance.^ Two additional tribes are recognized in a limited fashion.^ In addition, there are 24 State Indian reservations,^ and 219 Native Alaskan vil- lages or reservations, and even some urban reservations such as Agua Caliente in Palm Springs, Calif. However, State and Federal reservation statistics do not tell the whole story. An estimated 32.000 Indians exist without either Federal or State recognition. Some belong to tribes that were never recog- nized by the Federal Government, others to tribes whose Federal status was "terminated" by legislation during the 1950's and early 1960's. These tribes, or communities, are scattered across the United States and include the Mohegan Community in Connecticut, the Mon- tauk Community on Long Island, the Narragansett Community in Ehode Island, the Houma Community of Louisiana, the Yacqui Indians of Arizona and others.^ ■iln 1960 the figure was 523,591; in 1900, 237,196. The 1970 census does not Include 34,538 Eskimos and Aleuts among the total Indian count. (See U.S. Dept. of Health, Edu- cation, and Welfare, A Study of Selected Socio-Economic Characteristics of Ethnic Minori- ties Based on the 1970 Census; vol. Ill, American Indians, July 1974, pp. S, 18.) ^ Ch. 2, Legal Concepts and ch. 6, Social Services, address this issue'. These are the Alle- ghany, Cattaraugus, Oil Springs, Onondaga, Poospatuck, Shinnecock, St. Regis Mohawk Tonawanda, and Tuscarora in New York and the Alabama-Coushatta in Texas ' These are the Lumbees in North Carolina and the Tiguas in Texas. The Lumbees have neither a communal land base nor a traditional tribal government, while the Tiguas live on a 73-acre reservation held in trust by the State and receive services from the State •^ See U.S. Dept. of Commerce, Economic Development Administration. Federal and State Indian Reservations and Trust Areas, 1974. U.S. Government Printing Office stock No 0311-00076, 604 pp. ^ v^mce, biocK i>o. 8 See Theodore W. Taylor, The States and Their Indian Citizens, Bureau of Indian Affairs, 1972, pp. 226-32. 91 However, the largest percentage of Indians are members of neither reservations, nor communities but are urban residents."' More than 46 percent of all Indians (335,738) are city dwellers, double the number of 1960.^ They may be members of a State or federally recognized tribe, a community without its own I'eservation or land, or memlters of a "terminated'' tribe. ^° The larsrest number of urban Indians (23.908) live in the Los Angeles-Lone; Beach area, followed bv Tulsa, Okla. (15.983). Oklahoma City (12,981), San Francisco-Oakhind (12.041), and Phoenix (10.127). However, urban Indians are found in many large cities ; Census Bureau data list 30 "SMSA's ^^ with large Indian populations. IXDIAX Po\'ERTY No matter where Indians live, the pattern is essentially' the same.- Incomes are lower than that of the population at large, with more Indians below the poverty level. INDIAN INCOME Income (percent) Median income Poverty levels" (percent)' All Indians, $4,000 a year 34 U.S. population, $4,000 a year 15 All Indians, $10,000 a year 22 U.S. population, $10,000 a year 47 $5, 832 9,590 33; ly 1 These ppctions are based upon 1970 census data as presented in a Dept. of Health, Education, and Welfare report entitled "A Study of Selected Socio-Ecor.o'uic Characteristics of Ethnic Minorities Based on tlie 1970 Census" ; vol. Ill; American Indians, July 1974, 100 pp. Cited above (Cf. footnote No. 1). Statistics on health care are not quite as dismal.^^ Since the Indian Health Service began in 1955, mortality rates have declined, and life expectancy has increased. For example, between 1955 and 1971 the Indian infant death rate decreased 56 percent, and the maternal death rate by 54 percent. Deaths from tuberculosis, gastritis, and influenza/ pnemnonia declined 86, 88, and 57 percent respectively. Although life expectancy increased from 60 years in 1950 to 65.1 years in 1970, it re- mains the lowest of any U.S. population group. Still, health care is a serious problem for the Indian population. The Indian death rate from accidents was three times the national average in 1971. So was the Indian mortality rate for cirrhosis of the liver, tuberculosis, and gastritis. Although death rates have decreased, certain diseases still disproportionately afflict Indian tribes. Between 1965 and 1971, the incidence of otitis media (a disease of the middle ear affecting balance) increased 74 percent. Strep throat and scarlet fever increased 218 percent and influenza by 242 percent. Schooling Low and Unemployment High Both Indian men and women suffer from inadequate and inappro- priate education. They also suffer from unemployment and low income. * See ch. 9. Off-Reservation Indians for more information. 9 See DHEW study, op. cit., p. 13. ^^ Taylor, op. cit. ^ Standard Metropolitan Statistical Areas. " Ibid., p. 58. The following charts show the comparative educational levels of Indian men and women with their non-Indian counterparts. EDUCATION -MEN (PERCENT) Indian men U.S. popula- tion, men Completing grade school 63. 34.0 3.5 10.5 73.0 Completing high school 54.0 Completing college 12.6 Median (years) 12.1 EDUCATION -WOMEN (PERCENT) Indian women U.S. popula- tion, women Completing grade school 66.0 -|- 75.0 'Completing high school 35.0 55.0 'Completing college 2.5 7.8 iMedian (years) 10.5 12. 1 Differences in educational levels often make themselves felt as Indians seek work. More Indians are in the ranks of the unemployed or the working poor, than members of the U.S. population at large. Yery few make the $10,000 that is considered a living wage. The situ- ation is highlighted by one statistic: 74 percent U.S. men are em- ployed, while only 56 percent of Indian men are working. The unem- ployment rate of 11.6 percent for Indian men and 10.2 percent fori Indian women is not a true reflection of unemployment since unem- ployment is determined by registering those seeking work. Obviously, on reservations with no jobs, many do not register and are not included] in these unemployment statistics. EMPLOYMENT— MEN [In percenll Indian men U.S. popula- tion, men 'Unemployed. 11.6 Employed 56.0 Earning S4,000 annually or less 55.0 Making $10,000 annually or more 8. 5 Median income $3, 509 3.9 74.0 31.0 25.2 $6, 614 Though Indian women are not as often unemployed as Indian men, they are often found in the ranks of the underemployed, or those^ earning $4,000 annually or less. Additionally, they are less likely to earn the $10,000 a year that is at least a beginning toward a living wage. 93 IVIPLOYMENT— WOMEN [In percent] Indian U.S. popula- women tion, women I Unemployed .- 10.2 5.1 Employed 31.0 39.0 Making |4,000 annually or less 80.0 68.0 Making $10,000 annually or more 1.5 3.2: Median income - $1,697 $2,404^ The conditions of poverty among Indians who live in rural areas are- worse than the conditions of those residing in cities. This general poverty extends to housing, sanitation, and transportation as well. The comparison with other Americans is sharp : [In percent) Sanitation Housing (crowded) Without water Without toilets Transporta- tioiv Rural Indians 14. 67.4 31. S 48.0 . '""13^6". Rural U.S. population 10.1 8.7 11.7- Rural Indian women face the most difficult lives of all being well below both urban women and rural and urban men, in education,, income levels, and emploj'ment. In such families, 68 percent have incomes of $4,000 a year or less and only 4.3 percent have incomes of $10,000 or more annually. These income levels force these families to- live in tragic misery. Education Employment (median, (percent Income- years) employed) (median)- Rural Indian women 9.7 26 $1,35^ Rural Indian men 9.4 56 2, 74» Urban Indian women 11.4 38 2,023 Urban Indian men 11.5 65 4,65g Statistical Profile Overall, the picture that emerges from these statistics is a grim one. The fact that it probably is not completely accurate and certainly not up-to-date can only cause speculation as to how bad the problem is today. Xor is it possible to establish clearly if programs aimed at improving Indian lives are having any significant success. 94 Efficient planning and responsive execution of development pro- grams must be based on accurate information on current economic and social conditions and on changes in these conditions over time. Despite increases in Federal expenditures for Indian programs from $7 mil- lion to approximately $1.5 billion over the past hundred years or so, statistics regarding these programs are more inadequate than ever. The increasing neglect of Indian statistics has long been recognized by those interested in Indian affairs. As long ago as 1904, Charles J. Kappler, a staff member of the Senate Indian Affairs Committee, decried the general lack of information while compiling a four- volume publication, Indian Laws and Treaties. In the introduction to his first volume he states: An accurate compilation of the treaties, laws, executive orders, and other matters relating to Indian affairs, from the organization of the Government to the present time, has been urgently needed for many years, and its desirability has been repeatedly emphasized by the Commissioner of Indian Affairs in his annual reports to the Congress.^^ 'V^'lien Kappler's four-volume compilation ^* was reprinted 46 years later, the House Interior Committee pointed out that it had: "* * * long recognized the need for gathering into one compilation all avail- able important statistical information relative to the Indians under the com- mittee jurisdiction and the law affecting such Indians. This concern has been echoed by virtually every Congress since , rthat time. Yet while concern and allocated funds and staff increase, the availability of reliable information does not. Statistics on unem- ployment, educational attainment, land in trust, income, health, and -so forth are less available today than they were many years ago. Recommendation The Commission recoTn/mends that: Congress requires the Assistant Secretary of Indian Affairs to pro- vide a comprehensive annual report on Indian matters which will contain reliable, current, and accurate data. The Secretary of Interior be directed to gather and maintain mate- rial for this report from all Government agencies serving Indians. The report be organized to present facts relating to Indian treaties, agreements, and Executive orders; current land, population, tribal government, economic, health, welfare, education, and housing statis- tics in Indian communities; material relating to the use of natural resources on Indian land; and information on administration of all Indian programs. A sample format for this proposed report can be fomid in Appendix C. 13 Indian Affairs : Law and Treaties. 88th Conj?., 2d sess. Senate Doc. No. 319. " House, 81st Coug., 2d sess. Committee on Public Lands, Subcommittee on Indian Affairs, Compilation of Material Relatinjr to tlie Indians of the United States and the Territory of Alaska, Including Certain Laws and Treaties Affecting Such Indians, June 13, 1950, serial No. 30, 1110 pp. CHAPTER THREE BASIC DOCTRINES OF AMERICAN INDIAN LAW C»ne of the most significant elements of Indian treaty law is that Indian treaties were not a grant of rights from the United States to the tribes, but rather a grant from the tribes to the United States, (95) CONTENTS Page Introduction 99 Tribal sovereignty: Indian tribes as governments 99 The trust relationship : The United States special and unique relationship with Indians 103 Plenary power: Congressional authority over Indian aflFairs 106 Definition of Indian: Tribal membership 107 Indian treaties: Cornerstones of Indian law 109 Jurisdiction: Varying rights and responsibilities in Indian country 112 The importance of jurisdiction 112 Indian country 113 Original exclusive tribal jurisdiction 114 Federal statutes altering jurisdiction in Indian country 115 The recent cases 117 Synthesis: Indian tribes and people in America's legal and political system 119 (97) CHAPTER THREE BASIC DOCTRINES OF AMERICAN INDIAN LAW [This chapter was prepared for the Commission by Professor Charles F. Wilkinson, School of Law, University of Oregon] Introdtjctiox This Commission's charter from Congress, reflecting 200 years of legislative and executive action, aptly describes the relationship be- tween the United States and American Indian tribes as "unique" and "special."' ^ Such words have repeatedly been emphasized by the United States Supreme Court in opinions stretching across almost li/^ centuries.- Thus the unequivocal message from all three branches of our Federal Government is that Indian law and policy is a field unto itself. It is almost always a mistake to seek answers to Indian legal issues by making analogies to seemingly similar fields. General notions of civil rights law and public land law-, for example, simply fail to re- solve many questions relating to American Indian tribes and indi- viduals. This extraordinaiT body of law and policy holds its own answers, which are often wholly unexpected to those unfamiliar with it. This chapter examines the root doctrines of the Federal-tribal rela- tionship. Ultimately, these doctrines allocate legal and political power among three sets of governments — the tribes, the United States, and the States — on more than 50 million acres of Indian land. For better or worse, law plays an enormous role in the lives of American In- dians — perhaps a greater role than is the case with any other group of American citizens. Because of that, the doctrines peculiar to Indian law will continue to play the same crucial role that they have played in the past ; they will determine whether, and to what extent, American Indians will be able to control their own destinies. Tribal Sovereigxtt: Indian Tpobes as Governments Sovereignty means the authority to govern, to exercise those powers necessary to maintain an orderly society. The powers of sovereign governments are familiar : the power to enact laws ; the power to estab- lish court systems; the power to require people to abide by established laws; the power to tax; the power to grant marriages and divorces; the power to provide for the adoption of children; the power to zone property; the power to regulate hunting and fishing; and so on. "Sov- 1 Public Law 93-580. Jan. 2, 1975, 88 Stat. 1910, as amended by Public Law 94-80 5§ 1-4. Aug. 9. 1975, 89 Stat. 41.5. . »« . 2 See. e.g.. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ; Morton v. Mancari, 417 U.S. 535 (1974). (99) 100 ereignty," therefore, is a collection of all or some of those powers ^vhich governments (such as the United States, States, counties, find cities) have and exercise on a regular basis.^ When we talk about tribal sovereignty, then, we are saying a very simple but deeply fundamental thing: Indian tribes are governments. The status of Indian tribes as sovereigns, or governments, has been uniformly recognized by Congress and the courts from prerevolution- ary days through the present. This sovereign status is reflected in the early treaties, the early cases, the recent cases, and the recent legisla- tion. Since tribal sovereignty is a doctrine which has evolved and has "been clarified over more than 200 years, it is helpful to trace the de- Telopment of the doctrine. The single most important court decision, which is still relied upon "by courts, is Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). This ■case resulted from the struggle between the State of Georgia and the •Cherokee Nation, whose lands became surrounded by the State of 'Georgia. In the late 1820's, Georgia passed a series of laws which effec- tively abolished the Cherokee government. One of the laws included a requirement that any non-Indian residing on Cherokee land rnust first obtain a permit from the Governor of Georgia. Two non-Indian mis- ■sionaries resided on Cherokee land at the invitation of the tribe but without such a permit from the Governor. The Georgia courts con- victed the missionaries of violating the State law, but the United States Supreme Court overturned that conviction. Chief Justice John Marshall's opinion in Worcester v. Georgia struck down the Georgia State laws which purported to operate on Cherokee lands. Interpreting the treaties, the Constitution, and the Indian Trade and Intercourse Act, Chief Justice Marshall found that Indian tribes were "distinct, independent, political communities hav- ing territorial boundaries, within which their authority [of self-gov- ernment] is exclusive * * *." Thus, the State laws could have no effect on Cherokee lands because the Cherokee Tribe was a separate sov- ereign government. While the opinion in Worcester v. Georgia holds that Indian tribes are not subject to State law, later cases make it clear that Indian tribal sovereignty, or self-government, is subject to the superior legisla- tive authority of Congress.* To put it another way, Georgia could not regulate affairs on the Cherokee reservation, but the United States •could. The doctrine of tribal sovereignty, as first set forth in Worcester V. Gc'orgia, has been explained in its most classic form by Felix Cohen, then Assistant Solicitor, Department of the Interior, a writer who is still considered by the courts to be the leading authority on Federal Indian law: The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: (1) An Indian tribe possesses * * * ail the powers of any sovereign state. (2) Con(]iiest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, * * * but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self- government. (3) These powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers = See generally F. Cohen, Handbook of Federal Indian Law 122-50 (U. N. Mex. ed. 1971) (hereinafter cited as "Cohen"). ^ Congress' plenary power over Indian affairs is discussed later in this chapter. 101 of internal sovereignty are vested in the Indian tribes and in their duly con- stituted organs of government." The doctrine of tribal sovereignty, or self-government, remains the starting point for any current discussions concerning the powers of Indian tribes. An Indian tribe inherently possesses all powers held by a government. The tribe continues to hold these sovereign powers until they are expressly relinquished by the tribe, as in a treaty, or until they are expressly taken away by Congress. Since Worcester v. Georgia in 1832, the Supreme Court has treated tribal sovereignty as an evolving doctrine. This evolution is not un- usual ; many provisions of our Constitution itself, including the Com- merce Clause and the Bill of Eights, have also undergone great change during the same period. In the late 19th and early 20th centuries, the Supreme Court emphasized the plenary authority of Congress in re- lation to tribal sovereignty as Congress began to exercise its broad power to deal with Indian affairs.^ In the latter part of the 19th cen- tury, the Court implicitly limited tribal sovereignty by finding that a crime committed by a non-Indian against a non-Indian on the res- erAation was wholly the concern of the States, not of the Federal Government.' With passage of the Curtis Act of 1898 (30 Stat. 495) and the abolishment of the Indian Territory, tribal government lapsed into a. period of dormancy. The policy trend toward destruction of tribal government was reversed in 1934 with passage of the Indian Reorgani- zation Act (25 U.S.C. sec. 461-479). In 1959, in WilUams v. Lee, 35& U.S. 217 (1959), the Supreme Court gave recognition to the continued strength of the doctrine of tribal sovereignty. In the early 1960's, the Supreme Court itself seemed to be caught up in tlie termination era. ]NIost particularly. Organized Village of Kake v. Egan, 369 U.S. 60 (1962), set forth the previously unprece- dented proposition that State laws would apply to Indians on the reservations, in spite of notions of tribal sovereignty, unless the State laws infringed upon tribal self-government or were prohibited by Federal law. This finding, which was not raised by the facts of the case and which has since been limited by the Supreme Court,^ was a clear departure from earlier cases finding that reservation Indians were beyond the reach of State authority. But the Supreme Court decisions of the 1970's have reemphasized the importance of tribal sovereignty. MeClanahan v. Arizona Tax Commission, 411 U.S. 164 (1973), found that "the Indian sovereignty doctrine is relevant, then, not because it provides a definitive resolu- tion of the issues in this suit, but because it provides a backdrop against which the applicable treaties and Federal statutes must be read."^ Thus, Federal treaties and statutes must be "read with this tradition '' Cohen, supra note 3, at 123. « Vnited States v. Kagama. 118 U.S. 375 (1886) ; Lone Wolf v. Hitchcock, 187 U.S. 553 (1908). ■^ HcBrntneii v. Vnited States, 104 U.S. 621 (1882) ; Draper v. United States, 1G4 U.S. 240 (1896). in this same time period, however, three decisions also affirmed the general taxing power of a tribe over persons and property within the geographiral l)nniidar1ps of the tribe. Morris v. Hitchcock, 24 App. D.C. r>6?> (1904). aflf'd. 194 U.S. 384 (1904) : Maareij V. Wright, 10.^. F. 1003 (Sth Cir. 1900) aff's per cur. 3 Ind. T. 243. 54 S.W. 807 (1900). Buster v. Wrif/ht, 135 F. 947 (Sth Cir. 1905). aff'g 82 S.W. 855 (1904), app. dlsm. 203 U.S. 599 (1906). >* MeClanahan v. Arizona Tax Commission, 411 U.S. 164. 167-68, 172 n. 8, 176 n. 5. 180 n. 20 (1973) ; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 150 n. 15, 153 (1973). 102 of sovereignty in mind." The Supreme Court then ruled that a reserva- tion Indian is not subject to State income tax for income earned on the reservation. The Court restated most of the basic law of tribal sov- ereignty first established by Chief Justice Marshall in Worcester v. Georgia : "[T]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history" * * * This policy was first articulated by this Court 141 years aj?o when Mr. Chief Justice Marshall hold that Indian nations were "distinct political communities having territorial boundaries, within which their authority is exclusive, and having a right to all the land within those boundaries, which is not only acknowledged, l)ut guaranteed by the United States." An even more recent case is Uirited States v. Masune, 419 U.S. 544 (1975), which dealt with the right of tribal governments to exercise regulatory authority over non-Indians. The Wind River Tribes, acting pursuant to Federal statutes and with the approval of the Secretary of the Interior, passed a law requiring that sellers of alcoholic bever- ages must obtain liquor licenses from the tribe. This pattern of regu- lation is, of course, similar to regulation by State governments. A non- Indian was denied a liquor permit from the tribe. The operators of the liquor store continued to operate without a license and a Federal prose- cution followed. The Tenth Circuit Court of Appeals ruled that the tribe had no power to regulate a liquor license because it was not a government. According to the appellate court, the tril)e was nothing more than a "private, voluntary organization." The Supreme Court Rejected that reasoning and upheld the requirement of a tribal license. Justice Rehnquist, writing for a unanimous Court, relied upon notions of tribal sovereignty and found that Indian tribes are "a good deal more than 'private voluntary organizations' " : Thus it is an important aspect of this case that Indian tribes are unique aggre- gations possessing attributes of sovereignty over both their members and their- territories, Worcester v. Georgia, 6 Pet. 515, 557 (1832) : they are "a separate ■ people" possessing "the power of regulating their internal and social rela- tions * * *." ^ Thus, today's Supreme Court has made it clear that tribal sover- eignty remains a vigorous and far-reaching doctrine. The absolute view of complete sovereignty, first set forth in Worcester v. Georgia^ . has been slightly eroded. Nonetheless, Worcester is repeatedly cited by the courts and the results consistently affirm sovereign tribal rio-hts. The present law fully and unequivocally supports the conclusion1:hat Indian tribes initially possess all elements of internal sovereignty And that their sovereign attributes can be diminished only by Congress not by the States. These sovereign attributes include such basic gov- ernmental powers as the following : 1. The power to establish legislatures, usually called tribal councils.^ 2. The power to establish tribal courts.^" 3. The power to tax.^^ cin Ssef."^" ■*^""«'"* "■ ^^^' ^"P'-^^- 1^°^ Grow V. Oglala Sioux Tribe, 231 F. 2d 89 (Sth ^1 See, e.g.. Barta v. Oglala Sioux Tribe. ''59 P '^r\ -.=iq cQfh «!,. lo-o^ r, ^ -rr^ . , 135 F. 947 (Sth cir. 1905), appeal dismissed 203 uTs 599 (tgOG) ' ^^^ ' '^"*^"" ''• ^"^"*' 103 4. The power to grant marriages and divorces.^^ 0. The power to provide for adoptions and guardianships." 6. The power to regulate hunting and fishing.^* 7. The power to control economic development through zoning regulations and other land use planning devices.^^ 8. The power to regulate non-Indian individuals in Indian country.^^ Other sovereign powers could be added to this list. The point, how- ever, is not to enumerate all sovereign powers of Indian tribes, but simply to give examples for the purpose of showing that Indian tribes are in fact governments. Congress has the unquestioned power to limit those sovereign rights, but all inherent governmental powers remain intact until Congress expressly acts. The importance of strong tribal self-government has been manifested in all recent congressional legislation.^'^ The Trust Eelationship : The United States' Special axd Unique Relationship With Indians The trust relationship between the United States and American Indians was first set forth in Cherokee Nation v. Georgia^ 30 U.S. (5 Pet.) 1 (1831). This opinion, which was written by Chief Justice John ^Nlarshall, stands with ^yorcester v. Georgia as one of the most significant opinions in Indian law. The two cases retain their vitality today and are repeatedly cited by modern courts. Cherokee Nation v. Georgia was handed down one year before the Worcester decision and also involved the Cherokee Nation's resistance to Georgia's attempts to enforce State law on Cherokee lands. The Cherokee Nation filed an action in the United States Supreme Court, seeking to enjoin enforcement of the State statutes which etfectively outlawed the Cherokee government and laws. The Supreme Court refused to accept the case because the tribe was not a ''foreign state*' within the meaning of Article III of the Constitution. As a result, the Court did not have jurisdiction over the case. Chief Justice Marshall, however, proceeded to discuss the legal status of Indian tribes and their relationship to the Federal Govern- ment. In doing so, he drew upon international law, colonial and United States treaties, Federal statutes, and the Constitution. The Chief Justice characterized the relationship between the two govern- ments as "perhaps unlike that of any other two people in existence" and "marked by peculiar distinctions which exist nowhere else." Marshall agreed with the Cherokee Nation that it was a "state" in that it was "a distinct political society * * * capable of managing its own '^ See, e.g., United States v. Quiver, 241 U.S. 602 (1916) ; Cohen, supra note -3. at 137-39. 13 See, e.g., Fisher v. District Court, 424 U.S. 3S2 (1976) ; Wakefield v. Little Light, 276 Md. 333. 347 A. 2(1 22S (1975). ^* ColviUe Tribe v. State of Washington, 412 F. Supp. 651 (E.D. Wash. 1976) ; Quechan Tribe v. Rowe, 531 F. 2d 408 Oth cir. 1976). ^^ Santa Rosa Band of Indians v. Kings Court, 532 F. 2d 655 (9th cir. 1975). cert, granted ; Snohomish Count'i v. Seattle Di-'fposal Co.. 70 Wash. 2d 668. 423 P. 2d 22 (1967). 18 See. e.g., Oliphant v. Schlie, 544 F. 2d 1007 (9th cir. 1976), cert, granted: Quechan Tribe of Indians v. Rowe, 531 F. 2d 408 (9th cir. 1976) ; Barta v. Oglala Sioux Tribe, 259 F. 2d 533 (Sth cir. 1958) ; and U.S. v. Blackfeet Tribal Court, 244 F. Supp. 474 (D. Mont 1963 1 . 1" Report of Task Force IX (vol. 1), p. 73. See also, Bryan v. Itasca County, — U.S. — , 96 S. Ct. 2102, 2101 n. 14 (1976). 104 affairs and governing itself." But he found that the Cherokee Nation was not "foreign" because it was within the jurisdictional limits of the United States and because the treaties with the Cherokees ac- knowledged dependency upon the United States. Marshall concluded that Indian tribes, rather than being foreign states, "may, more correctly, perhaps, be denominated domestic de- pendent nations * * *." He then invoked the trust relationship by concluding that the relationship of the tribes to the United States "•resembles that of a ward to his guardian." This duty has always been recognized by the courts and has been variously characterized as a "fiduciary" relationship, a "trust" respon- sibility, and a "guardian-ward" relationship.^^ Marshall's analysis that our law has no direct parallel to this trust relationship has been often emphasized by the United States Supreme Court, which has described the relationship between Congress and Indians as "solemn," "unique" or "special," and "moral." ^^ The Court, in utiliz- ing such unusually forceful language, has relied in large part upon 23olitical principles which have emerged throughout the history of Indian Affairs. Although Cherokee Nation v. Georgia involved a treaty, later decisions have found that the trust relationship is created not only by treaty but also by other methods of Federal recognition such as statutes, agreements, and Executive orders.'^*' The trust relationship, like the Bill of Rights in the Constitution, cannot be defined with precision in all respects. It is an evolving, dynamic doctirine which has been expanded over the years as changing times have brought changing issues.^^ Nevertheless, the trust relation- ship is a mature doctrine about which several generalizations can fairly be made. Indian trust title to land is one important manifestation of the trust relationship. Title to land in Indian country is held by the United States in trust for the tribe. Trust land is not subject to taxation, and individual Indians on trust land are free of State taxes.^^ Trust lands, and their resources, must be managed for the sole benefit of the tribe so that they will be preserved.-^ In some instances, land is held in trust by the United States for individual Indians.^* Some tribal funds are also held in trust and, in some cases, funds are held in trust for individual Indians.-^ Land held in trust for Indian tribes or individuals must be carefully distinguished from the so-called "public lands," such as those admin- istered by the National Park Service, the Bureau of Land Manage- ment, and the Forest Service. Public lands are administered for the "See, e.g., United States v. Mason, 412 U.S. 391, 397 (1973); Seminole Nation v. Vfiited States, 316 U.S. 286, 296-97 (1942). " See, e.g., Morton v. Mancari, 417 U.S. 535, 540, 552 (1974) ; Vtiited States v. Sandoval, 231 U.S. 228, 239 (1913) ; Cherokee Nation v. Southern Kan. Ry., 135 U.S. 641, 654 (1890). =" Chambers. .Tndlcial Enforeement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213, 1214-15 (1975) (hereinafter cited as "Chambers"). ^ Chambers, supra note 20, pp. 1230-38. 22 See. e.g.. McGla?whan v. State Tax Comm'n, 411 U.S. 164 (1073) ; Warren Trading PoKt V. State To.r Comm'n, 3S0 U.S. 685 (1965) ; Israel & Smithson. Indian Taxation, Trih."l Soverplsnty find Eponomio Bevelonment, 49 N. Dak. L. Rev 269 (1973). 23 See generally. Chambers, supra note 20. ^ 25 U.S.C. § 348. 2^ See, e.g., Cohen, supra note 3, pp. 97, 105-07, 113. 105 piiblic-at-large. Different rules often apply for Indian trust lands which are held, and administered solely for, the affected Indians.^'^ The scope of the ti'ust responsibility extends beyond specific real or personal property which is held in trust. The United States has tlie obligation to provide related services, and to take other appropriate actions necessary to protect tribal self-government,-^ The doctrine may also include a duty to provide adequate social services to In- dians,^* These conclusions flow from the basic notion that the tiust responsibility is a genei-al obligation which is not limited to specific provisions in treaties. Executive orders, or statutes; once the trust relationship has been acknowledged, administrative action is gov- erned by the same higli duty which is imposed on a private trustee.-* The tribes have recourse in the courts if the trust responsibility is breached. For compensable claims arising before 1946, tribes are per- mitted to sue for money damages in the Indian Claims Conmiission.-" For claims arising after that date, the proper court is the U.S. Court of Claims.^^ Many successful suits have been brought for loss of land and for mismanagement of timber, water, and mineral resources. In addition, although the trust responsibility cannot be enforced in court against Congress itself, executi\e officials are subject to suits for injunctive and declaratory relief for breach of the trust duty.^^ A leading example is Pyramid Lake Paiute Tribe v. Morton^ 354 F. Supp. 252. (D.D.C. 1972), where a Federal district court enjoined the Department of Interior from diverting water to a Federal project which reduced the water quality of Pyramid Lake in Xevada. Pyramid Lake is located on a doAvnstream Indian reservation. The court held that the Government's trust responsibility to the tribe was violated by the upstream diversion, even though the divei'sion was not on the reservation. A leading writer on the trust relationship has emphasized the importance of this case in the development of the trust relation- ship : The case, therefore, imposes a duty of loyalty on Federal officials, and sug- gests that when actions or projects of Federal agencies conflict with the trust responsibility to Indians, the non-Indian Federal activity should be operated so as to avoid interference with Indian trust property."' These principles clarify the crucial distinction between Congress and executive agencies in the administration of the trust responsibility. Al- though Congress is not subject to suit for violation of the trust respon- sibility, administrative officials are directly accountable to the tribes through court actions. Administrative agencies operate only pursuant to delegations of authority ^rom Congress. Basic administrative Jaw principles dictate that administrative officials are subject to judicial review for most situations in which they exceed their delegated au- thority.3* Accordingly. Indian tribes and individuals will often have 2« Cohen, supra note 3, p. 287. 289. A good example of the distinction is the Public Land Review Commission, which filed its report to Conpress on the "public lands" in 1970 Indian lands were expressly exempted from that study of the public lands. See 43 U.S.C. § 1400. ^ Chambers, supra note 20, pp. 1217-20, 1236. 1246-48. 28 Chambers, supra note 20, pp. 1243-4.5. See also AIPRC final report, chapter 4 below ^Seminole Nation v. United States, 316 U.S. 286 (1942) ; Manchester Band of Porno In- dians V. United States, 363 F. Supp. 1238 (N. D. Cal. 1973). 3" 2.5 U.S.C. § 70. =128 U.S.C. § 150.5. ^ See generally. Chambers, supra note 20. ^ Chambers, supra note 20, p. 1234. ^5 U.S.C. §§ 701-06. 92-185—77— — 8 106 recourse against the Department of the Interior, or anj' other agency which violates the trust responsibility. Many basic aspects of the trust obligation extend to an individual Indian wherever he or she may bo. The duty to protect his tribal gov- ernment, the duty to protect his trust resources, and the duty to ac- knowledge his tribal identity continue undiminished even though the individual Indian may have left the reservation. The research of this Connnission shows that the Bureau of Indian Affairs, the primary agent of Congress in the administration of the trust responsibility, has used the trust doctrine as a means to develop a paternalistic control over the day-to-day affairs of Indian tribes and individuals."^ The trust responsibility calls for no such course of con- duct. Clearly expressed congressional legislation calls for self-deter- mination and self-government by Indian tribes.^^ Federal-Indian trust law, as expressed both by Congress and the courts, calls for Federal protection, not Federal domination. Plenary Power: Coxgressioxal Authority Omsr Indian Affairs The Constitution grants Congress broad power over Indian affairs. The scope of this power is extraordinary, and is perhaps equaled only by the power of the Federal Government over international relations. Congress' authority in Indian affairs is commonly referred to as "plenary," which means absolute or total. Indians are expressly mentioned twice in the Constitution. "Indians not taxed" are excluded from the count for determining representa- tives to Congress.'" Far more importantly, Congress is expressly given power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." ^^ Congress has ratified many treaties with Indians; thus the treatymaking power and the power to spend money for the "general Welfare of the United States" have also been used to support Congress' authority over Indian affairs.^® The Supreme Court, relying primarily on the commerce clause and the treatymaking power, has recognized that Congress under the Con- stitution has exclusive poAver over Indian affairs.^" The plenary power over Indian affairs is not limited to federally recognized tribes, but rather extends to "all dependent Indian com- munities within its borders." ^^ There are several instances in which the trust relationship has been terminated but later restored by Con- gress.^- The trust relationship may remain in effect, especially in areas relating to land, even though the Bureau of Indian Affairs has failed to designate a tribe as federally recognized.^^ Thus Congress' power 33 See, e.g., Report of Task Force II, pp. 13-17. 39 Report of Task Force IX (vol. 1), p. 75. See also Bryan v. Itasca Countti n «? 96 S. Ct. 2102, 2111 n. 14 (1076). y • »««o« uoMwri/, — u.Ss. — , "'^ U.S Constitution, amendment XIV, sec. 2. 35 U.S. Constitution, art. I, sec. 8, clause 3. 3' U.S. Constitution, art. II. sec. 2, clause 2 (Treaty Power); art I sec ,S cl-insiP 1 (GenpralWelfare).Seegenerally, Cohen, supra note. S, pp. 89-90 ' ' ^^^"^^ ^ *» Mcdlanahan v. State Tax Comm'n, 411 U.S. 164, 172 n 7 (IQlii) " ^«**ed States v. Sandoval, 321 U.S. 28, 46 (1913) ; U.S. v. Ramsey, 271 U.S. 467, 471 « See, e.g., the discussion In Conley v. Ballinger, 216 U.S. 84. 90 (1910) *3 See, e.g.. .Joint Tribal Council of the Passamaquoddv Tribe v. ^Morion H-'S F 2d ^70 (1st cir. 1975) ; cf. Crain v. First National Bank, 324 F. 2d 532 (9th cir 1963) " 107 readies all Indian tribes in the T'nited States, including terminated and "nofederally reco Whiting v. United States, civ. No. 75-3007 (D.S.D. 1975). For a more detailed discus- sion of this issue, see Report of Task Force IX (vol. 1), p. 110. «^Ruiz v. Morton, 415 U.S. 199 (1974). 109 arising from tribal membership.^^ Many tribal provisions call for one-fourth deo^ree of blood of the particular tribe but tribal pro- visions vary widely.^^ A .few tribes require as much as one-half degree of tribal blood and a small number permit any descendant of a tribal member to be enrolled, regardless of the blood quantum.*'* For tribal purposes, that tribal definition is final. Absent express congressional action, the Bureau of Indian Affairs has no power to alter tribal determinations.®^ Indiax Treaties: Cornerstones of Indian Law Indian treaties, which have played such a central role in the develop- ment of Indian law and policy, were negotiated during the 18th and 19th centuries. These legally binding agi-eements were made between governments, the United States on the one hand and the tribes on the other. The courts have treated the parties as substantial equals: both sides agreed to compromises, with the tribes giving up claims to vast areas of land. Treaties were negotiated in the field by members of the executive branch of the Government, and went into effect after being ratified by the Senate. Unless abrogated (i.p., breached or broken) by subsequent Federal statute in whole or in part, treaties re- main fully in effect. Indian' treaties are superior to all State laws and are entitled to equal dia:nity with any Federal statute. They are the "supreme law of the land." «« Treatymaking continued until 1871 when Congress passed legisla- tion which brought future treatymaking with Indian tribes to an end.^' After 1871, no further treaties were negotiated but the United States continued to deal with Indian tribes in essentially the same manner through "agreements'- which are ratified by both the House and the Senate, Executive orders, and statutes.®^ Treaties, while an extremely important part of Federal policy toward Indians, were by no means the only method used to deal w4th Indian tribes. The Trade and Intercourse Acts, which regulated trade with the tribes and controlled the liquor traffic, were another major means by which Congress dealt with the tribes.''^ Treaties, however, de- scjve special mention because of the important legal rights which they establisli, because of their importance in the development of Indian law. and because of their great significance to American Indians today. The courts have always interpreted treaties in a manner favorable to the tribes. The historical realities of brutal and inequitable rela- tions with Indians, along with the serious language problems exist- ing during the treaty negotiations, led to the development of three basic canons of treaty construction : « For discussion of the different policy questions raised by Indian identity for purposes of the preference statutes, see Report of Task Force IX (vol. 1), pp. 185-219. <^ See note 58, supra. '"Id. «5 Cohen, supra note 3. p. 114. , , , '"'T'nitPd States Constitution, art. VI, sec. 2. This provision applies with resard to Indian treaties. Worcester v. Georgia, .31 U.S. (6 Pet.) 515, 559 (1832). Treaties are superior to State laws, including State constitutions, Hauenstein v. Lynham, 100 U.S. 483, 490 (1880). and are accorded equal dignity with Federal statutes. See, e.g., Edye v. Robert- goii. 112 U.S. 580, 599 (1884) ; Reid v. Covert, 354 U.S. 1, 17 (1957). ^" 25 U.S.C. sec. 71. •^•^ See, 'e.s..'Ant'oine v. Washivoton, 420 F.S 194 (1975). ■"^ Francis Paul Prucha, American Indian Policy In the Formatiye Tears, pp. 1-4 (1962) (Harvard Univ. Press). 110 1. Ambiguous expressions in treaties must be resolved in favor of the Indians ; ^° 2. Treaties must be interpreted as the Indians themselves would have foreseen and understood them ; ' ^ 3. Treaties must be liberally construed in favor of the Indians." By using these canons, the courts have given expansive readings of Indian treaties. For example, the word "trust," or similar language, was never used in the treaties, but the courts have implied the existence of a trust relationship in treaties.'^^ The treaty phrase "to be held as Indian lands are held" has been interpreted to include provision for hunting and fishing rights.'^* Treaty provisions reserving the right to fish at "usual and accustomed places" have been held to reserve ap- propriate easement rights over non-Indian land to gain access to off- reservation sites,^^^ The Supreme Court held recently that general provisions for the protection of the Navajo Tribe served to bar the operation of State taxes upon Indians in Indian country." The Winters doctrine, providing that the reservation of sufficient waters for tribal use is implicit in Indian treaties, has been developed and consistently affirmed by the Supreme Court. Under that doctrine^ Indian water rights precede and preempt any other rights established by State law.^^ The fishing rights decisions in the Northwest provide another example of how the canons of construction have protected basic treaty rights from encroachment by the States.'^'' One of the most significant elements of Indian treaty law is that Indian treaties were iiot a grant of rights from the United States to the tribes, but rather a grant from the tril)es to the United States. Thus, all sovereign powers of tribes are retained unless expressly granted away by the tribe in a treaty or expressly taken away from the tribe by Federal statute.'^ Indian treaties, then, are not to be read in a neutral way. The courts have found that the historical circumstances surrounding treaty nego- tiations require rules of construction which cut in favor of the tribes, Indian treaties, like international treaties, can be abrogated by Con- gress.^^ Questions of Avhether Congress actually has intended to abro- gate treaties have arisen frequently. The issue often comes up when administrative officials argiie that general Federal statutes, which do not mention Indian tribes, regulate hunting and fishing rights, water rights, mineral rights, jurisdiction, and rights to the retention of lancL A crucial point is that only Congress has the power to abrogate Indian treaties or otherwise regulate Indian affairs; the administrative agency seeking to limit Indian rights must have specific delegated ""> McClanalian v. State Tax Comm'n, 411 U.S. 164, 174 (1973) ; Carpenter v. Show, 2S0 U.S. 36.3, 367 (1930). '''^Choctaw Nation v. Oklahoma, S97 U.S. 620, 631 (1970) ; United States v. Shoshone Tribe, 304 U.S. Ill, 116 (1938). '^Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943) ; Tulee v. Washington, 315 U.S. 681, 684^-85 (1942). ■^3 See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). ■^1 See., e.g., Menotninee Tribe v. United States, 391 U.S. 404 (1968). ^1" See, e.g.. United States v. Winans, 198 U.S. 371 (1905). ''^ McClanahan v. State Tax Comm'n, 411 U.S. 164 (1973). ""^Winters v. United States, 207 U.S. 564 (1908) ; Arizona v. California, 373 U.S. 546. 599—600 (1963). " See, e.g.. United States v. Washington, 525 F. 2d 676 (9th cir. 1975) ; Sohappy v. Smith. 529 F. 2d 570 (9th cir. 1976). 78 United States v. Winans, 198 U.S. 371 (1905) ; Winters v. United States, 207 U S 564 (1908) ; United States v. Santa Fe R.R., 314 U.S. 339 (1942). w Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Ill aiitlioiity from Congress before it can abrogate a treaty or otherwise diminish Indian rights. The courts have cut back on administrative action affecting treaty rights by requiring very explicit directions from Congress to the agency. Absent such a showing of congressional action, treaty rights remain intact; treaty rights cannot be abrogated "in a backhanded way.'' ^° Although the law is not fully consistent in the area, the better reasoned cases hold that treaty rights cannot be eliminated by admin- istrative action unless there is a specific congressional statute which identifies the specific affected Indian treaty rights and which states that it is the intent of Congress to abrogate such rights.^^ Xo Supreme Court case in the last 50 years has upheld any asserted abrogation of an Indian treaty .®^^ The principles discussed above were developed in the context of Indian treaties; if those principles were limited solely to treaties, many tribes would not benefit from them because many reservations were established by Federal action other than treaties. The courts have recognized, however, that treaties are but one method of dealing with tribes and that treaty law is generally applicable to agreements, statutes, and Executive orders dealing with Indians. The trust relationship, for example, was first applied to the Chero- kee treaty but has si^ce been applied in numerous nontreaty situa- tions.^- The rules of treaty construction apply not only to treaties but also to statutes.^^ Hunting and fishing rights can be established by methods other than treaty.®* Similarly, thr Supreme Court has ruled that exclusive tribal jurisdiction can be established b}' agreement or Executive order, as well as by treaty.®" Indian treaties, therefore, are an important foundation of all In- dian law. Most early court cases involved treaty tribes. Policy changed, however, and the United States began to deal with Indian tribes by other means, such as Executive orders, agreements, and statutes. When those nontreaty tribes came into court, the rules of construction gov- erning treaties were applied. "While this discussion has focused on treaties as law, any discussion of treaties would be incomplete without mention of tlieir symbolic and moral significance to the Indian people. Unlike almost all other docu- ments in Anglo-American law, treaties are seen as moral statements which represent the "word of the nation" and the ''sanctity of the pub- lic faith." ®^ An Indian treaty is "a bulwark against State encroach- ment * * *. It is a monument to past guilt ; and efforts to change the law include, in themselves, evidences of continued uneasiness." ®^ i" Menominee Tribe v. United States, 301 U.S. 404. 412 (196S). 5^ Spe. e.g.. United States v. White. 508 F. 2cl 45."^ (Sth cir. 1974) : Wilkinson & Volkman, Judicial Review of Indian Treaty Abrogation : "As Long as Water Flows, or Grass Grows Tpon the Earth" — How Long A Time is That?. 6.3 Cal. L. Rev. 601 (197.5). fi'' In F.P.C. V. Tiiscarora Indian Nation, 362 U.S. 99 (1960) a taking of Indian lands was upheld by the Court, but the majority opinion squarely held that the lands in question were "not subject to any treaty." 362 [T.S. at 123. 82 Chambers, supra note 20, pp. 1214-1.5. See, e.g.. United States v. Ahtanum Irrigation District, 236 F. 2d 321 (9th cir. 1956) and United States v. Walker River Irrigation Dis- trict. 104 F. 2d 334 (9th cir. 1939). ^ See, e.g., Antoine v. Washington, 420 U.S. 194 (1975). ^ See, e.g., Antoine v. Washington, supra. ^ Perrin v. United States, 232 U.S. 478 (1914) ; Fisher v. District Court, 424 U.S. 382, 96 S. Ct. 943 (1976). 6« United States v. Winans, 198 U.S. 371, 380 (1905) ; Ward v. Race Horse, 163 U.S. 504. 516 (1S96) ^ Monroe Price, Law and the American Indian, p. 294 (1973). 112 This Commission, in hearin;? after hearing, has seen that Ameri- can Indians rightfully expect that this Nation will continue to abide bv the solemn promises made in these old laws : The Constitution is ail old law, too. Thus while treaties can be broken by Congress, such extreme action must be truly a last resort.^^ As Justice Hugo Black put it : "Great Nations, like great men. should keep their word.'] «^ Indian treaties are among the very few laws in our society which raise those kinds of issues. Jurisdiction: Varying Eights and Responsibilities in Indian Country THE importance OF JURISDICTION "Jurisdiction" sounds like an arcane word for lawyers only. To res- ervation Indians, it is far more than that. Jurisdiction is a living reality which has a direct, dramatic effect on their day-to-day lives. Sovereignty refers to the powers of a government. Jurisdiction, as used here, refers to the human conduct (subject matter jurisdiction) and to the geographic area (territorial jurisdiction) over which a gov- ernment's sovereign powers can be exerted. The question is whether conduct in Indian country (which usually means all land within res- ervation boundaries) will be regulated by the legislatures and courts of the tribes themselves or by the State or Federal Government. Tribal councils (tribal legislatures) and tribal courts possess orig- inal jurisdiction within Indian country. As a general rule the States have no jurisdiction over matters involving Indian tribes or Indian people in Indian country absent a Federal statute giving them juris- diction. Accordingly, absent Federal authority to a State, all Indian reservations within a State are islands where the laws of the State cannot reach. Those islands are governed by the institutions of the tribes. To put it another way, the laws of Arizona have no effect for most purposes in New Mexico or Utah. Absent express Federal legisla- tion, the laws of Arizona have no effect for most purposes on the Papago and Navajo reservations. Only Federal legislation can change that pattern. For its part, the Federal Government possesses and exercises only that jurisdiction which the Congress expressly provides for, even though potentially, its plenary authority is all encompassing. Jurisdiction is both criminal and civil. Criminal cases involve wrongs against the public, ranging from disorderly conduct to mur- der, which become the subject of prosecutions resulting in imprison- ment or fine. If a legislature has jurisdiction, it can define criminal conduct in many areas which are especially sensitive to Indians, such as questions involving hunting and fishing rights. The existence of jurisdiction will determine whether crimes will be defined by tribal councils or by State legislatures or Congress. Questions of criminal jurisdiction will also resolve whether violations of such criminal laws ■will be handled by Indian or non-Indian judges, jurors, prosecutors, policemen, and jailers. 88 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). ^F.P.C. V. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (dissenting opinion). 113 Criminal jurisdiction, then, will determine whetlier crimes in Indian country are tried in tribal courts by Indians ; in the local State courts where hostility by non-Indians is often ^reat; or in Federal courts which are often inconveniently distant from the reservations but where there is usually less antagonism ajjainst Indians. In some situ- ations, two governments can have "concurrent" jurisdiction. That is, it is sometimes possible for a criminal defendant to be tried in either tribal or State court for alleged criminal conduct. In other situations, it is possible that a criminal defendant could be subject to the con- current jurisdiction of either the tribal court or the Federal cx)urt. In most cases, when two courts have concurrent jurisdiction, the in- dividual will be tried and punished in the court where the case is first prosecuted. Civil, as opposed to criminal, jurisdiction involves private or indi- vidual disputes such as debts, automobile accidents, and disputes over leases. Grovernments also pass civil laws in critically important areas such as child custody, education, zoning, domestic relations, envi- ronmental planning, and alcoholism. Again, the civil jurisdictional issue is truly fundamental : whether these important laws affecting Indian country will be passed by tribal councils or by non-Indian legislatures. Similarly, the question arises as to which government's courts have jurisdiction to hear civil cases — tribal courts, State courts, or Federal courts. As with criminal jurisdiction, in a limited number of situations, there can be concurrent civil jurisdiction between two courts. Jurisdiction to tax has been the subject of continuing litigation and deserves special mention. The States have sought to increase their revenues by taxing persons and activities on the reservations. An in- creasing number of tribes believe that tribal taxation jurisdiction is essential to the long range economic viability of tribal governments. The problem is twofold. For most purposes, reservations are immune from State taxes; individual tribal members and struggling tribal businesses badly need those exemptions. On the other hand, tribes themselves have powers to tax persons and activities on the reserva- tions. Future tribal economic self-sufficiency may well depend upon the continued existence of that power. The discussion which follows provides a general outline of the jur- isdictional pattern in Indian country. A more detailed analysis of each of these areas appears in chapter 5 of this report. INDIAN COUNTRY Jurisdiction is often a question of the specific geographic area which is covered by the sovereign powers of a given government. Usually Indian jurisdiction cases involve disputes within reservation bounda- ries. The technical term "Indian country," however, is properly used to determine the geographic extent of tribal jurisdiction, and the geo- graphic limits on State jurisdiction. The term "Indian country" is derived from 18 U.S.C., sec. 1151, which is a Federal criminal juris- diction statute. That statutory definition of Indian country applies as well to questions of civil jurisdiction.®" ^"DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2 (1975). 114 The Indian country statute has three separate parts. First, Indian country is defined as all lands within the limits of any Federal Indian reservation, "not withstanding the issuance of any patent." Land within reservation boundaries which has been opened to settlernent by non-Indians is Indian country unless Congress intended to diminish the reservation.'-^^ Thus, Indian country includes all land within the reservation boundaries, including "checkerboarded" land — that is, those areas within Indian reservations where non-Indian land is inter- spersed with Indian land. Second, Indian country includes all de- pendent Indian communities within the borders of the United States.^- Third, Indian country includes all Indian trust allotments, even though they may not be within the boundaries of a reservation. Normally, unless expressly limited by Federal legislation, Indian tribes have criminal and civil jurisdiction in Indian country. On the other hand, absent express Federal legislation. States do not have ju- risdiction within Indian country. The reverse is true outside of Indian country : absent express Federal law to the contrary, Indians leaving Indian country have generally been subject to State law otherwise a,pplicable to ail citizens of the State.^^ ORIGINAL EXCLUSIVE TRIBAL JURISDICTION Congress, acting pursuant to its plenary power, has passed a number of laws altering original exclusive tribal jurisdiction. Exclusive tribal jurisdiction, however, existed before such laws were passed. It is best, therefore, to examine the nature of exclusive tribal jurisdiction and then to discuss the ways in which Congress has limited that jurisdiction. Two cases serve to show the nature of the exclusive tribal criminal and civil jurisdiction which exists in the absence of limiting Federal legislation. In Ex parte Croio Dog^ 109 U.S. 556 (1883), the Supreme Court held that a Federal court had no jurisdiction to try a Sioux Indian for the murder of a fellow Indian which occurred in Indian country. In the absence of any Federal legislation to the contrary, therefore, only the Indian tribe has jurisdiction to punish the murder of an Indian by an Indian on the reservation. The same principle applies to all other crimes in Indian country ; unless Congress so pro- vides, there is no State jurisdiction and there is no Federal jurisdiction. The same principles apply in civil situations. Schantz v. White Lightning^ 231 N.W. 2d 812 (N.D. 1975), involved an automobile accident on the Standing Bock Sioux Indian Reservation. The allegedly negligent defendant was an Indian. A Federal court had earlier ruled that the action could not be brought in Federal court because there was no express Federal statute granting jurisdiction. The North Dakota Supreme Court held that the State courts had no juris- diction over the subject matter. Only the tribal court had jurisdiction to hear the case. "1 Kee, p.ff.. Mnttz v. Arnett, 412 U.S. 481 (1973) ; Decoteau v. District County Court, 420 U.S. 425 (1975). 92 Uniteri states v. fJancloval, 231 U.S. 228 (1913). ^ Mescalero Apache Tribe \. Jones, 4^11 U.S. 145 (1973). 115 FEDERAL STATUTES ALTERING JURISDICTION IN INDIAN COUNTRY Thus, in the absence of express Federal statutes altering the jurisdic- tional pattern, Indian reservations are geographic areas, governed by tribal law, where State and Federal jurisdiction do not reach. That jurisdictional pattern, however, is subject to Congress' plenary power. On several occasions, Congress has exerted its plenary power and altered the jurisdictional scheme in Indian country. Angered by the result in the Croio Dog case, Congress in 1885 passed the Major Crimes Act, 18 U.S.C. sec. 1153. This Act extended Federal jurisdiction over seven enumerated crimes, which have now been ex- panded to 14. Under the Major Crimes Act, therefore. Federal courts now have jurisdiction over any Indian in Indian country who commits one of the specified crimes against the person or property of another Indian or any other person.^* It is unclear whether the Major Crimes Act eliminates tribal jurisdiction entirely or whether it provides for concurrent Federal and tribal jurisdiction.''^ Congress has also passed the General Crimes Act, 18 U.S.C. sec. 1152, which provides for Federal jurisdiction over crimes, other than the enumerated major crimes, by both Indians and non-Indians in Indian country. The Act provides that Federal laws applicable to Federal enclaves will be effective in Indian country. Exceptions to the Act are crimes committed by one Indian against the person or property of another Indian ; Indians punished by the local law of the tribe ; and areas preserved to tribes by treaty as being within their explicit juris- diction. The Act establishes Federal jurisdiction but does not eliminate concurrent tribal jurisdiction.^^ The General Crimes Act has been interpreted to permit the indirect enforcement of State law in Indian country. Althousfh the States them- selves cannot enforce such violations of State law, Federal authorities may bring such a prosecution in Federal court, basing the prosecution upon a violation of State law. This result was reached in Williams v. United States. 327 U.S. 711 (1946), when the Supreme Court reasoned that the General Crimes Act, in extending Federal enclave laws to Indian country, also extended the Assimilative Crimes Act, 18 U.S.C. sec. 13. The Assimilative Crimes Act, in turn provides that State law is applicable within Federal enclaves if the act in question is not other- Avise punishable by any Federal statute.®' The application of the As- similative Crimes Act in Indian countiy is subject to all the limitations in the General Crimes Act. The aboA'e Acts, then, gave the Federal courts authority to hear various criminal cases arising in Indian country. Under those Acts, the States acquired no jurisdiction in Indian country. Although some ■•^ The .iurisdietion of tribal rniirti? has been limited in one relevant respect which does not involve Federal statutes. The Supreme Court has held that State courts have jurisdic- tion over crimes by a non-Indian defendant aarainst a non-Indian victim in Indian countrv ^ee, e.g.. Vnited mates v. McBrntneii, 104 U.S. fi21 (1881) ; Draper v. United States l/)4 U.S. 240 (1896) ; United States ex rel. Ray v. Martin, 326 U.S. 496 (1946) ^^f^its, wi fs See the discussion in Report of Task Force IV, pp. 36-.39 »« Report of Task Force IV, p. 40 ; AIPRC Final Report, ch. 5, below. '•' This issue is discussed in more detail in Report ot Task Force IV, pp. 40-42 and ch. 5, 116 State laws indirectly reach to Indian country, the States cannot brin^^ such prosecutions in their own courts. If such prosecutions based on State law are to be brought, they must be brought in Federal court by Federal prosecutors. The most fundamental realignment of jurisdictional patterns in Indian country occurred during the termination era. In 1954, Congress for the first time passed a general statute extending the jurisdiction of State courts to Indian country through the passage of Public Law 280. This statute gave the States jurisdiction over some criminal matters, 18 U.S.C. sec. 1162, and some civil matters, 28 U.S.C. sec. 1360, in Indian country. Public Law 280 provides for State assumption of jurisdiction in Indian country in tliree separate Avays. First, assumption of jurisdic- tion was mandatory in five, now six, States.^^ Second, in those States with State constitutional disclaimers barring jurisdiction in Indian country, assumption could be accomplished by appropriate State action to override the constitutional disclaimer.'-'" Third, in all other States, assumption of jurisdiction was originally at the option of the State by affirmative legislative enactment.^"" Since 1968, no State can assume Public Law 280 jurisdiction without the consent of the tribe in question; 25 U.S.C. sec. 1321, 1322. In addition, there is now a statutory provision for retrocession, which permits the States to re- linquish jurisdiction which it might have asserted under Public Law 280; 25 U.S.C. sec. 1323. Public Law 280 expressly excludes any State jurisdiction relating to the alienation or taxing of trust property, or to treaty recognized hunting, fishing, or trapping rights. The full extent of State legislative jurisdiction under Public Law 280 was unclear for years. A major area of confusion has now been resolved by the Supreme Court in Bryan v. Itasca County^ 96 S. Ct. 2102 (1976), where the Court held that the State was without au- thority to levy a personal property tax on the reservation. The Court found that Public Law 280 did not extend general civil regulatory powers, including taxation, into Indian country. Kather, Public Law 280 relates only to the application of State criminal and civil law in court proceedings. In the civil area. Public Law 280 provides State courts as a forum to resolve private disputes, but does not permit the legislature generally to regulate conduct in Indian country. Many questions in regard to Public Law 280 remain unanswered. ^*'^ It permits different results from State to State and, in some cases, from reservation to reservation within States. This complexity is particularly apparent in five States — Idaho, Mississippi, Nevada, New Mexico, and Washington — where only partial State subject matter jurisdiction has been asserted. The present statutory frame- work, which permits retrocession and requires tribal consent, seems likely to result in a shrinkage of State jurisdiction. 8^ The five original States are California, Minnesota, Nebraska. Oreson. and Wisconsin, althoush specified reservations within those States were not made subject to Pulblie Law 280. Alaska vras added to this mandatory group at the time of its statehood. w These States are Arizona, Montana, New Mexico, North Dakota, South Dakota, Utah, and Washington. For the nature of the action taken concerning Public Law 280 in these States, «ee the Report of Task Force IV, pp. 14-19. 100 For the States which have assumed Public Law 280 jurisdiction, see Report of Task Force IV, pp. 8-9. 101 /See generally, Report of Task Force IV, pp. 4-33, and ch. 5, below. 117 The final major jurisdictional Act is the Indian Civil Eights Act of 1068. 25 U.8.C. sec. 1301-03. That Act, which was bitterly opposed by most tribes, applied to tribes statutory standards that are similar, but not identical, to those constitutional requirements contained in tlie Bill of Rights and the Fourteenth Amendment."^ The Act ex- pressly gives jurisdiction to the Federal district courts to proceed by habeas corpus and has been construed to permit declaratory and injunctive relief.^"^ The Indian Civil Rights Act does not in any way extend jurisdiction to State courts, but, in fact, specifically authorized States to retrocede jurisdiction previously acquired under Public Law 280. Tliere have been other Federal statutes, usually not mentioning Indians expressly, which have been construed to create jurisdictional inroads into Indian country. The effect of these Acts has been referred to as "creeping jurisdiction'", because they have had a clear impact on the reservations even though they were not expressly directed at affecting the Federal-State-tribal jurisdictional relationship."* Ex- amples of general Federal legislation which may have full or partial effect in Indian country are the Administrative Procedure Act, in- cluding the Freedom of Information Act; Federal condemnation statutes, often administered by the Army Corps of Engineers; the Xational Envii-onmental Polic}' Act: the Clean Air Act, which dele- gates some authority to States; the Occupational Safety and Health Act. which also delegates some authority to the States; and the Na- tional Labor Relations Act. The question of whether all or some of these Acts in fact apply in Indian country is not fully resolved, but some low^er courts have applied them to Indian country; the conse- quence is to allow some increased State and Federal jurisdiction on the reservations. THE RECENT CASES During the last 20 years the courts have clarified many of the basic issues concerning tribal and State jurisdiction in Indian coun- try. Tribal jurisdiction over individual Indians and Indian-owned land in Indian country is well-established with one major exception: the courts have not yet ruled whether tribes have concurrent jurisdic- tion with the States when Public Law 280 applies. Tribal jurisdiction over non-Indian individuals "^ and land ^"'^ has been upheld by opin- ions in the lower courts and appears to be supported bv the Supreme Court opinion in Uiufed States v. Mazurie, 419 U.S. 544' (1975)."^ The full extent of tribal jurisdiction over non-Indians, however, has not been comprehensively treated by the United States Supreme Court. The United States Supreme Court, construing congressional stat- utes, has remained a bulwark against asserted State jurisdiction in '0- Report of Task Force IV. pp. 12n-4ft. 103 xpp. e.g.. JohVftoti V. Loicer Ehrhn Tribal Communitv. 484 F. 2d 209 {9th cir. 1973) ; Luroii V. Rosebud Sioux Tribe of South Dakota, 455 F. 2d 698 (8th cir. 1972). T^'^ For a review of this matter. «pe Report of Task Force IV, pp. 47—54, and Task Force IX. pp. 7(5-94. ^"■^.?ep, e.g., Oliphant v. Schlle. .^44 F. 2d, 1007 (9th cir. 1976), cert, granted; Confeder- afeil Trihen of the ColviUe Indian Reservation v. Washington, 412 F. Supp. 651 (E.D. Wash. 1976). i"« Siee, e.g.. Barta v. Onlala SioiiT Tribe. 259 F. 2d 553 (8th cir. 1958) ; United States v. Blrrkfeet Tribal Court, 244 F. Supp. 494 (D. Mont. 1965). ^'^" Tlie Ma~inie opinion is discussed above in relation to tribal sovereignty. 118 Indian country. As long ago as 1832, the Court rejected the premise that Georgia law could apply on the Cherokee Keservation. The em- phasis on tribal government, and freedom from State jurisdiction in the absence of express Federal authority, has continued down to the present day. The recent cases have consistently struck down attempts by the States to extend their jurisdiction to Indian country. In Williams v. Lee, 358 U.S. 217 (1959) , the Court held that the Navajo Tribal Court had exclusive subject matter jurisdiction over an action for debt by a non-Indian against an Indian : "The cases in this Court have con- sistently guarded the authority of Indian governments over their res- ervations." In Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685 (1965), the Court held that a State gross proceeds tax did not apply to a non-Indian trader on the reservation because of the general Federal regulatory scheme over traders : "Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the reservation and its affairs without state control " * *.*' The leading case, McCIanahan v. Arizona Tax Commission, 411 U.S. 164 (1973), struck down a State attempt to levy a personal income tax on a reservation Indian : the creation of the Navajo reservation "was meant to establish the lands as within the exclusive sovereignty of the Navajos under general Federal super- vision." Fisher v. District Court, 424IT.S. 382 (1976) held that Mon- tana State courts did not have jurisdiction over an adoption case involving reservation Indians because "state-court jurisdiction plainly would interfere with the powers of self-government conferred upon the Northern Cheyenne Tribe and exercised through the tribal court." The Supreme Court has been almost unyielding in rejecting State jurisdiction in Indian country, absent express congressional grant to the States, even when non-Indians are involved. State jurisdiction over non-Indians will be struck down if "tlie State action infringed on the right of reservation Indians to make their own laws and be ruled by them." ^°® The only case in which the Supreme Court has used this "infringement" test from Williams v. Lee to permit any kind of State jurisdiction in Indian country is Moe v. Confederated Salish and 'Kootenai Trihes, 96 S. Ct. 1634 (1976). In Moe, Wiq Court prohibited any taxation of Indians, but permitted the State to require Indian merchants to collect a tax assessed against non-Indians purchasings cigarettes from the Indian merchant. A line of older cases has per- mitted the State covirts to take jurisdiction over crimes in Indian coun- try in the limited number of situations in which both the criminal defendant and the victim are non-Indians.^°^ The Supreme Court has been even more protective of tribal self- government when State? have asserted jurisdiction over Indians in Indian country. The Court looks first to determine whether Federal preemption has occurred. The most common method of Federal pre- emption occurs when an Indian reservation is established ; once that happens Congress is found to have excluded State power over the reservation by "preempting the field." Once Federal preemption is found to exist, the Court will look to see if there is an express statute ^0% Williams V. Lee, 358 U.S. 217 (19.j9). 1*9 See footnote 94 ; supra. 119 explicitly giving the State jurisdiction over the reservation. If there is no such statute, any asserted State jurisdiction over the reservation must be analyzed against the "backdrop'* of tribal sovereignty."° The many recent opinions make it abundantly evident that the Court will view any attempted State incursion in the context of a vigorous and far-reaching notion of tribal sovereignty. The leading example is Bryan v. Itmca County^ 96 S. Ct. '110-2 (1976), where the Court found that even "Public Law 280" does not extend general State tax and regulatory law into Indian country. It is instructive to place the immunity of Indian tribes from State jurisdiction in historical perspective. Since WiUiams v. Lee was handed down in 1958, the Supreme Court has permitted State jurisdiction over non-Indians in Indian country only once — and that was in the very limited context of il/oe, discussed above. Since that period, the Court has never upheld any asserted State jurisdiction over Indians in In- dian country. Indeed, in its long history the Supreme Court has never, absent express congressional authority, permitted any State to as- sume any jurisdiction whatsoever over Indians in Indian countrj-. Synthesis : Indian Tribes and People in America's Legal and Political System Political science texts commonly state that there are four levels of government in the United States : the Federal Government, the State governments, the county governments, and local governments. In States where Indian country is located, that notion is incorrect and confusing. In fact, in those States there are two separate chains of government: the Federal Government and Indian tribes, on the one hand; and State, county, and local governments on the other. This is not to say that Indian tribes are instrumentalities or creations of the Federal Government. They are not. ^^^ It is analytically essential, how- ever, to recognize that Federal law, not State law. is preeminent in Indian country. Tribal powers spring from the tribe's own inherent sovereignty and can be diminished only by express Federal, not State, action. From the early days of this Eepublic, local interests have placed the greatest pressures on Congress to limit the land bases and powers of tribal governments. In some instances, such as the Allotment Act, Public Law 280, and the Termination Acts, those pressures were no- tably successful. But, when one considers the long historical sweep of Federal-tribal relations, the marvel is that tribes have retained so many of their es- sential governmental powers. Similarly, with the exception of Public Law 280, tribal governments have retained the great part of their immunity from State jurisdiction. This is partly due to congressional actions such as the Indian Re- organization Act and, most particularly, the progressive legislation during the 19T0's. Congi-ess has truly been a trustee during those periods. ^^ McClanalian v. f^tate Tax Comm'n. 411 U.S. 164 (1973). McClanalian Is discussed more thoroughly above. See text following footnote 8. '^'^ See, e.g.. Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) ; Talton v Mayes, 163 U.S. 376 (1895). 120 The station of American Indians in our society is also due to the classic opinions of the United States Supreme Court which developed the basic Indian law doctrines when the Cherokee Tribe came to that court of last resort in the 1830's. Those principles have since been reaffirmed and applied to other tribes and to other circumstances. Both of those doctrines — tribal sovereignty and the trust responsibility — remain vital and far-reaching today. The development of Indian law and policy has not always been even. For the tribes, it has sometimes been two steps forward and one step back. But there can be no question about the essence of modern Fed- eral Indian law and policy: it stands for strong tribal self-govern- ment and for strict protection against assertions of State jurisdiction. The three branches of the Federal Government have all spoken on those points. Federal policy cannot, of course, provide a full picture of life on the reservations, in the cities, or in those areas occupied by terminated and nonfederally recognized tribes. It is a long way from Capitol Hill, the White House, and the Supreme Court building to Indian country. Even today, many tribes exercise relativel}' few powers of self- government. No tribe has exercised the full range of those powers. The tribes still feel the effects of the restrictive Federal policies laid down between 1871 and 1933. But since the termination era abated during the late 1950's and especially during the 1970's, the definite thrust of tribal policy has been toward a greater use of their powers of self-government. The terminated and nonfederally recognized tribes have sought to develop their existing rights and have attempted to reestablish the full Federal- tribal relationship. The federally recognized tribes, taken as a whole, have moved forcefully and responsibly in the direction of developing their governmental systems. Tribal legislatures are adopting social programs, land use planning measures, and tax plans to provide for the future. Tribal courts are expanding their systems of justice. Thus the States usually cannot govern on the reservations, but the tribes are showing that they can do the job competently and fairly. These developments hold the greatest promise for the tribes. They hold promise for the land, which has been there forever, and for the generations which will be there tomorrow. Ultimately, that promise can only be realized by American Indians themselves. But the distinc- tive doctrines of Federal Indian law and policy are fundamental tools which the tribes have used and are using to fulfill that promise. CHAPTER FOUR TRUST RESPONSIBILITY The Federal trust responsibility emanates from the unique relationship between, the United States and Indians in which the Federal Government undertoolc the obligation to insure the survival of Indian tribes. It has its genesis in interna- tional law, colonial and U.S. treaties, agreements, Federal statutes and Federal judicial decisions. (121) 92-185—77 W CONTENTS Page Introduction 125 Trust relationship 125 Tribal sovereignty and Indian citizenship 126 Wardship versus trusteeship 126 Trustee's duty of care 127 Courts find Government accountable 128 Conflict of interest 129 Scope of trust obligation 129 Congressional guidance required 132 Should the trust be specifically defined? 132 The trust concept is a constantly evolving doctrine 133 Development of a sound trust policy 133 Recommendations : A. Statement of policy 136 B. Indian trust rights impact statement 13T C. Legal representation for Indians 137 D. Authorization for award of attorney's fees 138- (123) CHAPTER FOUR TRUST RESPONSIBILITY Introduction The Federal trust responsibility to American Indians is one of the most important as well as most misunderstood concepts in Federal- Indian relations. Admittedly, it is a rather confusing legal concept with murky origins and inexact application. Indian opinion is clear that, along with tribal government powers, a reaffirmation by Con- gress of the Federal trust responsibility could go far in improving Federal-Indian relations and setting a firm course for Government policy which would give substance to self-determination for Indians. It should be noted that many of the 11 Commission task forces dis- cussed in their reports various aspects, legal analyses, and historical factors in the development of the Federal trust relation.^ Moreover, several excellent law review articles and general essays have ex- amined Federal judicial decisions, statutory and treaty law, and the historical evolution of the trust doctrine.^ At least one of these has al- ready been published in a congressional committee print.^ And Con- gress previously has conducted hearings on matters which relate di- rectly to what the trust means and how it is and should be adminis- tered.* What follows is a brief discussion of these elements of the law and history which are most relevant as background for the recommendations. The Trust Relationship The relationship of the United States to Indians is "perhaps unlike that of any other two people in existence.*' ^ This statement was made by the Supreme Court almost 150 yer.rs ago, and while there have been great changes in that relationship since that time, it is still "marked by peculiar and cardinal distinctions which exist nowhere else.'" '^ One ^ See U.S. Cougress. American Indian Policy Review Commission. Final Keport of TasFc Force One, Trust Responsibilities and the Fetleral-Indian Relationship, including Treaty Review, sec. 7 ; Final Report of Task Force Two, Tribal Government ; Final Report of Task Force Three, Federal Administration and Structure of Indian Affairs ; Final Report of Task Force Five, Indian Education; Final Reiwrt of Task Force Seven, Reservation Re- source Development and Protection ; Final Report of Task Force Eight, Urban and Rural Non-Reservation Indians (45-56) ; Final Report of Task Force Nine, Law Revision, Codi- fication and Consolidation. Washington, U.S. Gov't. Print. Off., 1976. Final Reports of Task Forces are hereinafter cited by Task Force number. 2 For example. R. Chambers, Judicial Enforcement of the Federal Trust Responsibilitv to Indians, 27 Stanford L.R. 1213 (1975) ; C. Wilkinson and .1. Volkman, Judicial Review of Indian Treaty Abrogation : "As Long as Water Flows, or Grass Grows upon the Earth — How Long a Time Is That?" 63 Cal. L.R. 601, 612-617 (1975). ^^ U.S. Congress, Senate Comm. on Judiciary, Subcomm, on Administrative Practices and Procedure. R. Cliambers. A Study of Administrative ODnflicI of Interest in the Protection of Indian Natural Resources. Washington, U.S. Gov"t. Print. Oil"., 1971 (91st Cong., 2d sess. Senate Comm. reprint). *E.g., see hearing testimony on the proposed Indian Trust Counsel Authority. U.S. Con- gress Senate Comm. on Interior and Insular Affairs, hearings before Subcomm. on Indian Affairs on Nov. 22, 2.3. 1971. Washington, U.S. Gov't Print. Off. (92d Cong., 1st sess). 5 Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831). «Id. (125) 126 ■of those distinctions involves the trust responsibility which the Fed- eral Government owes to Indians. Ill The United States holds legal title to Indian lands, yet those lands cannot be disposed of or managed contrary to the equitable title rest- ing witli Indians. This means that while the United States Govern- ment has the appearance of title as the nominal owner of Indian trust lands, it is actually holding title entirely for the benefit and use of the Indian owners. Tribal Sovereignty and Indian Citizenship Indian tribes are not parties to the U.S. Constitution or explicitly institutionalized as part of the federal system of governmental power, jet, siinilar to States, tribes do retain that degree of governmental sovereignty which they have not relinquis-hed to the United States Government.^ In other words, in the Constitution, the States delegated ■ to the Federal Government certain powers, including whatever powers they may have had over Indian tribes and lands.^ Similarly, Indian tribes, pursuant to treaties and agreements, relinquished certain powers to the Federal Government and retained others. Tribal mem- bers are United States citizens, yet they are citizens of their tribes also, giving them riglits and privileges distinct from any other racial or cultural group in the Nation. Other examples of the different status pertaining to Indians are numerous but tlie point is that there is pres- ent in law and policy certain rights which are unique to Indian tribes and people. The Federal trust responsibility emanates from the unique rela- tionship Ixitween the United States and Indians in which the Federal Government undertook the obligation to insure the survival of Indian tribes. It has its genesis in international law. colonial and U.S. treaties, agreements. Fedpral statutes and Federal judicial decisions.^ It is a "duty of protection" which arose because of the "weakness and help- lessness" of Indian tribes "so largely due to the course of dealings of the Federal Government with them and the treaties in which it has been promised * * *." ^° Its broad purposes, as revealed by a thought- ful reading of the various legal sources, is to protect and enhance the people, the property and the self-government of Indian tribes. The extent to which these purposes have been understood fully, let alone carried out, have varied greatly over the decades. This lack of under- standing and consistent policy has contributed immeasurably to Indian resentment and suspicion of Government programs. Wardshtp Versus Trustkksiitp 'When Indians say they want control over their lives.^^ they often find the Federal trust responsibility being used as a tool Ceither de- liberately or innocently) to deny them that control, to inject Federal T See F. Cohen, Handbook of Federal Indian Law 122 (1941). srs ron«t art. ITT. sec. Sf?!). See Worre.ifer v, Opornla. Zl F.S. 515 (1832). « See generally. Air'UC, Task Force Nns. 1 and 8: also Tl. Chambers, notf 2, svpra. At least with respect to Indian lands, the Trade and Intercourse Act created a Federal trust responsihiiny. Passamnquoddu Trihe v. Mortnn, 528 F. 2d. 370 (1st clr. 1975). M TJvited Stafrt^ y. Knanwn. 118 U.S. 375. .'584 (1886). 11 fipp p £r. aTPRC Tps'- Vovcp No. 3. apn. T>. Dpclnrfltlnn nf Indian Purpose: aUr> Special Tribal Report of the Northwest Affiliated Tribes to the AIPRC. 127 bureaucracy where there should be self-government, to encourage paternalism where cooperation or independence should prevail. Much of this misuse could be avoided if the Federal duty would be viewed as flowing from a trustee/beneficiary relationship rather than a guardian/ward relationship. Although Indians have sometimes been referred to by the courts as '"wards*' and while this term may have been a fair description in the 1800's. it is a misleading characterization of the modern-day status of Indians. There is a very significant dif- ference in the authority and control which may be exercised by a guardian as opposed to a trustee. In common law, the purpose of a guardianship is to protect minors or incompetents. The guardian does not have title to the ward's prop- erty but he does have the power to manage it. He is under the direct supervision of a court and is not required to consult with the ward in carrying out his duties.^^ This is distinguished from' the Indian situation in which, like the common law trust, title to the property is split (thus requiring the consent of both the Federal Government and the Indians in order to dispose of the property), where manage- ment of the property is shared, and where the responsibilities of the Federal Government to account to the trust beneficiary are consider- ably broader than merely accounting to a court for the management of a ward's property. The relationship should be thought of not only in terms of a moral and legal duty, but also as a partnership agree- ment to insure that Indian tribes have available to them the tools and resources to survive as distinct political and cultural groups. In many instances, the duty of the Federal Government in this relationship has been stated as one of "care'" and "protection" of Indians. For example, in the treaty with the Cherokees of Novem- ber 28, 1785.^^ the United States agreed to "give peace to all the Cherokees, and receive them into the favor and protection of the United States," to provide "benefit and comfort" and to prevent "in- juries or oppressions". (Article IX). In the treaty, both the United States and the Cherokee Tribe were referred to as "contracting parties" (Article XIII). This language can be viewed as creating an "express trust" although the term "trust" has not been used.^* Trustee's Duty of Care The Federal duty can also be likened to the "implied trust" in com- mon law whereby a trust is created by operation of law. Generally, such trusts are recognized by the courts on the basis of an implied intention of the parties to a transaction (resulting trust) or on the basis that recognition of a trust is necessary in order to prevent the unjust enrichment of one party who committed fraud, deception or some other wrongdoing (constructive trust). ^^ In such circumstances, the requirements and restrictions imposed on a trustee are recognized even though no formal trust document creates them. '2 5 A. Scott. Law of Trusts (3d ed. 1967). " Vol. II. Kappler's Indian Affairs, Laws and Treaties 8-10. " Jt\ order to create a trust It is not necessary to actually use the term "trust'. Intent and circumstances will determine if an actual trust has been created. See, 1 A. Seott, Law of Trusts 174-1S7 (M ed. 19R7). «.5 A. Scott, Law of Trusts 321.3-.3216 (3d ed. 19R7». 128 This analysis of the United States duty to Indians as that of a trustee to his beneficiary is supported by many judicial decisions where common law trust principles were used to measure the actions of the Federal Government toward Indians.*^^ "VVliether the creation of the responsibility is deemed an express trust or implied trust and whether the nature of the duty is identified as an active trust or a. passive trust, the results are the same : the Federal Government is a fiduciary and as such is "judged by the most exacting fiduciary standards." ^^ This means that it must act with good faith and utter loyalty to the best interests of the beneficiary.^^ It must keep the beneficiary informed of all significant matters concerning the trust and must not engage in "self-dealing." ^^ Under common law prin- ciples, if the trustee manages the trust propertj^ in such a way that he may benefit (such as, for example, buying property for himself) and the beneficiary has not been fully informed of the transaction and consented to it, the transaction is voidable by the beneficiary, even though the trustee may have acted in good faith and the bargain Avas a fair and reasonable one. And even if the beneficiary did consent to the transaction prior to its taking place, he may still be able to void it if the trustee can be shown to have failed to disclose essential facts which he knew or should have known, or if he fraudulently induced consent, or if the bargain was not fair and reasonable.^" CouETS Find Government Accountable In addition to good faith and loyalty, the fiduciary relationship- also requires that the trustee exercise the care, diligence, and skill of a prudent person in managing the trust assets of the beneficiary. This common law principle has been directly applied to the Federal trust responsibility to Indians.^^ These doctrines are being applied increasingly by the courts to the actions of the executive agencies of the United States with respect to Indian lands,^^ water resources,-^ and trust funds.^* But there is a key distinguishing factor present in the Federal trust relationship with Indians which does not occur in any other trust relationship: The trustee may unilaterally terminate the trust relationship. The ulti- mate trustee in Indian affairs is the United States Congress and it can establish or redefine the existence and scope o.f the Federal trust responsibility and even unilaterallj^ dissolve the relationship^ if it chooses. This power stems from the plenary power of Congress in In- dian affairs. This power and the Indian reaction to its exercise is discussed in chapter 11. Congress has designated a principal agent for carrying out the trust, i.e., the Department of the Interior. That agent ^« E.p.. United States v. Mason, 412 U.S. S91 (1973) ; Manchester Band of Porno Indians, Inc. V. United States, 363 F. Supp. 1238 (N.D. Cal. 1973). ^- Seminole Nation v. United States, 316 U.S. 286. 296 (1942). ■^^ Manchester Band of Porno Indians, Inc. v. United States, 363 F. Supp. 1238 (N.D. Cal. 1973). For further elaboration on this standard of performance, see 5 A. Scott, Law of Trusts 1298 (3d ed. 1967). w .') A. Scott. Law of Trusts 1277-1299 (3d ed. 1967). 2« 7- -• <'^- 1- '"i"*^ sPe ''^- ^- part A-3 of this report, note 3^s»/^7 ^ ^^^^ ' ' '^^^''^^^ ' ^IPRC, Task Force No. 3 ; R. Chambers, 27 (yee generally. F. Cohen, Handbook of Federal Indian Law. 171-172 (1941) and ca=;es citeci therein. 28 See generally, AIPRC, Task Force Xo. 9, part 6, ch. 10. 130 resources, and mangement of trust funds of "federally recognized" tribes.^^ There is little reason to so restrict the trust doctrine other than administrative convenience. There is legal authority that the United States trust duty is much broader. =^° The purpose behind the trust is and always has been to insure the survival and welfare of Indian tribes and people. This includes an obligation to provide those services required to protect and enhance Indian lands, resources, and self-government, and also includes those economic and social pro- grams which are necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non- Indian society. This duty has long been recognized implicitly by Congress in numerous acts, including the Snyder Act of 1921,^^ the Indian Eeorganization Act of 1934,^^'' the Jolmson-O'Malley Act of 1934,22 ti^e Native American Programs Act of 1974,^^ the Indian Self- Determination and Education Assistance Act of 1975,^* and the Indian Health Care Improvement Act of 1976.^^ In fact as early as 1818 Congress established a general civilization fund to aid Indians in achieving self-sufficiency within the non-Indian social and economic structure.^^ The Commission has found that Indian people are unanimous and consistent in their own view of the scope of the trust responsibility. Invariably they perceive the concept to symbolize the honor and good faith which historically the United States has always professed in their dealing with the Indian tribes. Indian people have not drawn sharp legal distinctions between services and custody of physical as- sets in their understanding of the application of the trust relationship. Consequently, at its core, the trust relationship has meant to them the guarantee of the U.S. that solemn promises of Federal protection for lands and people would be kept. The fact that the United States has been notoriously unfaithful in observing its commitments to the In- dian tribes is not seen as lessening the continuing responsibility. In this context the range of social services which the United States has traditionally provided and for which successive Congresses have ap- propriated funds (for example, see the above list of statutes) have al- ways been seen as an integral part of the Federal-Indian relationship. Notwithstanding this common perception of the scope of the trust responsibility, an analysis of the implications of its meaning on a level of practical application logically forces us to make a broad distinction between the protection of physical trust assets and the commitment to provide human services. This distinction is particularly relevant in view of the Commission recommendations articulating a standard of care, remedies for breach of tnist, and the necessity for proce- dural protections to accompany condemnation of trust interests. As the above analysis makes clear, these principles have evolved in the -T.S. Congress. House Comm. on Appropriations, Subcomm. on the Dept. of Interior and Rplated Agencies. Hearinss on BIA Appropriations, 102 et seq. (94th Conir.. 1st spss., 1976) : see also U.S. Dept. of Interior, Office of the Secretary, Letter from Acting Secre- tary Kent Frizzell to David Getches. Oct. 27, 19T6. 30 ,S'ee AIPRC. Task Force No. 1 ; Task Force No. 8 ; also R. Chambers, note 2, supra. ^ 25 U.S.C. sec. 13. M" 25 TI.S.C. sec. 461 et seq. 3= 25 U.S.C. sec. 452. 33 8S Stat. 2323. 8* 88 Stat. 2203. 3s P.L. 94-437. 38 See ch. 8, this report. 131 coiirse of judicial anal^-sis of the trust responsibility, which have found the common law principles of trust to be an appropriate frame of reference. Essentially, the courts have found that trusteeship with- out standards, remedies, or procedural protections borders on beingr meaninofless and unenforceable. It is important to note that these court decisions have all arisen in the context of the trust responsibility as applied to physical assets. The principles of law derived from com- mon law trust doctrine are readily applicable to the trust relationship as it affects the United States' stewardship of Indian trust assets. The identification and formulation of standards of care, remedial devices, and procedural protections by the Commission have only followed this development in the law as found in Federal iudicial decisions. The trust relationship as applied to the broader concepts of Iniman services and supportive Indian tribal government calls for a different, thou.<^h parallel, line of reasoning. That is, the principles of law so readily applicable in reference to the intansrible responsibilities of pro- vidinsr services and respecting rijffht of self-government. It is a matter of a difference in form, which calls for a dilfference in application. Tlie Federal respousibilitv to provide services and to suj^port the right of self-government is no less of a trust resDonsibility simplv because the manner of application is distin Indians living on reservations. The last sentence merely reaffirms the rights of Indians to those services offered to all United States citizens and to those offered specifically to American Indians. Eligibility for receipt of one does not preclude eligibility for receipt of the other. The fourth paragraph (A4) emphasizes that Indian lands are not public lands. They are privately owned lands held in trust by the United States for Indians. It should be unnecessary to state this in a congressional policy except that it is a legal fact which sometimes still is ndsunderstood. For example, as recently as 1972, the U.S. Court of Appeals for the Tenth Circuit identified Indian trust lands as "public lands," thereby subjecting them to more stringent environmental! protection rules than other private lands.*^ The recommendation of an Indian rights impact statement con-- tained in section B below follows from two premises: (1) Federal agencies have in the past and today continue to violate Indian trust rights; and (2) a procedure should be established which would pre- vent such violations without consent of the Indians or specific authori- zation of Congress. The need for such an Indian rights impact state- ment is fully discussed in the final report of Task Force Number Nine, pages 62-70. Among other specific instances listed is the conflict be- tween the Seneca Indian Nation and the Army Corps of Engineers in which the tribe lost in excess of 80 percent of its reservation without specific congressional authorization. Under our proposal, prior to taking any action which may abrogate ■ or otherwise infringe on Indian trust ris^hts. Federal agencies must *^ Davis V. Morton; 469 F. 2d 593 (10th cir., 1972). 135 first seek consent from the affected Indians and obtain authorization from Congress. Under part 2 of section B below Congress will not authorize such action absent Indian consent except under "extraordi- nary circumstances whore a compelling national interest requires'Mt. In anj^ case, the congressional authorization must identify the specific Indian rights being affected and that it is the intent of Congress to ''abrogate or infringe such rights." It is implied in this procedure that the appropriatelndians and Federal agencies will receive copies of the impact statement and be permitted to comment on its contents. Because of the conflict of interest problems, frequent refusal by the Department of the Interior and the Department of Justice to represent tribes or individuals involved in trust issues, and limited resources of the tribes to employ their own attorneys, Indians are often unable to secure adequate legal representation to protect or enforce their rights under the Federal trust responsibility.** And even when they are. able to litigate, the enormous expense involved depletes tribal resources and hinders delivery of needed services. The recommenda- tions in section C below are intended to alleviate this situation by creating a new office Avith litigation authority and providing for government payment of fees for private attorneys representing Indians in trust matters. Nothing in this section, however, affects the right of tribes to engage counsel on their own behalf. Section C recommends that within a new Department of Indian Affairs, which is recfinimended elsewliere in tliis report (see chapter six), there be established an Office of Trust Riglits Protection. It may be part of a general counsers office in tlie department or it may be a separate entity. In either location, it would assume a role as the pri- mary legal aclvocate in the Federal Government for protecting and enforcing Indian riglits pursuant to the Federal trust responsibility. With Indian consent, it would provide legal guidance in trust matters, initiate and participate in administrative proceedings affecting Indian ti'Ufit rights and prepare and try Indian cases in Federal and State courts. The Department of Justice would have a secondary duty to handle such matters upon request of the Office. Upon establishment of the Office, the function of the Division of Indian Affairs of the Solicitor's Office in the Department of Interior would be transferred to the new office. This approach to relieving the conflict of interest problems so troublesome with the present structure for providing legal assistance to Indians presupposes the creation of a Department of Indian Affairs. In the absence of such action, it is the recommendation of this Com- mission that some entity like the proposed Indian Trust Counsel Authority ^^ be established. The difficulty with the Trust Counsel concept as proposed is that : (1) it does not go far enough to diminish conflict of interest situa- tions; (2) the distribution of responsibility between the Authority, the Department of the Interior and the Department of Justice was I'onfusing; (3) the proposed staff of the Authoritv was too limited to adequately handle the potential caseload; and (4) because of the ** For an excellent discussion of specific cases of inadequate lesrnl representation f [ndians and the reasons for it. see pt. VI. cli. 9 of the Final Report of Task Force No 9 *-^ See Hearinjrs on the Proposed Indian Trust Counsel Authority, note 4 supra 136 absence of field offices, comminiication between Indians seeking legal assistance and the Authority would be cumbersome. Even still, the idea \\^ould lead to an improvement of the current situation in that Indians would have at least some alternative besides the Department of Justice with its inherent conflict of interest. The advantage of establishing a legal office with litigation authori- zation in an independent Indian agency is that it would have readily available the expertise and manpower of the parent agency; it could place legal staff in the various field offices of the agency thus facilitat- ing communication with Indian clients; and it would lessen the risk of severe reductions in appropriations which would drastically reduce the effectiveness of the legal office as an advocate of Indian trust rights. A recent Supreme Court decision strengthened the general rule in Federal courts that the prevailing party in litigation is not entitled to an award of attorney's fees by the pourt in the absence of statutory authorization or other exception.*^ This rule, however, is subject to revision or exception by Congress and numerous current statutes pro- vide for such exceptions.*^ Recommendation D. below, is intended to provide an additional exception in the case of Indians involved in litigation. For an excellent and thorough discussion of the need for such legislation and the consequences of the current practice, see part 6 of the final report of Task Force No. Nine. Recommendatioxs To clarify and hnpro'ce the administration of the Federal trust re- sponsibility to ATnerican Indians^ the CoTnmission recommends that: Congress reaffirm and direct all executive agencies to administer the trust responsibility consistent with tlie following principles and procedures. A. STATEMENT OF POLICY In carrying out its trust obligations to American Indians (includ- ing Alaskan Natives) it shall be the policy of the United States to rec- ognize and act consistent with these principles of law^ : 1. The trust responsibility to American Indians is an established legal obligation which requires the United States to protect and en- hance Indian trust resources and tribal self-government and to pro- vide economic and social programs necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non-Indian society. In matters involving trust resources, the United States be held to the highest standards of care and good faith consistent with the prin- ciples of common law trust. Legal and equitable remedies be available in Federal courts for breach of standards. 2. Although the trust responsibility is a legally binding duty re- quired of all United States agencies and instrumentalities, and al- though Congress has the ultimate responsibility for insuring that the <" Ahiexkn Pipeline Service Co. v. Wilderness Society, 421 U.S. 240. ^' For a list of such statutes, see footnote 9, part VI, ch. 9 of the Final Report of Task Force No. 9. 137 duty is met. there be in the executive branch one inde])endcnt prime agent charged with the principal responsibilit}- for faithfulh' admin- istering the trust. 3. The trust responsibility extends through the tribe to the Indian member, whether (m or off the reservation. His or her rights pursuant to this United States obligation are not affected by services which he/she may be eligible to receive on the same basis as other United States citizens or Avhich the tribe may be eligible to receive on the same basis as any other governmental unit. 4. The United States holds legal title to Indian trust property, but full equitable title rests with the Indian owners. B. IXDIAX TKUST RIGHTS IMPACT STATE:MEXT Limitation Upon Agency Action Before any agency takes action which may abrogate or in any way infringe any Indian treaty rights, or nontreaty rights protected by the trust responsibility, it prepare and submit to the appropriate com- mittee in both Houses of Congress an Indian trust rights impact state- ment, to include, but not be limited to. the following information: 1. Nature of the proposed action. 2. Xature of the Indian rights which may be abrogated or in any way infringed upon by the proposed action. 3. Whether consent of the affected Indians has been sought and o]?- tained. If such consent has not been obtained, then an explanation shall be given of the extraordinary circumstances where a compelling- national interest requires such action without Indian consent. 4. If the proposed action involves taking or otherwise infringing Indian trust lands, there must be notification whether or not lieu lands have been offered to the aff'ected Indian or Indians. Action hy Congress Required When considering legislation which may have an adverse impact upon treaty or nontreaty rights of Indians the Congress adhere to the following principles. The United States not abrogate or in any Avay infringe any treaty rights, or nontreaty rights that are protected by the trust responsibil- ity, without first seeking to obtain the consent of the affected Indian or Indians. Such rights not be abrogated or infringed without sucli con- sent except under extraordinary circumstances where a compelling na- tional interest requires otlierwise. With or without Indian consent,, such rights not be abrogated or infringed upon in any wav except pursuant to a congressional act which identifies the specific affected Indian rights and which states that it is the intent of Congress to abrogate or infringe such rights. C. LEGAL REPRESEXTATIOX FOR IXDIAXS To diminish the conflict of interest prevalent when the Department of Justice and the Department of the Interior provide services to In- dians, to provide for more efficient rendering of legal services to In- 9J-18.J— 77 10 138 dians, and to otherwise improve the representation which Indians re- ceive for protection and enforcement of their trust rights, Congress enact the following legislation : 1. There be established within a newl}' created Department of In- dian Affairs (see recommendation in chapter six) an Office of Trust Rights Protection. Its duties shall include, but not be limited to, cata- lognig and assisting in the management of Iiidian trust property, ad- vising Indians and Indian tribes in legal matters and representing them in all litigation aiid administrative proceedings involving In- dian trust rights. In appropriate field offices of the Department of In- dian Affairs there be a legal and jnofessional sralf under the super- vision of the Office of Trust Rights Protection. 2. The Office of Trust Rights Protection be authorized to render all appropriate legal services which now are rendered by the Department of Justice and the Department of the Interior, provided that the Indian client agrees to accept representation and services. o. The Office of Trust Rights Protection have the primary responsi- bility of the Federal Government for protecting, enforcing, and en- hancing Indian trust rights, but this shall not relieve any Federal agency from the duty to recognize and act consistent with the Federal trust responsibility for Indians. 4. The Office of Trust Rights Protection act in the name of the United States as trustee for Indians in all legal matters and proceed- ings, except those whicJi it refers to the Department of Justice for litigation. It have the discretion to so refer those matters for which it does not have the staff, resources, or expertise to handle. The Office also have the discretion and authority to engage private legal counsel to represent Indians, tribes or groups in trust matters. In such cases, the Ignited States Government may pay all fees and costs and the wishes of the Indian clients shall be complied with, as much as possible, in the selection of counsel. Where there is conflict of interest between an individual Indian and a tribe involving trust issues, the Office rep- resent the tribe and it have the discretion to engage private counsel to represent the individual at Government expense. 5. The United States waive sovereign immunity for all actions in- volving Indian trust matters brought by the Office of Trust Rights Protection or private counsel engaged by it to represent Indians. 6. The Office be authorized to obtain whatever information, services, and other assistance deemed necessary from other Federal agencies^ and such agencies be obligated to comply with such requests. D. AUTHORIZATION FOR AWARD OF ATTORNEY FEES AXD OTHER LITIGATION COSTS Federal courts be authorized to award attorneys' fees and expenses and all reasonable costs incident to litigation, including but not limited to expert witness fees, in cases in which an Indian or Indian tribe or group engages private attorneys and is successful in protecting or en- forcing treaty, trust, or other rights protected by Federal statute Fed- eral courts be given the discretion to order that" all such fees and co=ts be paid by the losing party or bv the United States Government CHAPTER FIVE TRIBAL GOVERNMENT Simply put, the question is whether tribes are going to be permanent, on-going political institutions exercising the basic powers of local government or whether they are to be transient bodies relegated to mere "service delivery vehicles" for federal assistance programs ; mere "fedei'al instrumentalities" for the control of the social behavior of their own tribal membership pending their ultimate assimilation into the dominant society which surrounds them. This is the funda- mental question for the future of Indian tribes and the fundamental question which the Congress must resolve in the formulation of the future course of Federal-Indian policy. (139) CONTENTS Page Fundamental elements of tribal government 143 A. Historical overview and jurisdiction generallj' 143 Historical development of tribal government 144 Earl}- history 145 Westward removal and reservation? 147 Allotment and assimilation period 148 Indian Reorganization Act and contemporary legal assump- tions 149 Post-Reorganization Act 150 Summary 153 Conclusions 154 Recommendations 154 B. Sources of tribal power 154 Sovereignty 154 Powers stemming from land ownership 156 The Federal instrumentality concept versus tribal sovereignty. 158 Recommendations 160 ■C. Tribal justice systems 160 Overview 160 Background 161 Current justice systems 163 Capabilities 165 Training and funding 166 Recomnaendations 167 D. Taxation 168 Introduction 168 Narrative 170 Federal taxation 170 Federal tax and Indian tribes 170 Federal taxation of indi\'idual Indians 171 State taxation 173 State taxation of non-Indians on reservations 175 State taxation of Indians and Indian tribes off-reservation — 176 Current developments in State taxation of reservation Indians. 177 Tribal taxation 178 Recommendations ISl E. Hunting, fishing, trapping, and gathering rights 182 On-reservation rights and regulation 182 Off-reservation rights and regulations: Limits of State authority 1S4 Tribal authority 184 Need for Federal involvement 185 Summary 186 Recommendations 187 Federal constraints on tribal government 187 A. The Indian Reorganization Act of 1934 187 Recommendations 192 B. The assertion and implementation of Federal criminal jurisdiction. 194 Federal criminal statutes 194 INIajor Crimes Act 195 JSIajor crimes enforcement 196 General and Assimilative Crimes Act 197 Recommendations 198 (141) 142 Federal constraints on tribal governments — Continued Pag© C. Public Law 280 199 Overview 199 Legislative history of Public Law 280 199 Status of Public Law 280 implementation 200 Controversies concerning the scope of State jurisdiction 203 Indian opinion of Public Law 280 204 Non-Indian opinion 206 Recommendations 208 D. The 1968 Civil Rights Act: Immunity, judicial review, and mutuality 210 Recommendations 214 Status of tribal governments and the delivery of services 215 A. The Federal domestic assistance program delivery sj^stem 215 Overview 215 Background 216 Status of tribal government within the Federal domestic assist- ance program delivery system 217 Inequities of population formula grant guidelines 218 Federal agency administrative requirements 219 Coordination among Federal agencies responsible for provid- ing Federal domestic assistance programs 219 Joint Funding Simplification Act 220 Recommendations 221 B. Funding of tribal governments and Public Law 93-638 221 Overview ^ 221 Background — ^Ability of tribes to finance operations 222 Strengthening tribal governments: AIPRC objective 222 Inability to support leadership positions 222 Obstacles in grant regulations 223 Criteria for determining service populations 224 Definitions of allowable costs for grants 224 Litigation costs as a burden on tribal governments 224 Summary 225 Recommendations 225 i CHAPTEK FIVE TRIBAL GOVERNMENT Fundamental Elements of Tribal Government A. historical ovER^^EW and jurisdiction generally Federal policy toward tribal government should be directed toward affirming and encouraging the development of tribal governments into strong, viable, permanent governmental institutions. Litigation surrounding the jurisdictional conflicts between States and tribes may suggest the desirability of a legislative solution. But it is the consensus of this Commission that any attempt to impose a broad legislative solution at this time would be ill-advised and premature. The Commission hnds that the growth and development of tribal government into fully functioning governments necessarily encom- passes the exercise of tribal jurisdiction over non-Indian people and property within reservation boundaries. There are limits, of course, and tribes must operate under the assumption that the jurisdiction they assert over non-Indians must bear a reasonable relationship to legitimate tribal interests such as protection of trust resources, mainte- nance of law and order, delivery of services, and protection of tribal government generally. Accordingly, the Commission finds that the following three prin- ciples should serve as the basis for the Federal-tribal-State relation- ship. Federal policy concerning tribal sovereignty must be premised on an assumption that when confronted with options, the Indian people will act intelligently, responsibly, and fairly when exercising powers of self-government. The suspicion and resentment which presently characterize the relations between the tribes and States must be eliminated within the context of respect and acceptance of the institu- tions of tribal government and Federal laws must be designed to foster this result. With the increased power and responsibility of tribal governments, some Federal review authority will be imposed. The Federal policy must accept the position that the supervisory authority it asserts must be limited and flexible. This authority is now encompassed in title II of the 1968 Civil Rights Act (Indian Civil Rights Act). The ultimate objective of Federal-Indian policj^^ must be directed toward aiding the tribes in achievement of fully functioning govern- ments exercising authority within the boundaries of the respective reservations. This autliority would include the power to adjudicate civil and criminal matters, to regulate land use, to regulate natural resources such as fish and game and water rights, to issue business licenses, to impose taxes, and to do any and all of those things which all local governments within the United States are presently doing. (143) 144 nistorical Development of Tribal Government Tribal government today is at a crossroads of history. Simply put, the question is whether tribes are going to be permanent, on-going political institutions exercising the basic powers of local government or whether they are to be transient bodies relegated to mere "service •delivery vehicles" for Federal assistance programs; mere "Federal instrumentalities" for the control of the social behavior of their own tribal membership pending their ultimate assimilation into the domi- nant society which surrounds them. This is the fundamental question for the future of Indian tribes and the fimdamental question which the Congress must resolve in the formulation of the future course ■of Federal-Indian policy. Today we find basic questions being asked about the definition of terms such as "Indian", "tribe" and "reservation". We find expressions of concern over the fact that tribes are "sovereign", and protests over the fact that tribes are beginning to exercise governmental authority over non-Indians. There is even concern over the fact that not all tribes are organized on the same democratic principles that have gov- erned the formation of the Anglo-American political structures. There are complaints that one sovereign cannot exist within the boundaries of another sovereign — an argument advanced by the State of Georgia in the 18th century. This argument led directly to the west- ward removal policies of the 1830's with the agreement set forth in treaties that the newly established reservations in the West should never be included within the boundaries of any State or territory. The argument, even today, surfaces in occasional State court decisions de- spite repeated Supreme Court decisions, since 1834 to the present, re- affirming the sovereignty of Indian tribes. There are also complaints that people should not be subjected to the authority of government in which they are not allowed to partici- pate — a complaint with a solid patriotic ring but one which does not reach the core of the problem of government in Indian country; it overlooks the history of Federal poiicy which opened the Indian lands for non-Indian settlement against the wishes of the Indian community and in violation of the treaty agreements. The arginnent also brushes aside the moral and legal obligations of the United States to protect and foster the development of tribal government. Both of these argu- ments if decided in a manner favorable to the non-Indian complain- ants would inevitably result in the reduction of tribal government to a point where it could truly be said that Indian tribes are mere associa- tions of private property owners having no more authority than any voluntary association.^ The position in which tribes find themselves today is a direct out- growth of continual conflict and vascillation of Federal-Indian policy and the failure of the United States to honor the numerous commit- ments made to Indian tribes in treaty negotiations. These policies are discussed at length in the historical chapters of this report. They are also treated at some length in the report of Task Force No. Nine (part III) . The evolution of the legislative and administrative policies of the Federal Government are given detailed attention in chapters 2 and 4 of 1 Such a findins was made by the 10th circuit in U.S. v. Mazurie, 487. F. 2d 14 (10th cir., 1973). It was rejected by a unanimous Supreme Court on appeal 417 U.S. 544 (1975). 145 the Handbook of Federal Indian Law (Cohen, 1940) prepared under the auspices of the Department of the Interior. Nevertheless, to place this chapter on tribal government in perspective, it is necessary again to review summarily the history of Federal-Indian relations and the role of tribal government in this evolutionary process. Early History The legal basis for the concept of tribal sovereignty and of Indian country on Indian reservations springs from treaty negotiations be- tween the United States and the various Indian tribes on our Western frontier. The primary cause of war between the European settlers and the Indian tribes centered on the continual encroachment of the non- Indian populace upon lands claimed by the Indian people. At the time the process of treaty negotiation and purchase of land was instituted, the Indian tribes constituted formidable forces with whom the great powers such as England, France, Spain, and the United States sought formal alliances in their continuing conflicts among themselves over territorial claims in North America. There were three primary benefits sought by the United States in these treaty negotiations: (1) acquisition of lands for the burgeoning population of non-Indian settlers; (2) loyalty of the tribes to the United States as opposed to the other European powers; and (3) peace on the frontiers by having clearly defined boundaries of lands claimed by the Indian tribes. The primary benefits which the Indian tribes sought were : (1) a recognition by the United States of their exclusive right to the use and occupancy o,f a well-defined area; and (2) a com- mitment from the United States to defend and protect their rights within that area from non-Indian encroachment.^ The thrust of these treaties was that the tribes were expected to maintain order among their subjects to prevent depredations against non-Indians and were obligated to turn over to the United States for punishment bad men among them who committed wrongs against non- Indians. The United States, for its part, was expected to maintain order among its subjects and punish non-Indians for wrongs committed against Indians. The negotiations and the agreements were entered into as one sovereign nation to another. The principles underlying this basic relationship were described by Secretary of War Henry Knox to President George Washington in a report to the President dated July 7, 1789, evaluating the military situation on the frontiers and recommending adoption of the above course of action as the most feasible, the least expensive and the most honorable course of action for the United States in its dealing with the Indian people.^ Legislation through 1834 was premised on the policy positions laid down in that report.* For the most part, the Indians kept their end of the bargain. It goes without saying that for the most part, the United States did not keep its end of the agreements. - Many excellent books have been written on the subject of early Indian relations. Two of note are "American Indians Policy for the Formative Years" by F. Prucha (Harvard Univ. Press. 1962') and "The Invasion of America — Indians, Colonialism, and the Cant of Con- quest" by Francis Jennings (Univ. of N.C. Press, 1975). = American State Papers, Indian Affairs, vol. 1. pp. .")2-53. * Act of June SO, 1834, ch. 161, 4 Stat. 729. See F. Cohen, Handbook of Federal Indian Law (1940 ed), ch. 4. 146 Two basic concepts emerged out of this course of dealing: (1) that while the United States claimed ultimate sovereignty over all lands within its territorial limits, the Indian people had ownership interests in the lands under their control, that this land was held in common ownership of the tribe, and that this land could only be acquired from or taken from the tribes by purchase or conquest; and (2) a recognition that Indian tribes were sovereign governments — a recognition that the tribal government, the tribal leaders, had the capacity and the au- thority to impose rules or laws to control the actions of individuals, particularly Indian people, within the boundaries of the lands under their jurisdiction, and a recognition that those Indian governments or leaders had a right and power to convey title to the property under their control. These basic conceptions received judicial recognition in three land- mark Supreme Court decisions.^ The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with tlie single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the par- ticular region claimed; and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term "nation", so generally applied to them, means, "a people distinct from others". The Constitution by declaring treaties already made, as well as those to be made, to the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among tho.se powers who are capable of maliing treaties. ******* The Cherolvce nation, then, is a distinct community, occupying its own terri- tory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia, have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is. by our Constitution and laws, vested in the government of the United States.' In 1830, Congress passed the Westward Eemoval Act ^ authorizing the President to negotiate with Indian tribes for their removal west- ward. Despite passage of this Act, it is clear that Congress shared the perceptions of Justice Marshall with respect to the treaty obligations owed the Indian tribes and recognized the inherent governmental au- thority of the tribes within Indian country. The Final Indian Trade and Intercourse Act was passed in 1834.^ Section 25 of that Act (what is now known as the General Crimes Act codified as 18 U.S.C. 1152) extended to the Indian country the Federal criminal laws which were applicable within federal enclaves under the sole and exclusive juris- diction of the United States. In issuing its report on that legislation, the House Committee on Indian Aiiairs stated : It will be seen that we cannot, consistently with the provision of some of our treaties, and of the territorial act. extend our criminal laws to offenses com- mitted l)y or against Indians, of which the tribes have exclusive jurisdiction; and it is rather of courtesy than of right that we undertake to punish crimes committed in that territory by and against our own citizens. And this provision is ^Johnxon v. McTvtoah, 21 U.S. (Wheat) 543 (182.3) ; Cherokee "Nation v. Georgia. 30 U.S. (5 Pet.) 1 (1.S31) ; Worce'ttrrv. Georgia, 31 U.S. (6Pet.) 515 (1832). « 31 U.S. (6 Pet.) at 558. 560, 561. T Aet of Mnv 28. 1830, ch. 148, 4 Stat. 411. 8 Aet of June 30, 1834, ch. 148, 4 Stat. 411. 147 retained principally on the ground that it may be unsafe to trust to Indian law in the early stages of their Government. It is not perceived that we can with any justice or propriety extend our laws to offenses committed by Indians against Indians, at any place within their own limits.' It has been contended that the extension of Federal criminal law to the Indian country by section 25 of the Final Indian Trade and Intercourse Act ousted or preempted the jurisdiction of the tribes. This contention has been rejected by the courts.^" At the time this law was enacted, treaties with tribes commonly provided that the tribes turn over "bad metf' among them for punishment by the United States. This was in keeping with Secretary Knox's policy of placing the United States between the Indian tribes and the non-Indian people to act as a buffer. It would appear that this section should be read as an effort by the United States to comply with its treaty commitments to the tribes to punish offenses committed by non-Indians against Indians. A companion bill to the Final Indian Trade and Intercourse Act would have provided for the establishment of an Indian State in the West. One feature of this bill is that it would have provided for tribal assumption of the enforcement of the laws set forth in the Final In- dian Trade and Intercourse Act and enforce them in their own tribu- nals. In fact, the only restriction of the penal power of the tribe would have been with respect to the death penalty which would have been subject to review by an appointed Governor prior to execution.^^ It appears the basic concept of an Indian State was agreeable to the leg- islators, but the bill was opposed for other reasons and was not en- acted. Later bills were also introduced but were resisted by the In- dian tribes who considered such organization as a weakening of their own inherent authority .^^ Westward Removal and Reservations It has already been noted that the argument of the State of Georgia for extinguishment of the Indian title to lands and the abolition of tribal government within her boundaries was premised on the theme that it was not possible for one sovereign to exist within the bound- aries of another sovereign. To preclude the repetition of any such claims in the future, the treaties negotiated with the tribes removed westward specifically provided that the lands reserved to them in the treaties should never be included within the bounds of any State or territory. This provision became "boiler plate" language included in many of the treaties negotiated with Indian tribes over the next years. It also led directly to the inclusion of "disclaimer" clauses which ap- pear in the territorial and State enabling Acts and constitutions.^' » House Report No. 474, 23d Cong., 1st sess.. June 30, 1834. p. 13. 1" Oliphant v. Schlie, No. 74-2154 (9th cir., decided Aug. 24, 1976). " House Report No. 474, 2.Sd Cong., 1st sess., .June 20, 1834. ^ For an excellent treatise on the numerous bills proposed on this subject nnd the Indian resistance to them, see "The Formation of the State of Oklahoma" by Roy Glttinger (Univ of Oklahoma Press, 1939). 1" *'ee Rev. Stat.s. »1839 cited in vol. I, Kappler's Affairs, Laws and Treaties p 3 and the Act of .Tan. 29. 1861 (12 Stat. 126) admitting the State of Kansas into the'Union in which it is provided that the lands reserved to the tribes by treaty should not be included Within the territorial limits or jurisdiction of the State until the tribes assented to such inclusion. These disclaimer clauses and the evolution of State jurisdiction within Indian reservations is examined in an article entitled "Development of Tripartite Jurisdiction in /?«i.^.'^ Country" by the Indian Civil Rights Task Force, vol. 22, No. 3 Kansas Law Review, (19(4 ed.) pp. 351-385. 148 Despite the apparent respect which Congress, the Executive, and the courts manifested in this period toward the political and leo^al rights of the Indian tribes and nations, the relative power of the United States and the growing requirements for more and more land foreshadowed the Indian tragedy over the next 40 years. The massive- influx of European immigrants, the gold rush to California, the devel- opment of a rail system capable of transporting the products of the West to the markets of the East doomed the Indian people to a reser- vation system imposed through military force. This upheaval and its social consequences are well developed in the historical chapter of this report. One of the principal products of this period from the mid-1830's through the 1870's was the decline of the traditional tribal govern- ments. This was j^articularly true for the plains tribes and the war- like tribes whose traditional way of life was drastically altered, who- fell under the most direct military rule, and who were subjected to the most oppressive of regulations. It was probably less true of the non- nomadic tribes who remained in their traditional grounds and con- tinued to survive through the same enterprises and the same cultural settings which had always sustained them. And it was particularly not true for the Five Civilized Tribes situated in Indian Territory (now eastern Oklahoma) who had tightly drawn treaties with the- United States and whose governments and economies were similar tO' those of the States and territories, and of the Pueblos who appear to have been out of the mainstream of Indian administration at this time. Allotment and AssbnUation Period By the end of the 19th century, Federal policy flowing from the Dawes Act of 1887 dictated that the solution to the 'Tndian problem" required that Indian reservations be broken up, that the communal holdings of the Indians be individualized into allotments in severalty,- and that the governments of the tribes l)e terminated. For most Indian tribes, this policy was pursued through the land allotment process and through the overlay of administrative rules and regulations designed to stamp out the Indian way of life. The tribes in the Indian Territory presented a different problem. Their treaties with the United States were explicit, their governments and their economies were strong, and their reservation or national boundaries adjoined each other so it was not possible to simply "absorb" them within the boundaries of a State. The solution for these tribes lav in specific legislation. In 1898, Con- gress enacted the Curtis Act " stripping those tribes of most of their governmental powers, and in 1906 it enacted further legislation^^ to provide for the final disposition of the affairs of those tribes. It is ironic that this period saw the demise of the strongest, most sophisticated Indian police and judicial systems, i.e., that of the Five Civilized Tribes, and also witnessed the birth of the tribal court sys- tem—originally an administrative device of the Bureau of Indian Affairs whose purpose at the time of its establishment was to control the activities of Indians within their reservations and aid in the sup- pression of their culture, but which has since been taken over by the " Act of June 28, 1898, ch. 517, 30 Stat 495. . - IB Act of Apr. 26, 1906, ch. 1876, 34 Stat 137. 149 tribes and now represents one of the most important manifestations of their sovereign power. Indian Reorganisation Act and Contemporary Legal Assumptions In the period following the near termination of the Five Civilized Tribes, tribal governments lay relatively dormant. It was not until 1934 with the passage of the Indian Keorganization Act ^^ that tribal government received any encouragement from the Federal authorities to reassert any governmental functions. The purpose of this Act, and its companion, the Oklahoma Indian Welfare Act of 1936, was to put an end to the allotment era ; to restore to the Indian people an eco- nomically viable land base; to provide the Indian people with suffi- cient credit though a revolving loan fund that they might develop their own resources and business institutions ; to recognize the rights of the Indian people to be self-governing ; and to provide through the employment preference policy for eventual control by Indian people of the Federal agencies for protection of their resources and delivery of services to them. In October 1934, immediately following passage of the IRA, the Solicitor's Office at the Department of the Interior issued an opinion discussing at length the powers of Indian tribes.^^ This opinion exam- ined a multitude of issues including such topics as: (1) the origin of tribal authority and the rule by which its limits are determined, i.e., that except as Congress has expressly restricted or limited the internal powers of sovereignty vested in Indian tribes, such powers are still vested in the respective tribes ; (2) the right of tribes to deter- mine their own form of government; (3) the right of tribes to deter- mine their own membership, except in matters where rights to "Fed- eral" property are involved; (4) the right to control descent and dis- tribution of non-trust property; (5) powers of taxation; (6) the power to exclude nonmembers from the territory subject to the tribes' jurisdiction; (7) police power of tribes over the property and con- tracts of its members; and (8) the powers of tribes in the administra- tion of justice. Contemporary with this opinion was another in February 1935, discussing the authority of the Secretary of the Interior to issue rules and regulations applicable in Courts of Indian Offenses to govern the conduct of Indians within reservation bonndarios.^* This opinion is particularly illinninatinc;. It begins with the admission that there is no statute which vests the Secretary of the Interior with specific au- thority to ''govern the conduct of Indians on the reservations or to promote law and order thereon in any way at all." The opinion, how- ever, finds that the Secretary has the authority to promulgate rules and regulations governing the conduct of Indians because: (1) Congress lias annually appropriated money for the support of a tribal police sys- tem : (2) the practice of Secretarial promulgation of such regulation is long standing and has never been challenged; (3) that the Secretary has a general duty to assure peace and tranquillity within Indian reser- ^" Act of .Tune 18, 1934, ch. 57fi. 48 Stat. 9S4. '" Sol. Op. of Oct. 2.'), 10.':4 (.00 Interior Decisions 14) entitled Powers of Indian Tribes. " Sol. Op. of Feb. 28, 1935 (unpublished) entitled Secretary's Power to Regulate Conduct -of Indians. 150 vations; and (4) that Indian tribes have the inherent power to govern the condnct of their own members, and, due to the policies of the Fed- eral Government which weakened those governments, it became neces- sary for the Secretary to assume the exercise of those powders in tlie absence of the tribe. The contrast in the assum.ptions of the 1934 and the 1935 opinions is staggering. The first is strongly assertive of the inherent authority of the tribes; the second describes a social and governmental structure that had been brought to its knees through the conscious direction of Federal policy. The truth lies somewhere in between. Out of these opinions and out of the history of our Federal policy, a policy which specificall}^ stripped the most powerful tribal govern- ments of tlieir authority, i.e., the Five Civilized Tribes, and a policy which created administrative institutions in the name of the tribes to govern the conduct of the subjects of that bureaucracy— out of this history it is not surprising to find that the agency charged with the primary authority for the administration of Indian affairs should have conceived of the power of Indian tribes as being limited to the mem- bership of their own tribes. Post Indian Reorganization Act The modern history of tribal government can probably be traced from the date of enactment of the Indian Reorganization Act of 1934. It is the history of an effort to struggle free of bureaucratic concep- tions of limited tribal powers, a history of bureaucratic entanglement in the governmental process of the tribes, a history that saw tribes run the gamut of termination when extinction awaited the most successful,' a history that saw the policies of the United States burst forth into social service and regulatory programs, many of which overlooked the fact of tribal existence, and yet a history which despite these incredible obstacles has found a judicial reaffirmation of the most important legal concept in Indian affairs, the sovereignty of the tribe, and a his- tory which in recent years has seen the emergence of legislative pro- grams truly designed to provide for genuine tribal self-determination. It is this history which brings us to the crossroads which Indian tribes and the United States Congress confront today. The Indian Reorganization Act of 1934 and the Oklahoma Indian Welfare Act of 1936 manifested a positive attitude on the part of Congress toward Indian tribes and their development, but such out- ward manifestation was somewhat misleading. In 1937, Senators Wheeler and Frazier cosponsored a bill to repeal the 1934 Indian Re- organization Act.^^ The bill did not clear the committee. In 1943, the Senate Committee on Indian Affairs issued a "'Partial Report" call- ing for the complete dismemberment of the Bureau of Indian Affairs, distribution of trust assets to individual Indians, and transfer of re- sponsibility to the States.^" In 1952, the House Committee issued a lengthy report supplying an overview of Indian affairs which called for, among other things, termination of the trust relationship with Indian tribes over a graduated period of time and dispersal of pro- grams administered by the Bureau of Indian Affairs among other 19 S. 1736, 75th Cong., 1st sess. 20 Senate Report No. 310, 79th Congress, 1st sess. (1943). 151 Federal agencies.^^ In 1958. Congress adopted H. Con. Res. 108 ex- pressing its policy of favoring termination of the Federal relationship "with the tribes. The terminationist sentiments of Congress and the desire to get the Federal Government out of the Indian business manifested itself in the 1940's with passage of special legislation transferring jurisdiction over civil and criminal matters to specific States.-- In 1952, Public Law 83-280 '^ was enacted providing a genera] authorization and pro- viding a procedure for any and all States so desiring to extend their jurisdiction to Indian country and all Indians therein. This legislation did not require any consultation with the Indian tribes which might be affected. Throughout the 1950"s and into the early 1960's, the terminationist philosophy guided much of the Federal policy relating to Indian af- fairs. In 1953, Congress passed the Meiiominee Termination Act,^* the first of many such termination acts. But despite this terminationist bent on the part of Congress, tribal government continued to function and judicial decisions relating to powers of Indian tribes again ap- peared in the pages of the legal reporters. In a series of decisions between 1956 and 1961, it was held that In- dian tribes are sovereign entities endowed with the power to establish courts and pass laws governing the conduct of their members ; -^ that tribes have the power to impose taxes upon non-Indians using tribal property, a power free of the Fifth Amendment restraints applicable to non-Indian governments ; -^ that tribes could enact legislation reg- ulating the use of peA^ote in religious ceremonies and that First Amend- ment restraints were not applicable to Indian governments,^^ and that in the absence of compliance with Public Law 83-280, the courts of a State could not assert civil jurisdiction over an Indian for a transac-. tion with a non-Indian which occurred within the boundaries of a reservation since such an assertion would constitute an infringement upon the rights of self-government.^^ By the early 1960's. the concept of termination was in disrepute and was abandoned. For the first time, general Federal legislation relating to domestic assistance programs began to include Indian tribes and Indian reservations within their framework.-^ The number of Federal agencies involved in Indian affairs proliferated and through grants and contracts moneys became available to tribes which enablecl them to devote substantially more time and attention to their governmental affairs.^" The question of tribal government and the relationship with State and Federal governments also came under congressional scrutiny. In 1961, the Senate Subcommittee on Constitutional Rights focused its attention on this subject, and in 1964 issued a report setting forth =^ House Reports, vol. 8, No. 2503, 82d Congress, 2d sess., entitled "Investigation of the Bur°nu of Indian AfpTirs." 22 Report of Task Force No. 4, pp. 8-9. =3 Public Law 83-280, 83d Cong., 1st sess. (1953), 67 Stat. 588, codified as IS U.S.C. 1162 and 2S U.S.C. 1360. =* .\ct of June 17, 1954, 68 Stat. 250. ^ Iron Crow v. OqlaJa Sioux Trihe, 231 F. 2d 80 (Sth cir., 1956). -« Bnrta v. OqlaJa Slioiir Tribe. 259 F. 2d 553 (8th cir.. 1058). ^ Xatwe American Church v. Navajo Triijal Council, 272 F. 2d 131 (10th cir., 1959). -'' Williams v. Lee, 358 U.S. 217 (1959). 2» Report of Tasic Force No. 9. part III, pp. 15-16; Schifter, "Trends in Federal Indian Administration". S. Dak. Law Rev., vol. XV (1970K * Task Force No. 2 discusses funding sources of tribal goyernments at length. 152 findings critic 163 U.S. 376 (1896). . « 241 U.S. 602 (1961). ^ 62 231 F. 2d 89 (8th dr.. 1956). ^ 272 F. 2d 131 (10th dr., 1959). "358 U.S. 217 (19r.9). ^Mll U.S. 164 (1973). "419 U.S. 544 (1975). 156 tribe such a regulatory power but stated in dicta tliat it appeared tliat the tribe could exercise such regulatory power without benefit of Federal law on the basis of its own inherent sovereignty. From these decisions, it simply cannot be questioned that the power of a tribe springs from its own original, inherent sovereignty — a power which predates the coming of the European to this continent, predates the signing of the Declaration of Independence or the adoption of the U.S. Constitution, a power which has been repeatedly affirmed and recognized in our course of dealing with Indian tribes through a treaty process, through our Federal statutes and through our judicial decisions. The only question open to discussion is the scope and extent of that power. That question will be considered in other sections of this chapter. Pollers Stemming From Land Ownership A second source of tribal power springs from the tribal ownership of their lands. Many administrative opinions and Federal court deci- sions, particularly those dealing with the power of tribes over non- Indians or Indians who are not members of the tribe, are premised on the power of the tribe to exclude persons from the reservation or territory under the jurisdiction of the tribe. This has led to a con- siderable degree of confusion, particularly in administrative opinions issued in the period immediately after passage of the Indian Eeorgani- zation Act in 1934, the result of which was to perceive limitations on tribal power which would not be present if the power were premised on "sovereignty". The earliest recognition of the power of Indian tribes to exclude non-Indians or nonmembers from their territory is found in an opinion of Attorney Wirt in 1821: So long as a tribe exists and remains in possession of its land, its title and possession are sovereign and exclusive ; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent. * * * Although the Indian title continues only during their possession, yet that pos- session has been always held sacred, and can never be disturbed but by their consent. They do not hold under the States, nor under the United States ; their title is original, sovereign, and exclusive. We treat with them as separate sovereignties ; and while an Indian nation continues to exist within its acknowl- edged limits, we have no more right to enter upon their territory, without their consent, tban we have to enter upon the territory of a foreign prince.*^ A common feature found in treaties throughout the entire treaty- making period (i.e., until 1871) is a right of safe passage for non- Indians through the Indian country coupled with a prohibition against non-Indian settlement upon such lands. The Trade and Intercourse Act of 1802 ^^ required that any non-Indian entering Indian country must have a passport. This provision was relaxed in the Trade and Intercourse Act of 1834 ^"^ but a somewhat similar provision authoriz- ing Federal officials to remove persons who w^ere not "legally" within Indian country was reenacted in 1858 *^° and was not actually removed from the book of statutes until 1934.^^ 5T1 Op. A.G. 465 (1821). 68 Act of March ,30, 1802, 2 Stat. l.-^Q. 69 Sec. 6, Act of June 30, 1S.34. 4 Stat. 729. •0 Act of .Tune 12, 18.58, 11 Stat. 329. 3.32 ; Rev. Stat. 2149 ; 25 U.S.C. 222. «i Act of Mav 21, 1934, 42 Stat. 787. See Cohen, Handbook of Federal Indian Law (1940 ed.), ch. 4, p. 73, ut. 73 and p. 76. 157 In the latter part of the 19th century, several administrative opinions and judicial decisions were rendered reflecting the blur which crept into the legal analysis of the source of tribal powers. In 1855, Attorney General Gushing issued an opinion affirming the general jurisdiction of Indian tribes over all persons and things within the territorial limits : The United States assure to the Choctaw nation "the jurisdiction and govern- ment of all persons and property which may be within their limits west, * * * and secure said Choctaw nation from and against all laws except such as from time to time may be enacted in their own national councils, not inconsistent with the Constitution, treaties and laws of the United States, and except such as may be, and which have been, enacted by Congress, to the extent that Con- gress, under the Constitution, are required to exercise a legislation over Indian affairs." Can there be anything more explicit? The general rule is competency of the local jurisdiction, saving exception. Exception is to be shown. If a thing be not taken out by exception, it remains in the general rule. Here, the ques- tions of exception are, first, the universal one of the Constitution, treaties, and laws of the United States; and secondly, the special one — which being included in the universal one, it did not need to specify — of acts of Congress regulating the affairs of the Indians."^ For reasons related to treaty negotiations, the Attorney General concluded that the Choctaw Tribe did not have criminal jurisdiction over non-Indians within the Indian country but did have full and complete civil jurisdiction over all persons and things within their territory. The significance of the opinion is that it accepted as the beginning point of analysis the proposition that Indian tribes are endowed with all of the powers of any sovereign and that those powers remained except as they may have been taken away. Wliilo continuing to affirm tribal power over non-Indians, judicial decisions and administrative opinions toward the latter half of the 19th century regarding powers of the Five Civilized Tribes some- times premised this power of the tribe on previously recognized au- thority to remove or expel non-members. Thus, in Maxey v. Wright ^'^^ it was held that tribes might impose license fees upon non-Indian at- torneys for the privilege of practicing law before tribal courts, and in an opinion of the Attorney General issued in 1900,^* it was held that the tribes could impose taxes for the privilege of conducting busi- ness within their borders. This opinion and decision were premised on the power of the tribe to either deny access of nonmembers to their facilities or the power to impose conditions upon the entry of non- members into their territory. But at this same time, the Supreme Court affirmed a decision of the District of Columbia Circuit, Moms V. Hltchrock '^'' placing the tribal power of taxation of nonmembers within the tribal jurisdiction squarely on the basis of the sovereign authority of the tribe — not the power to expel or remove. See also Buster v. Wriqht,^^ and the decision of the Attorney Gen- eral in an opinion regarding the riirht of the Cherokee Nation to im- pose an export tax on hay grown by a nonmember within the limits of that nation.*'^ As stated in Morris v. Hitchcock : 82 7 OP A.G. 174. 180-lRl (1855). « 5^ S.W. (Ind. Terr., 1900). aff'd, 105 F. 1003 (CCA. 8, 1900). "* 23 Op. A.G. 21-1. 219 (1900). M24 App. D.C 565. aff'd. 194 U.S. 3S4 (19014). "«S2. S.W. 855 (Ind. Terr., 1904), aff'd, 135 F. 947 (CCA. 8, 1905), app. dlsm., 203 U.S. 590 (1906) 6' 23 Op. A.G. 528 (1900). 158 A government of this kind necessarily has the power to maintain its existence and effectiveness through the exercise of the usual power of taxation upon all property within its limits, save as may be restricted by its organic law. Any restriction in the organic law in respect of this ordinary power of taxation, and the property subject thereto, ought to appear by express provision or necessary implication.^^ These opinions were examined at length in the Solicitor's opinion of October 25, 1934 ®^ referred to in the section on sovereignty. The primary emphasis on the opinions issued immediately following the Indian Reorganization Act of 1934/° regarding powers of Indian tribes, rested on the power to condition entry onto Indian lands. Yet repeatedly, the Solicitor's Office encountered situations requiring some identifiable regulatory authority, either Federal, State, or tribal, to regulate the conduct of non-Indians or nonmembers within Indian country that could only be accounted for by finding some power in- herent in Indian tribes that arose from some source other than the simple power to expel or remove. Thus it was held that the tribes might seize stray cattle of a non-Indian which trespassed upon tribal prop- erty and sell the same at a public auction in order to cover the expenses of the tribe,''^ that the tribes might confiscate unlicensed dogs of non- Indians in furtherance of tribal police powers,^^ that tribes might seize and forfeit the fishing equipment of a non-Indian fishing within the reservation in violation of tribal laws,^^ and that a tribal court could enter a decree of divorce in a marriage between an Indian and a non- Indian.'^* Clearly, the conception that the power of a tribe was limited to its power of removal from the reservation was not adequate to the law enforcement or regulatory needs o,f government in Indian country. As previousl}^ noted, with the Iron Groio decision in 1956,'^^ the sov- ereignty of the tribe as the source of its authority was again recognized. The decisions recognizing this authority and exploring its parameters in conjunction with the persons over whom such authority extends are explored in the prior section. The Federal Instrumentality Concept Versus Tribal Sovereignty In recent years, a new concept has found its way into the decisions of the Federal courts, i.e., that tribes are an "instrumentality" holds that the tribes and their governments are the chosen instruments through which the Federal Government has elected to carry out its Indian policies. It is this theory or concept which has been employed in cases shielding tribal government and tribal members from the application of State laws which would encroach upon the rights of self-government guaranteed to the Indian people under treaties and statutes.''^ 08 24 App. D.C. 565, 593, quoted at 55 I.D. 48. "55 I.D. 14. 46-4S. ""> Act of June 18, 1934, 4S Stat. 984. »i Sol. Op. to Comm. of Ind. Affairs, Mav 13, 1941. T2 Sol. Op. to Comm. of Ind. Affairs, Feb. 17, 1939. ■73 Op. Asst Sec, Feb. 12. 1943, 58 I.D. 331, 333-34. " Memo Sol. to Comm. Ind. Affairs, Feb. 11, 1939. " Supra, note 2fi. ■"'Williams v. Lee, 358 U.S. 217 (1959) ; Ariz, ex rel. Merrill v. Turtle, 413 F. 2d 683 (lOth cir., 1968) ; McClanahan v. Ariz. State Tax Comm.. 411 U.S. 164 (1973). 159 The second theory of "federal instrumentality" holds that the tribes, particularly tribal courts, are an arm of the Federal sovereign; in other words, a federally created instrumentality. This concept has emerged in the area of criminal law, but it has grave implications for the entire Federal-Indian relationship. The concept of tribal courts as a federally established instrumen- tality first surfaced in the case of CoTlif.ov:er v. Garland^ a decision of the 9th Circuit Court of Appeals which held that a writ of habeas corpus would lie in Federal court to test a judgment of conviction in a tribal court." The judgment of this court was based on an extensive review of the history of the development of the tribal court system and its intimate involvement with the Bureau of Indian Affairs. How- ever, in holding that the tribal court was in essense a Federal instru- mentality, the 9th Circuit placed itself in direct conflict with a prior judgment of the 8th Circuit Court of Appeals entitled. Iron Croio v. Oglala Sioux Tribe^ which reviewed the same history of tribal courts of the tribes.'^ The 1968 Congress statutorily extended to all persons the right to test, by way of habeas corpus, the judgments of tribal courts in Fed- eral court proceedings.' ^ As a result of this legislation, it was no longer necessary to establish the "Federal connection" to obtain judicial re- view of tribal court judgments, Nevertheless, in 1969. the 9th Circuit reaffirmed its holding in GoUiflawer as a basis for Federal review.^" The immediate problem which arises in connection with the "Fed- eral instrumentality" doctrine is the application of the concept of double jeopardy as a constitutional bar to prosecution of offenses in both tribal and Federal courts. The issue was presented to the 8th Circuit in two separate cases in 1971 and 1972.^^ In each case, the court found other groimds for making its determination, thereby avoiding the issue. But. in the second of the two cases, U.S. v. Kills Plenty^ there was divided opinion, the dissent asserted that based on CoUijlower., tribal and Federal courts should be considered "arms of the same sovereign," thus making the doctrine of double jeopardy and/or collateral estoppel applicable as a bar to proceedings in Fed- eral court after a trial of the case in tribal court. The majority of the court noted its disagreement with the dissent in a footnote, holding that if it were to decide the issue, it would rely on its prior decision in Iron Crow. The most recent word on the subject, issued from the 9th Circuit in U.S. V. Wheeler, was decided in December, 1976.^^ The case is best summarized by quoting from the decision : The defendant, a Navajo Indian, plead guilty in Navajo tribal court on October IS. 1974 to charges of contributing to the delinquency of a minor and disorderly conduct, the charges growing out of an incident tiiat had occurred on Indian territory two days earlier. Over a year later the defendant was in- dicted in Federal court for carnal knowledge of a female Indian under the age of sixteen years. There is no dispute that the Federal charge grew out of the " Cornflower V. Garland, 342 F. 2d ?.&9 f9th cir., 1965). " Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th cir., 1958). ™ 25 U.S.C. 1.302. 1303. » Settler v. Yakima iribal Court, 419 F. 2d 486 (9th dr., 1969), cert. den. 398 U.S. 903 (1970>. ^ U.S. V. DeMarrias, 441 F. 2d 1304 (8th cir., 1971) ; U.S. v. Kills Plenty, 466 F. 2d 240 (8th cir., 1972K ^ U.S. V. Wheeler, No. 76-1509 (9th Cir., 1976). IGO same incident and the same actions of the defendant as the "contributing to. the delinquency of a minor" charge before the Navajo tribal court. Before trial, the district court judge dismissed the indictment "on the basis that the de- fendant (had) already once been place in jeopardy for the same offense". We affirm.^" The court bas=ed its prior decision on CoIU-fioweT. No mention was made of any of the three cases in the 8th Circuit. The implications of this decision for jurisdiction of Indian tribes and for the power of Congress to take corrective action through legis- lation are apparent. If the doctrine of double jeopardy is applicable to judgments of tribal courts, there seems little doubt that either the courts or Congress will soon strip the tribes of authority to act in any situation which might potentially be prosecuted in Federal court. It is simply not tolerable that a person can plead guilty in tribal court to a minor offense and thereby preclude prosecution in Federal court for a major offense. It is essential tliat the separate sovereignty of the tribes continue to be recognized if the jurisdictional balance between tribal and Federal courts is to be maintained. The second level of this problem, the limitation on the power of Congress to legislate in Indian affairs, is equally clear. If the govern- mental institutions of the Indian tribes, particularly tribal courts, are in fact federally created instrumentalities and thus arms of the Fed- eral sovereign, there is no way that Congress can legislatively waive the requirements of the U.S. Constitution to the instruments of its own creation. This result would not only pertain to matters in the area of criminal law, but also to matters in civil law. If the "Federal instrumentality" doctrine enunciated in the Wheeler case is sustained, then it is clear that the entire panoply of Federal constitutional law must necessarily become applicable to the governments of Indian tribes. It is vitally important that the courts and Congress continue to rec- ognize that tribes are not the creatures of Congress but are separate and distinct sovereigns which the Federal Government has recognized. They are domestic, dependent sovereigns. They are not federally created instrumentalities. They are the instrumentalities through which the Federal Government has chosen to carry out its Indian policies. They are entitled to Federal protection — indeed, there is a Federal responsibility to protect them — but they are not subject to all and the same restraints which are applicable to the Federal Govern- ment. Recommendations In connection with this section of the report, the Commission finds that no legislative action is necessary at this time. C. TRIBAL JUSTICE SYSTEMS Overvieio Tribal justice systems are evolving institutions which have grown out of traditional Indian mechanisms for dispersing justice. 83 Ibid., p. 2. 161 Traditional systems survived well into the lOth centnry, and al- though they varied considerably from tribe to tribe and region to res'ion, they were characterized by consensual and well understood means for 'maintaining connnunity harmony. Later on, some tribes adopted western style, formalized institutions into their tribal sys- tems: however, the vast majority of the tribes retained traditional methods. In the latter half of the 19th century, the Bureau of Indian Affairs created within the tribal setting Indian police and a Court of Indian Offenses. These were designed to enhance the authority of the Federal Government and undercut that of the traditional tribal leadership. The passage of the Indian Reorganization Act in 1934 permitted the tribes to establish or reestablish their traditional justice systems by virtue of the inherent sovereignty concept, the policy in the Department of the Interior, the language of IRA. or some combination of one or more of these. Today, traditional justice systems are emerging as viable tribal institutions playing a significant role in the provision of justice services on reservations. The systems vary in design, capacity, support, and efficacy. But all require continued and expanded Federal support and the flexibility for refinement and definition in order fully to meet reservation needs. Bachgj'ound ]\Iuch has changed in the manner and form of tribal government op- eration since the arrival of western European institutions on the Amer- ican continent. Some of the change has been evolutional, produced by the tribes themselves; the greater change, however, has been imposed upon the tribes by the direct and indirect operation of the United States Government. At their present level of development, few tribal institutions correspond to any traditional form or style. What modes of government Indian tribes would have developed to meet the de- mands of the changing centuries without the persuasive presence of the Federal Government is not known; what options are open to the tril^es other than these western modes can only be speculated upon. In the first several hundred years of contact, tribes were for the mo>t part able to retain their traditional governing modes. These were highly diversified, ranging from the sophisticated confederacy of the Iroquois — a precursor of the federal system — to informal systems of communal consensus. To characterize all Indian tribes by any single generalization is factually misleading. Several general observations about Indian systems of government, in contrast to western systems, however, are pertinent. ]\Iost western governments are formalized in- stitutions with voluminous sets of laws and regulations, largely re- lated to private property concepts. Indian tribes and societies gener- ally did not consider private property as central to a government's relationship to citizens: communal proj^crty concepts are far more prevalent in tribal societies than are individual property concepts. Be- cause of this, theft within tribes was "virtually unknown.-' Rather than the representative style typical of western governments, tribal societies were often governed by communal systems of chiefs and elders. Leadership was often earned by performance or acknowledg- ment and rested upon consensus and theological groimd for exercise. 162 Many different systems existed for resolving disputes and maintain- ing order. Some tribes had warrior societies which functioned as en- forcement mechanisms ; other tribes utilized community pressure to en- force norms. Scorn is said to have been an extremely effective method of enforcement. Imprisonment was unknown, and restitution, banish- ment, and death were the major retributive sanctions utilized. The first three-quarters of the 19th century wreaked havoc on these traditional tribal governing bodies.®* Removal, continuous war, and the reservation era reduced most tribes to de facto wards of the Gov- ernment. Traditional food supplies were gone. Tribes were forced, oft times brutally, into reservations, numbers and strength were depleted, and pure survival from starvation placed tribes at the mercy of the Government dole.^^ This dole was used as a frequent weapon by Indian agents to enforce the policy of the moment. At this point in history, several factors merged to create new mecha- nisms for tribal governance which would eventually evolve, albeit con- trary to the motives of the creators, into institutions for the mainte- nance of tribal sovereignty. A major struggle for power occurred in the 1870's and 1880's between the civilian and military authorities for control over Indian reserva- tions.^^ The civilian authorities, supported by many church organiza- tions, sought ways to control the reservations without reliance on military troops. Aside from simple bureaucratic competition, civilian opposition to military authority was based primarily on the military tendency to settle all matters by extermination. In addition to the power dispute, there was a growing assimilation fever; and law and order was felt to be a necessary component in the job of "civilizing" the Indians: to educate; to Christianize; and to transform the Indian economy from a subsistence hunting, fishing, gathering and trapping system to a western style farming economy. A system of laws was felt necessary because : "They cannot live without law. We have broken up, in part, their tribal relationships, and they must have something in their place." ^^ It was in this climate that federally controlled Indian police and courts developed. Indian agents, as part of the assimilation process, wished to further erode and undercut the remaining power and authority of the traditional leaders and the s^^stems they represented. Commissioner of Indian Affairs Price in 1881 referred to the new police and court system as; "* * * a power entirely independent of the Chief. It weakens, and will finally destroy, the power of tribes and bands." ^^ By 1890, there were Indian police in nearly all the agencies and Courts of Indian Offenses in two-thirds of the agencies.®^ The Indian police and the Courts of Indian Offenses were not alwa5^s successful.^" ®* Some tribes, notably those known as the Five Civilized Tribes, specifically adopted west- ern style institutions for governance in the late 18th and early 10th century ; these tribes, however, were the exceptions. 85 Indian Police and Judges, at 6 (1966). Indian agents are referred to "as the local repre- sent.itive of the TT.S. and fount of all favors." 8« Id., quoting Indian Agent Edward P. Smith (1875), at 6. ^ Id., quoting Bishop Whippel's advice to President Lincoln, at 9. Hagen also comments "But what was to be gained by destroying the concept of communal ownership if the new property owner had no legal machinery to protect his right?" at 5. 88 Id., at 9. 89 Id., at 27-43. w See generally, BIA, Bureau of Law Enforcement, Indian Law Enforcement History. 163 Inadequacy of fimdino- lias always been a significant problem ; it was not imtil 5 years after their creation that Congress provided any funds for the courts, and then to a very meager degree. Neither the Indian police nor the courts were able to eradicate the influence of traditional Indian culture or Indian custom, as some of the assimilationists had hoped. Instead, the combination was a cuiious mixture of western style law and tribal custom, because the Indian police and Courts of Indian Offenses exercised jurisdiction over both Indians and non-Indians. In the early days of western expansion, the breed of whites settling on or near Indian reservations created considerable trouble for the Indians. The famous ''hanging*' Judge Parker described these newcomers to the reservation areas as : "a class of men — who revel in the idea that they have an inherent right to steal from Indians." °^ In some areas, in fact. non-Indians created the principal problems faced by Indian police and courts. In western Oklahoma, for example, much of the Indian police effort was directed at removing non-Indian herds from Indian lands. The status of the Courts of Indian Offenses within the jurisdictional framework was unclear, and when potential test cases arose, the Department of the Interior generally avoided the test rather than meeting the issue. Congress addressed the issue finally in 1934 when the Indian Re- organization Act (IRA)°- was passed providing a SA'stem for reestab- lishing tribal governments. The Act provided for federally chartered institutions with constitutions and court sj'stems. Although at the time of passage the IE A was perceived as a major shift in Federal policy favoring tribal self-determination and ending the erosion of tribes and their land bases, it actually provided, instead, a distinctly western model of government for the tribes. With assistance from the Department of the Interior, tribes were to draft their own constitu- tions, establish their own courts and codes of laws. In practice, most tribes using the IRA model either adopted the old system, which had, by this time, become known as 25 CFR courts °" or adopted their own codes and courts closely modeled on 25 CFR. Of major importance to an understanding of tribal courts in terms of present day issues and operations is the 196S Indian Civil Rights Act,^* which extended certain U.S. Constitution type protections to the operations of tribal governments and courts. The Act also congres- sionally limited the penalties tliat could be imposed by tribal courts to G months imprisonment and a $500 fine, or both. The Current Justice Systems In addition to preexisting tribal systems and 25 CFR systems, many tribal governments have created justice systems in the context of their inherent sovereignty, nnd under the auspices of the Indian Reorganization Act.^^ In 1976. there were 117 operative tribal courts in Indian country: this represents an increase of 32 courts since 1973 when there were 85.^^ In 1973, Indian tribal courts handled approxi- " Ha^an, supra at 53. "2 2o r.S.C. see. 461. et seq. ^ 2.5 CFR contains all the elements for the Bureau-created courts. «■* 2.=) r.S.C. see. l.sni et seq. ^ 2.0 U.S.C. see. 461. ^ Source : National American Indian Court Judges Association. 164 mately 70,000 cases; although this caseload has increased, no actual current figures are available. These courts and the other components of the justice system are faced with herculean tasks and responsibili- ties. A 1974 survey conducted by the Bureau of Indian Affairs indi- cated that crime rates — predominantly alcohol related — on Indian reservations were significantly higher than in rural America.®^ The 117 Indian justice systems vary considerably from one another in both design and effectiveness. Like their non-Indian counterparts, Indian court judges are both appointed and elected.'^® There is no uni- form standard, but as a general rule, most tribal judges are not attor- neys.^^ At least one tribe requires applicants for judicial positions to pass an oral and written test on the tribe's constitution and laws.^°° Indian tribal courts function in both criminal and civil matters. In some areas, both the judicial and police functions are contracted from neighboring non-Indian communities.^"^ In at least one area, a non- Inclian government contracts law enforcement services from a tribal police department.^"- Some tribes provide extensive representation for indigent jiersons in tribal court; others provide none. Police services may be provided entirely by tribal police, by BIA officers or by a combination of BIA and tribal police. Tribal appellate sys- tems also vary greatly. On some reservations, there is no appel- late court system. Where tribes utilize 25 CFK Courts of In- dian Offenses, appeals folloAv through the Department of the Interior. Some tribes have their own appellate court system ; ^°^ others use judges from neighboring tribes for special appeals.^"* The tribal council may also constitute itself as the final tribal appellate system. ^°^ Any generalization about tribal courts and law enforcement sys- tems is therefore vague by definition. These are evolving institutions responding to tribal and community needs and operating at various levels of sophistication. Contrary to the vicAvs of some, there does not appear to be anything inherent in tribal justice systems that makes them any less capable than their non-Indian counterparts in dis- pensing justice. However, one strong criticism of tribal government that occurred in the 1950's and that used as a rationale for allowing States to assume jurisdiction in Indian country (P.L. 83-280) was the perceived inadequacy and the non-professional level of tribal justice systems. »T Mpmorandum to the Commissioner of Indian Affairs from T. Krenske, Director, Office of Indian Services, Mar. 13, 1975. ^'^K.g., on Gila River, judjies are elected at lar?:e for 3-year terms. Southwest Transcript at 18. On Papago, judges are appointed bj- the council for 2-year terms. Southwest tran- script at 119. »» The majority of non-Indian judges at the J. P. level nationwide are not lawyers. North V. RuKsell U.S. ■ (1976) upheld the use of such judges in a case involving the con- viction and sentencing of a person by a judge with a high school education but without any judicial training so long as there was the right of appeal to a court with a lawyer judge. '"''" Mojave-Apache, Southwest transcript at 257. !» Ak-Chin Indian Reservation uses a county judge for its tribal court judge. Interview report. 102 Nespelem, Wash., contracts police services from the Colville Tribal Police Department, Northwest transcript, exhibits, affidavit of members of Nespelem City Council. !•" Yakima Nation, Northv^est transcript at 659. 104 rpjip papagos have used .Judge Rhodes from Gila River. la* Conceptually this Is similar to the English system where the House of Lords is the court of last resort. This process is used by the Yankton Sioux Tribe, Midwest transcript at 144-45. 165 As one observer pointed out: If jurisdiction was (transferred) because of inability to administer criminal and civil jurisdiction in the early 1950's, it should have been foreseen that such capabilities would someday be developed * * */"* In fact, such capabilities have been and continue to be developed. There are currently many institutions and programs that aid in this process that did not exist in the 1950's. The Indian lawyer, formerly a rare phenomenon, is being found in increasino- numbers. It is pres- ently estimated that whereas there were only approximately 20 Indian lawyers several decades ago, currently the number has grown to be- tween 150-180. At least another 100 Indian students are enrolled in law schooL^°^ The National American Indian Court Judges Associa- tion now exists, and under Federal funding, provides resources, mate- rials and training to Indian court judges. Among its publications are a five-volume work on Justice and the American Indian, and a hand- book on Child Welfare and Family Law and Procedural Manual. Other public and private resources although insufficient for the total- itj^ of the need, are also available, such as the Xative American Rights Fund, and the various Indian legal services programs. Capabilities That tribal justice systems are seen as evolving institutions is re- flected ill the fact that many tribes have just completed or are cur- rently undertaking major revisions of constitutions, bylaws and law and order codes.^°^ Thurman Trosper o,f the Flathead Reservation expressed the view that judicial systems are essentially new to many tribes as is the non-Indian concept of justice ; they are operating quite well in view of their brief experience and are expected to develop a high level of sophistication.^^^ There is criticism of tribal courts received from varied sources. Montanans Opposed to Discrimination, an organization opposed to tribal jurisdiction over non-Indians, does not think much of tribal court systems in Montana.^^° The Assistant Area Director for the BIA, Portland, Oreg., however, takes a different view : "^ "Wiile they may not be trained in the law and the relationship to Anglo-Saxon law, I do not know a tribal judge who doesn't know due process * * *." xllbert Renie, the acting BIA Superintendent at Fathead, feels that the Flathead Court makes sure that everyone's rights are protected, adding that non-Indian business persons use the court for debt collection. ^^^ Severt Young Bear, a councilman from the Pine Ridge Reservation, was severely critical of the "breakdown" of law on Pine Ridge. He 108 Letter from Douglas Nash, Counsel to the Umatilla Reservation to Donald R. Wharton, Task Force No. 4. 1"^ Source : American Indian Law Center, Unir. of N. Mex. School of Law. "" E.s:., San Carlos Apache. Southwest transcript, at 320. .321 ; Nez Perce, Northwest transcript at 697-700 ; Gila River, Southwest transcript at 76 ; Flathead, Montana tran- script at SS ; Winnebago, Midwest transcript at 431-32 ; Minnesota Chippewas, Great Lakes transcript at 162 : and Oneida, Great Lakes transcript at 36. 1™ Montana transcript at 30. "" AS'ee ch. 11, and ch. V, sec. E, of Task Force No. 4. 1" ^ee ch. II. and ch. V, at 142, Task Force No. 4. 1" Ibid., at 57-58. 166 attributed part of the problem to the role the Federal Government played in violating the tribal constitution by dealing solely with the chairman and ignoring the legally constituted governing body of the Oglala Sioux, the tribal council. Another problem has been the multi- ple exercise of criminal jurisdiction on Pine Eidge — by the FBI, the BIA, the U.S. marshals. State police and various "vigilante" groups. Notably excluded in that exercise is the tribal government.^^^ j^^ ^j^^. portant footnote to the Pine Eidge story and tlie issue that has been raised in some quarters about the Indian capacity for self-government is that Oglala Sioux people in a popular election in 1976, turned out o.f office the tribal chairman for Pine Eidge under whose regime most of the problems occurred. Training and Funding The ability to operate a justice system is often dependent on the training of its personnel and the financial resources of the system. All extensive program now exists for the training of both Indian police officers and tribal court judges. The Bureau of Indian Affairs runs a police academy at Brigham, Utah, for the training of BIA and tribal police officers. A significant limitation, however, is that tribes must finance the officers' travel to and from training. In addi- tion to this training, some tribal police departments provide supple- mental training. Chief Johnson of the Colville Tribal Police Depart- ment indicated that his officers receive more training than do the deputies in the local sheriff's department.^^* Tribal police also are often recruited from the ranks of non-Indian police departments. The Suquamish Tribal Police include several county officers and a former Pennsylvania highway patrolman.^^^ The training provided for tribal judges usually comes through the National American Indian Court Judges Association. In the 1975-76 year, 199 persons participated in tribal court training sessions which have been conducted for the past 6 years and generally cover criminal law and family law.^^^ The training sessions are conducted in regional centers for several days each month. No formalized onsite training is being provided via national programs, although some courts infor- mally train new judges onsite. Some of the limitations of the existing programs as indicated by judges include an inability to attend because of workload and a desire for more extensive training. Funding for justice systems comes from several sources. The Bureau of Indian Affairs, through contracts Avith tribes and direct services, expended approximately $24 million in the 12-month period ending in June 1976. Of this, approximately $3.5 million was spent on admin- istrative expenses; $11.5 million in^direct services; and $8 million in contracts to tribes; the remainder went to the training academy."'' Law Enforcement Assistance Administration made grants totaling $4,691,000 to tribes out of its discretionary funds and another $900,000 out of LEAA's total block grant budget of $900 million went to law enforcement agencies in areas where tribes and substantial urban 113 Midwest transcript at 614. "* Northwest transcript at 96. ^- Ibid. ii« Source : National American Indian Court Judges Association. 11' Source : Division of Law Enforcement Services, BIA. 167 Indian populations are located. It is not known what part of these funds went to tribal law enforcement systems.^^^ In addition to these Federal moneys, substantial tribal resources are expended for law enforcement systems. For example, the Colville Tribe spent $347,000 of its own funds "^ (BIA provided $21,800) for law enforcement this past year. The Yakima Nation spent $471,225 (BIA provided $69,400). Warm Sprinos estimates its expenses at $450,000— five to six times as much as the BIA spends ($79,400) on the Warm Springs law and order program. The Navajo Nation's tribal expenditures are close to $1 million ^"*^ (BIA provides $465,000). All tribes indicated the need for more resources to support and utilize effectively law enforcement systems. Funds in some areas are being used in creative ways. The Warm Springs Tribe, in cooperation with the State of Oregon, has a "work release program" for criminal offend- ers. The Yakimas haA'e started an alcohol detoxihcation center. The unmet needs are, however, substantial. The problems of small tribes in this area are overwhelming, particularly small tribes in P.L. 83-280 States which receive little or no Federal financial assistance.^^^ Of the 481 federally recognized tribes, 326 have resident populations of 350 or less. Many of these tribes do not even have the funds to support the bare rudiments of tribal government, much less additional moneys to support sophisticated justice systems. On the Campo Keservation in Southern California, a $10,000 tribal development grant enabled the tribe, for the first time, to set up a basic recordkeeping system.^" Other small reservations relate similar stories of basic unmet needs.^-^ Recorrumendations The Commission recommends that: Congress appropriate significant additional moneys for the mainte- nance and development of tribal justice systems : Funding be direct to tribes. Funding be specifically provided to enable tribal courts to be- come courts of record. Congress provide for the development of tribal appellate court systems. Appelate court systems will vary from tribe to tribe and region to region. The development of tribal court systems will require tribal ex- perimentation and time. Congress statutorily recognize such appellate systems as court systems separate from State and Federal systems. Wlien tribal court systems are firmly operative. Federal court review of their decisions be limited exclusively to writs of habeas corpus. These recommendations flow from the concept that tribal justice systems are evolving institutions that are capable of fair and efficient "' Source : Indian Desk. LEAA. "' Xorthwpst transcript at filT. ^20 Northwest transcript at 692. '=ilbid.. at 2fi2. ^ Southern California transcript at 83. '^^ f?ee. e.sr.. Pauma. Southern California transcript at 9: Pala. Southern California tran- script at 471; Keweenaw Community (Michigan) Great Lakes transcript at vol. II, 35. 168 justice. Flexibility is needed to allow each tribe to develop fully the system that will operate well within its own individual context. The development of a tribal appellate system needs to be seen in this devel- oping, experimental context. Some tribes are so situated that a tribal system may be appropriate; others may wish to develop regional appellate systems or appellate systems based on tribal relationship (e.g., the various Sioux tribes might wish to form an appellate sys- tem). The Federal Government's role in this area should be one of support, providing the funds and the mechanisms to allow for these developing institutions to evolve. D. TAXATION Introduction Of all of the issues discussed in this report, there is none more con- troversial than that of taxation. The issues are not w^ell understood — nor in most cases does it appear there is any sincere desire to achieve understanding. The notion that tribes might have the inherent power to impose taxes upon persons or property within the jurisdiction of the tribe evokes cries of "no taxation without representation" — a rally- ing cry of revolutionists in 1776, and apparently 1976 as well. The fact that Indians enjoy limited tax immunities from State or county governments is cited as a ground for denying them access to or partici- pation in either State or county government. The claim is that Indians have all of the benefits and none of the burdens. The issue has become a focal point of those who have long advo- cated termination of the Federal relationship with tribes and a focal point of those who so long resisted opening the doors of their political systems to this visible minority and who yet would close those doors even to their own financial detriment. In a climate such as this it is difficult to discuss the issue rationally. Although undoubtedly well- intentioned, the dissenting report itself advances these very arguments.^-* it was not until 1948 that the State of Arizona allowed Indians to vote in State elections after they had appealed the issue to the State supreme court.^-^ At this very time tlie legislature of the State of Arizona is considering a bill that would divide two counties (Xava jo and Apache) so as to create a single northern county which would be predominantly non-Indian. The non-Indian po]:)ulation of these coun- ties support the legislation, citing as their reason that Indians do not pay taxes yet sit on the county boards. Yet it is acknowledged even by those non-Indians advocating this separation that the consequence of this political division will be to raise their own property tax to three times its current level.^^*^ For the most part the "benefit-burden" argument would appear to be spurious. Contrary to widely held beliefs, individual Indians do not enjoy full tax exempt status. Except as to matters involving trust property, they are subject to all the Federal taxes that any other i=* Dissenting report, pp. 15—22. 125 Harrison v. Laveen, 67 Ariz. .'^.^7 (1948), 196 p. 2d 45ft. !-■« The Arizona Republic, Mar. 20, 1977. 169 citizen pays. Theoretically, the rule is reversed as to State taxation of Indians within Indian reservations, but as a practical matter they pay most of the same State taxes as are paid by their non-Indian neiofhbors. In addition, they have long contributed revenues to tribal governments through processes other than those used by Federal, State and local revenue schemes. Of all of the governments involved, it would appear that only a comparatively small number (approximately 200) county govern- ments ^-^ have legitimate grounds for complaint or concern, and this arises principally from the fact that a major part of county govern- ment revenue is derived from taxation of real and/or personal prop- erty.^-^ But these complaints must be measured against the benefits which accrue to these local areas through (1) direct Federal subsidies such as impact aid, and other program moneys for health, education and general welfare, all designed to alleviate unusual money demands on those governments, and (2) indirect benefits which accrue to these local governments because of Federal and tribal expenditures of money which flow through the reservations to tlie non-Indian community. The most outstanding feature of any analysis of taxation and the comparative "benefit-burden'' discussion is the near total lack of am' hard data. To the extent it has been developed it supports the conclusion that States are deriving more direct cash benefits from the Indian presence within their State than they would derive from the Indians themselves if Federal recognition were withdrawn and the States allowed to impose taxes without restriction. A 1976 study of the Yankton Reservation in South Dakota com- missioned by the Ninth District Federal Reserve Bank reflects a total direct Federal program expenditure of $3,164,117 compared to a total State expenditure of $1,214,701. The figure for the State is inflated, however, because mam- of these State expenditures actually involved Federal pass-through moneys. The program moneys expended by the State whicli did not involve at least some Federal pass-through total only $440,329 and of this sum more than $300,000 was spent on high- way construction. By contrast, the St. Paul's Indian Mission at Yank- ton spent well in excess of $500,000. The great bulk of the moneys expended on behalf of services at this reservation passed directly into the adjoining non-Indian community.^-^ The most thorough state- wide analysis this Commission has been able to find dates from 1973 for the State of Arizona.^^° This study reflects a similar Federal-State expenditure ratio with corresponding cash out-flow from the reserva- tions to the local non-Indian community. To the extent tribes are now developing tax schemes of their own, they should most certainly be supported. Xot only does the commitment to tribal self-government require this, so also does financial self-inter- est. In 1975 the State of South Dakota entered into a sales, ser^'ice and use tax collection agreement with the tribes in that State. This 1*^ Conversation with Jim Evans, National Association of Counties, Apr. 29, 1977. i2''Rej>ort of the Board of Commissioners of Corson County, S. Dak., Cong. Rec, Mar. 20, 1977. at p. S514.5. "9 "Flows of Funds on the Yankton Sioux Indian Reservation", a study commissioned by the Ninth District Federal Reserve Bank, June 1976. 13" Arizona State Indian Seminar, Subcommittee Report on Taxation and Services to Ari- zona Reservation Indians, 1973. 92-183—77 12 170 agreement provided for collection of the described taxes by the State ■with a pro rata rebate to the tribes without charge, for administration of the costs of collection. The income derived from this agreement has provided much needed money to the tribes for support of the costs of government. Kecently the Oglala Sioux Tribe developed a compre- hensive tax code. A special paper was submitted to Task Force Number Two providing the details of this code and reflects the extreme sig- nificance such taxing authority can play in making the tribes self- sufficient.^^^ Narrative The laws and policies presently applicable to the tax status of In- dian tribes and individuals are often inconsistent and do not seem to have followed any single rational scheme. The impact is increas- ingly more important as all governments become more aware of reve- nue sources. Sloreover, emerging tribal governments in search of greater self-determination tlirough assumption of greater responsi- bilities and increased exertion of sovereign powers will be even more important in obtaining the benefit of the value of their natural re- sources and governmental prerogatives. Affirmative taxing powers and immnuity from outside taxation will be crucial issues in this evolution. The following is a discussion of current tax laws. Federal Taxation Historically, tribes and individual Indians were not taxed by the Federal Government. In fact, Indians were not even counted for the purposes of apportioning representation in the Congress or for ap- portioning taxation by population to the several States.^^^ However, in 1924, the Congress provided for automatic citizenship of Indians born within the United States, and in 1931 and 1935, two Supreme Court cases established that individual Indian residents were subject to the general tax laws of the Federal Government.^^^ Congress may, nonetheless, exempt individual Indians from such Federal laws pursuant to Federal-Indian policy or in furtherance of its trust obligation. Such intent must be express since an exemption will not be inferred by the Internal Revenue Service or the courts. Federal Tax and Indian T rites As a general proposition Indian tribes are not taxed as entities. There is no case which has decided the issue nor any specific provision of the Internal Revenue Code exem]Dting tribes, but the Internal Revenue Service has issued a ruling to that effect.^^* This does not bestow upon tribal governments the full tax status enjoyed by other governmental units such as States and their political subdivisions.^2^ Moreover, there are Federal statutes which extend Federal tax laws to tribes where they do not do so for States.^^^ 121 Task Force No. 2, app. XV. Offlala Sioux Tribal Taxation System Case Study. 132 Art. 1, see. 1, clause 3, Constitution of the United States. See also, the 14th amend- ment to the Constitution. ^^ Chateau v. Burnett, 2S.3 U.S. 691 (1931) ; Superintendent of Five Civilized Tribes r. Commission, 295 U.S. 493 (1935). ^^ Rev. Rul. 67-284. i^E.p., Rev. Rul. 58-610 exempting State and local governments from Federal excise tax, but not tribal governments. i"«E.g., 45 Stat. 495, ch. 517 (1928), oil and gas production of the Five Civilized Tribes. 171 During the 94th Congress, the proposed Indian Tribal Government Tax Status Act (H.R."8989 and S. 2664) was introduced to provide similar status to tribal governments for Federal tax purposes, a status which is enjoyed by State and local governments. The Act would not, however, have extended all such provisions of the 195-4 Internal Keve- nue Code."^ Any renewed attempts to introduce such a bill should seriously contemplate total extension of all provisions. Withholding of any of the provisions should be based on specific justification on a tribe-by -tribe analysis. Tribes are distinct political entities fjossessing reserved sovereign powers and as governments with powers over their internal affairs, they have no less need for tax benefits than non-Indian governments. In fact, the stated Federal-Indian policy of self-determination and ultimate self-sufficienc}^ would indicate that tribal governments may have greater need for these protections and benefits as they assume greater responsibilities. Ivelated to this are Federal tax laws which provide financial benefits to non-Indian governments by providing certain incentives to indi- vidual taxpaj^ers in their dealings with those governments. These benefits are not presently enjoyed by tribal governments. The IRS has ruled that a decedent's bequest to the Zuni Indian Pueblo is not allowable as a deduction against Federal estate taxes,"^ that an indi- vidual's income from interest on tribal obligations issued by the Swinomish Indian Tribe is not an allowable deduction,^^^ and special legislation was required to exempt interest on bonds issued bv the Hopi Tribal Council."" Disparity in the treatment of Indian tribal governments and non- Indian governments should be removed so that tribal governments may enjoy the benefits necessary to the generation of revenues. This is not to say nor to imply that tribal governments or individuals deal- ing with them will benefit from all of the provisions. Most tribal governments simply will not ever be engaged in some of the activities these provisions speak to. As such, they cannot have any measurable impact on revenue sources of Federal or State governments or derive any great benefits for tribal governments. However, it allows tribal governments and individuals dealing with them a uniformity of ex- pectation and a clear expression of the status of tribal governments, ^loreover, it goes far toward the overall scheme of providing tribal governments the tools they require to become self-determined and self-sufficient on a par with non-Indian governments. Federal Taxation of Individual Indians Individual Indians are subject to the general tax laws of the Federal Government unless expressly exempted by treaties, agreements or con- gressional acts. The exemptions run primarily to restricted Indian 1^ Proposed for extension, for example, were I.R.C. § 4055 (Federal retailers' excise tax) ; § 4221(a) (Federal manufacturer's excise tax); §4292 (Federal communications excise tax) ; and §4482 (Federal motor vehicle tax). Examples of withheld sections are I.R.C. § 115 (income from performance of government functions) ; § 3306 (Federal employment tax) ; § 4402 (sweepstakes wagerins: tax) : and 5113 (Federal liquor tax). "« Rev. Rul. 73-179 regarding I.R.C. § 2055. ^■■» Rev. Rul. 68-231 regarding I.R.C. § 103. "" See P.L. 91-264. 172 lands and allotments held in trust by the Federal Government for individual Indians and encompass income derived from such lands.^*^ However, there are limiting factors in determining the exempt status of land and income derived from it. Individual situations are tested against the Federal-Indian policy of fostering financial independence through the protection and preservation of land for the Indians, Taxa- tion of such lands or income from them "would be inconsistent "with such a policy and beyond the intent of Congress.^*^ Therefore, taxation which would not run counter to such a policy would be permissible. Exemption from Federal taxation of an individual Indian on lands and income must meet two major tests concerning : (1) what lands are within the exemption; and (2) what income can be said to be derived directly from the land. The following guidelines have been adopted by the lES, as expressed in rev. rul. 67-284 : 1. The land is held in trust ; 2. The land is restricted and allotted and held for an individual noncompetent Indian, and not for a tribe ; 3. The income is derived directly from the land ; 4. The treaty or statute evinces a congressional intent that the allotment be used as a means of protecting the Indian during the trust period; and the language is clear as to congressional intent that such land not be subject to taxation. The effect is to provide the narrowest possible reading to the exemption. The policy of fostering the economic welfare of the tribe could as easily translate into protection of tlie economic development of the individual Indian lessee of tribal lands. It is somewhat incon- sistent to exempt income where the Indian person develops his own trust lands or the tribe its own, but where the individual leases the tribe's trust land, the exemption on income is lost. The same would be true where tribal lands were never allotted and are assigned to individual tribal members. The income would be taxable under the IRS ruling since the land is not held in trust for that Indian. The broader policy of exempting Indians from taxation in areas designed to foster advancement and development is reflected in areas other than trust lands. For exam.ple, payments made pursuant to vari- ous employment programs to Indian residents of job training have been ruled nontaxable; ^*^ and funds paid to Indians for relocation and vocational training by the United States were ruled to be gifts and not subject to Federal income tax.^** Congress has also exempted other distributions to individual Indians where the disposition of judgment funds, trust assets, or cash in lieu of allotments were involved.^*^ There must be a recognition that presently the disposition of the trust obligation and the implementation of Federal-Indian policy serve as separate grounds for congressional exemptions from Federal taxation of individual Indian assets. Much would be added to clarify and bring consistency of the law to policy implementation if Congress "1 ^qnire v. Capoemayi, 331 U.S. 1 (1956). 1" See General Allotment Act { 6, 25 U.S.C. § 335 ; Stevens v. Commissioner, 452 F. 2d 741 (9th elr., 1971). i« Rev. Rul. 6.S-.^8. 1" Rev. Rul. 57-2.^3. "^ See. p.tr., 25 U.S.C. 5 772 (exemption of per capita distribution of judgment funds) ; 25' U.S.C. § 037 (division of tribal assets. Catawbas) ; 25 U.S.C. § 955 (exemption of cash paid in lieu of equalization allotment, Agua Caliente). 173 would enact a statute which exempts all income derived from trust lands by an individual Indian irrespective of whether the land is held in trust for that individual. Sitate Taxation As with other areas in the assertion of State powers over individual Indians and tribal governments within reservation boundaries, States are limited to those areas where autliority has been expressly con- ferred upon the State by Congress.^*° A State may not tax the income of a reservation Indian from sources within the reservation ; "' im- pose a sales tax on purchases by an Indian within the reservation ; ^^' or impose a personal property tax on Indians within the reserva- tion."^ The same reasoning would appear to apply to a State inherit- ance tax on the transfer of property of a deceased reservation Indian.^^" ^ Some confusion over judicial doctrine has developed over the years which has led to the present preemption/sovereignty analysis. Prior to McCIana.lian, two distinct doctrines emerged : Tlie Federal instru- mentality doctrine and the noninterference test. In U.S. v. Rickert., 188 U.S. 432 (1903), the Supreme Court held that a State tax on per- sonal property and permanent improvements on Indian trust land was invalid as it interfered with the instrumentality ^^^ desigiied to achieve a Federal policy of assimilation and economic development. This same line of reasoning applied as well to non-Indian lessees of Indian lands.^°- However, in 1938. tlie Supreme Court l:>egan to reject the doctrine where they perceived tlie intorferenre with the governmental purpose or function to be insubstantial, indirect, or remote ^"'^ and upheld a Federal tax on a non-Indian lessee of State school lands. In 1943, the Court decided Oklahoma Tax Commission, v. U.S. ^"* and cited a pre- vious holding in Tlelvering v. Motion Producers Corporation ^^^ for the proposition that the Federal instrumentality doctrine was no longer valid as a constitutional bar for State taxation of income from Indian holdings. And hnallv in 1073, the Court rejected an argument that the doctrine would act as a bar to the State's taxation of the in- come from an Indian enterprise on trust lands outside of the reserva- tion.^"^*^ As a determinant of the power of the State to tax non-Indians on reservations in activities with Indians, and income from Indian enterprises off the reservation on tax exempt land, the Federal instru- mentality doctrine is no longer sound. "Xoninterference"' as a test was enunciated in Williams v. Lee ^^" in 1959 and suggests that a State may exercise jurisdiction in areas such 146 yfrClnnahan v. Arizona Tax Commission, 411 U.S. 164 (1973). "" Brynn v. Itasca County, 96 S. Ct. 2102 (1976). ^■" ifoe V. Confederated Salish and Kootenai Tribes, supra. 349 Bryan v. Itasca Countif, supra. ^"0 Kirkwood v. Arena, 243 F. 2(1 836 (9th cir., 19.51). ^=1 Individual allotments and their Improvements were desisned to foster Indian assimila- tion hy encouraging individual ownership and to foster agrarian development by Indians. 15= nwr-fnw, O. rf G.B. Co. v. Harrison, 2.3.5 U.S. 292 (1914). !■■« Helvering v. Mtn. Producers Corp., 303 U.S. 376 (1938). ^54 319 U.S. 598 (19'43). '^ Supra note 30. ^^'^ Mescal em Apache Trihe v. Jones, 411 U.S. 14.5 (1973) ; see also, Agiia Caliente Band v. County of Riverside, 442 F. 2d 1184 (9th dr., 1971). i='358 U.S. 217 (1959). 174 as taxation to the extent that it does not interfere with Indian self- government. Tlie McCloAiahan court clarified the reach of the test to apply only to jurisdiction over non-Indians within the reservation where "both the tribe and the State could fairly claim an interest in asserting their respective jurisdiction." ^^^ However, the State may re- quire an Indian retailer to assist the State in collecting a State tax as- sessed against a non-Indian while making purchases from the Indian retailer on tho rcsen'ation.^^^ State taxation of reservation Indians depends upon congressional consent. Recent case law has resolved any doubt that such consent was given to those States assuming jurisdiction under P.L, 83-280. It was not.^^" There are, however, numerous Federal statutes which do pro- vide for State taxation of reservation Indians and activities: State gasoline tax (4 U.S.C. § 104) ; State taxation of mineral production under oil and gas mining leases ; ^°^ and taxation of reservation Indians in relation to their land (25 U.S.C. §349, 610(b) and 63 Stat. 613 [1949]). The reasoning behind the congressional authorization of State taxa- tion of mineral production of Indian lands is not clear. The legislative histories of several of the acts have been cited for the proposition that the taxes were authorized in response to "the favorable economic ])0si- tion of the particular Indians."' Oklahoma Tax Commission v. Texa^ Co., 366 U.S. 342, 366-67 (1949). Other explanations of the reason for the enactment of the legislation might include pressure from the States for a share of the mineral revenues, a desire to increase the process of assimilation, and the desire to terminate the Federal Gov- ernment's role as guardian, all of which were prevalent during the period in which the laws were enacted,^°- Assuming the validity of Lone Wolf v. Tlitclicocl\ 187 U.S. 553 (1903), which held that Congress has plenary authority to deal with Indian tribes and their property without regard to prior treaties, the Federal authorization of State taxation under tlie above statutes is valid. The statutes also appear to be valid under the McClanaJian rule since there is express congressional consent to the taxation in each case. It has been suggested that in respect to State taxation of Indians under the above leasing statutes, congressional consent has been withdrawn by the 1938 Indian Leasing Act, 25 U.S.C. 396c, which contains no au- thorization of State taxation and repeals all prior inconsistent acts.^^^ If this is the case, such taxation of Indians by the State would be invalid for want of congressional consent. The argument, however, is not totally persuasive, and in any case, it may be argued that not only the leasing statutes, but all statutes authorizing State taxation of res- ervation Indians, are inconsistent with Federal-Indian policy and consent to such taxation should be withdrawn. Such statutes almost all date from a period in Avhich the termination of tribal identity and 168 411 U.S. at 179. IE" Moe V. Confederated Smish arid Kootenai Trihex, 96 S. Ct. 1634 (1976). "^i^ Moe. supra; Bryan y. Itasca County, 96 S. Ct. 2102 (1976). "1 25 U.S.C. S§ 398 (c). 399. 401, 501, and several uncodified statutes. 1*2 See 58 Conjr. Rec. 172 et sen., May 23. 1919 (66th Cons?.) ; S. Rept. 9S2, May 3, 1928 (70th Consr.) ; letter from Sec. Work: 68 Con?. Rec. 470.1. Feb. 24. 1927 (67th Con?.) .9pc Goldhpi-ir. A. Dynamic View of Tribal .TnrisrMct-ion to Tax Non-Tnflian?!, fiteri In Riplii. Taxation anrl Indian Affairs. Indian Law TNIanual, AILTP (1976) ; Israel, A Proposal for ClarifyinfT tlip Tax Status of Indians, Taslc Force 4, AIPRC. i"i fiee '25 TT.S.C. 194, wliicli places the burden of proving ownership on white settlers clniniincr Indian land. 1"* Afearfrlero Apache Tribe v. Jones, supra. ITS 25 U.S.C. see. 465. '^'*' M excalero , supra. Ski resort equipment was exempt on land leased from Federal Gov- ernment. but income therefrom was not. i"5 Okla. Tax Comm. v. U.S., 319 U.S. 598 (194.3) ; West v. OJcla. Tax. Comm. 334 U.S. 717 (1947). "« r/.S. V. Mason, 412 M.S. 391 (1973). 1"' McClanahan, 411 U.S. at 171 ; Mason, 412 U.S. at 396. 177 eriy stated in the general rule and should turn on whether the property is within or without the reservation, rather than some vague deter- mination as to whether or not the individual Indian has been "assimi- lated." "When beyond the reservation, the trust status of property should determine its taxability (a congressional policy). With respect to taxation of income from off-reservation trust lands, the policy of Congress relevant to tribal self-sufficiency should be implemented by the courts given all reasonable inferences in favor of exemption. Clear congressional expression would do much to guide court determinations. Current Develo'p'inents in State Taxation of Reservation Indians Since the Supreme Court decisions in Bryan v. Itasca County ^"® and Moe V. Confederated SaJish and Kootenai Trihes^'^''^ States and Indian tribes have been faced with the need to reach some agreement on imple- mentation of those decisions. The issues largely involved State asser- tions of taxation authority over Indians on reservations, which were struck down as being without congressional authoritj^ The State involved in the case, Minnesota, claimed authority under Public Law 83-280, a statute designed to allow State assumption of some areas of jurisdiction previously Federal. In interpreting the law, the court concluded that the Federal grant of jurisdiction to those States man- dated or assuming it, did not include any expanded taxation powers. In a meeting of the Western State Tax Administrators at Anchor- age, Alaska, during the week of September 20, 1976, a statement was prepared for submission to this Commission.^^° Their submission identifies "three basic sources of jurisdictional controversy" in Fed- eral-Indian policy : (1) The comminfflinff of Indian and non-Indian persons within the reservation boundaries and concerns for constitutional rights of nontribal members on the reservation: (2) the "checker-l)oarding" of trust and fee land status and Indian/ non-Indian land ownership within reservation boundaries ; (3) present and poten- tial tax-free economic enterprise taking place within reservation boundaries.^^^ It then offers four principles for incorporation by Congress in legis- lation designed to resolve State taxing jurisdiction on Indian reser- vations : 1. States are without power to impose State taxes with resy^ect to on-reservation economic transactions and activities of enrolled Indians of that reservation the legal incidence of which is upon such Indians. However, States may require Indian retailers to charge, collect and remit to the State excise taxes levied upon non-Indian purchasers within the exterior boundaries of the Indian reservation. 2. For purposes of ap])lication of these principles the term "Indian resen-ation*' means all lands within the exterior bound- aries of a federally recognized reservation. I'SfleS. Ct. 2102 (1076). i™f>6 S. Ct. 16.S4 (1976). ^* States which joined in preparation of the report : Washington, Colorado, Idaho, ISIon- tana. Orejron. Utah. Arizona. Nevada, and Wyomine. Althoujrh California was not repre- sented at the meetinsr. thev sent a letter of approval. Testimony of Mar.v Ellen McCaffree at a meeting between the AIPRC and the Western State Tax Administrators on September '^O 1976. Transcript of the meeting at p. 3 (hereinafter. "Tax Administrators"). Also in atten- dance at the meeting were representatives from the State of Minnesota. ^^ Tax Administrators at pp. 4-5. 178 3. The term "Indian" means a person duly enrolled upon the membership rolls of the tribe upon whose reservation the economic transaction or activitj^ occurs and who is domiciled upon such reservation. 4. States are authorized to use their general administrative and tax enforcement powers in furtherance of State collection of taxes lawfully to be remitted by Indians to the State, and further States are authorized to commence any State initiated tax enforce- ment litigation in either Federal or State courts.^^^ The State of Washington has issued a revised State revenue rule, designed to administer that State's tax laws consistent with their view of the holdings in the Bi'^jan and Moe cases. Although the pro- posed revision recognizes that the reservation includes all land within the exterior boundaries without regard to the trust status of the land, it distinguishes "Indians" according to whether they are on their own or another reservation, purporting to tax them when they make purchases while on any reservation other than their own. And while recognizing that P.L. 83-280 confers no jurisdiction to tax reserva- tion Indians or tribes, "Washington's Revenue Rule 192 evinces an intent to tax personal property when removed from the reservation, including and especially automobiles or trailers. Finally, the rule requires Indian retailers to collect taxes from non-Indian purchasers (which are defined to include non-member Indians) and keep detailed records of sales to Indians not taxed.^^^ A more narrow application of the Bryan and Moe cases can barely be imagined. Minnesota, however, managed to surpass Washington. That State ignored the Supreme Court's rejection of "checkerboarded" jurisdiction enunciated in Moe and has instructed non-Indian retailers to continue to collect taxes from Indians on reservations irrespective of tribal membersliip. Minnesota's Tax Commission takes the position that the Supreme Court decision in DeCoteau v. District County Court ^^* controls in ^Minnesota, and they will await the decision in Rosehud Sioux Trihe v. Knei'p^^^ now in the Supreme Court, before taking further action. In the meantime, Minnesota Indian people are paying what is very probably an improper tax. Tribal Taxation As noted earlier, tribal governments, bv and larjre, have not in the past chosen to exercise their inherent powers of taxation. Those cases which have decided the issue have uniformly upheld the tribes' taxing powers.^^^ The court decisions rely largely upon the power of tribes to remove persons from the reservation, and consequently, to prescribe the conditions upon which they shall enter. However, Iron Crow V. Oglala Sioux Tribe specifically recognizes the inherent sovereign powers which exist, except where taken away. Surely this 1== Tax Aflministrators at 13. 1® Rev. Rule 102. State of Washington. 1^420 U.S. 425 (197.5). iss 54 F. 2(3 87 (8th cir., 1975) ; see Rosebud Sioux Tribe v. Eneip, #75-562, Apr. 14, 1977, for the Court's recent decision. ife Iron Crotv v. Ofilala Hionx Tribe, 2.31 F. 2d 89 (8th cir., 1956) ; Buster v. Wright, 135 F. 947 (8th cir.. 1905), appeal dismissed. 203 U.S. 599 (1906) ; Morris v. Hitchcock 21 App. D.C. 556 (1903) aff'd. 194 U.S. SS4 (1903) ; Mawey v. Wright. 5*45 W. 807, aff'd. 105 F. 1003 I Sth cir., 1900) ; Indian Reorganization Act, 25 U.S.C. sec. 476. 179 must comprehend at a very minimum the power of a government to sustain itself. The fact that tribal governments have not used taxation to support their governments does not compel the conclusion that they have not derived revenues from tribal members for that purpose. Tribal governments often take their operating costs out of the common fund derived from tribal revenues from resources held in common by the tribe. Rather than distribute the money, assess a tax, and recollect revenues, they simply appropriate the needed revenues in the first instance. Revenues from resources controlled by the State and Federal governments are treated in much the same way. Because tril>es have chosen to generate revenues dili'erently from most non-Indian governments, this does not in any manner suggest that they lacked the governmental power to tax if they so chose. It would appear, however, that the enactment of taxation provisicms may eventually become desirable if tribes are to continue to undertake ever-increasing functions of governments and if they are to have any hope of quelling the drain of resources from the reservations. At present. States may require Indian merchants to collect State- imposed taxes from non-Indians if such collection is viewed as a minimal burden on tribal self-government.^^^ As a result, tribal enter- prises may lose what is seen by many States as a competitive advantage over non-Indian enterprises. What it also does is limit the scope of economic choices a tribe may make in how best to generate tribal revenues. The tribe may be forced to assess a tribal tax (similar to that of the State) tied to generating revenues to carry out a specific tribal governmental policy endorsed by Congress in its Federal-Indian policy. The cases suggest that the competitive State tax may then create a sufficient burden on tribal self-government {hy frustrating part of its function) as to invalidate the State tax. Such taxation raises the question of the rights of a nonmember of the tribe paying a tax to a government in which that person has no right to representation. Governments generally, however, may tax noncitizens without regard to representation when they are within the territorial jurisdiction of that government. However, where non- Indians live within the boundaries of the reservation and have no hope of ever becoming members of the tribal government, the issue is more difficult. It should be noted initially that the fact that there is no right to participate in the tribal government does not mean that there is no recourse for the nonmember reservation resident. Congress has ex- tended a number of clear limitations on the exercise of tribal powers. Pursuant to Public Law 90-284, no tribe in the exercise of its powers of self-government maj'' deny any person equal protection of the law nor deprive him of liberty or property without due process of law. Judicial interpretation of the Act has uniformly recognized general jurisdiction in the Federal courts to leview civil rights cases,^^^ but required exhaustion of tribal remedies. ^^^ IMoreover, nonmembers may I'T Moe y. Confederated Salish and Kootenai Trilea, supra. "^Dodae V. Xakai. 29S F. Snpp. 26 (D-Ariz. 1969) ; Spotted Eagle v. Blackfeet Tribe, 301 F. Supp. S5 (D-Montana 1969). 188 javis V. Wilson, 521 F. 2d 724 (8th dr., 1975). 180 have speedy review where there is a sliowiiio; that there is no tribal review available or where such revicAv would be f utile.^^° Presumably, tribal governments would also be held to the same standards of "review concerning whether a tax would be discriminatory and/or confiscatory. Any tax assessed and collected from a resident nonmember may have to bear a reasonable relationship to a service provided or available to such resident nonmember. Moreover, any tribe moving into the taxing field would need to construct a govern- mental administrative process to enforce and manage it. It is difficult to imagine that any tribal government would attempt to enact and administer a tax provision without looking into its- relative merits and costs versus benefits. Clearly, they can expect chal- ' lenges to such measures and would not provoke such a situation unless they were legally prepared to meet the occasion. It must be presumed^ as with other governments, that tribal governments will act in a rational and intelligent manner to protect their best interests. Cer- tainly, the history of the tribes is that the}^ do so and will continue to do so. In response to objections wliich have been raised before the Com- mission to the theoretical proposition that many tribes will soon begin to impose discriminatory and unjust taxes upon the property and income of reservation resident non-Indians, it should be pointed out that no tribes presently have done so nor have there been any reports of tribes planning to do so. As has been suggested above, should an Indian tribe provide governmental services, at the direct expenses of its own treasury, which w^ould clearly benefit such a resident non- Indian (e.g., road or irrigation canal maintenance on his fee prop- erty) it would appear to be neither unreasonable nor unfair to require that such an individual share the expense of such a service on a fair, pro rata basis with all residents who may benefit, including tribal members. In relation to potential tribal taxation of commercial activities of nonresident non-Indians or of nontribal industrial enterprises con- ducted on reservations, no discernible difference between tribal gov- ernments and State governments is apparent. The right of a State government to impose a tax upon commercial transactions of non- residents, for example the tourist industry, has never been questioned so long as there is not an interference Avith interstate commerce. A tribal government stands on exactly the same footing. In a similar vein. States have traditionally imposed excise taxes and "right to do business" taxes upon nonresident individuals and corporations and their rights to do so have been well established in the law. That the resident State of such individuals and corporations does not receive any share in the taxing State's revenues has not been viewed as un- constitutional or mifair. A tribe is again on the same footing as the taxing State government. Clearly, the solution to jurisdictional disputes between States and tribes in the area of taxation, as in many other areas involving the exercise o.f governmental powers, lies in the direction of negotiated intergovernmental agreements. The objective of such efforts would be ^'o O'Neal V. Cheyenne River Sioux Trite, 482 F. 2d 1140 (Sth dr., 1973) ; Javis v. WiUon. Bupra. 181 to accommodate the respective interests of both parties in a neutral forum as an ahernative to unsatisfactory and resource-consuming litigation. Invariably such a process involves some give and take with responsible compromises on the part of both parties. A healthy attitude whicli looks forward to tliis logical solution can be found in the state- ment of the Western State Tax Administrators submitted to the Commission : Should the Federal Government recognize tribes as governmental entities with certain attributes of sovereignty, the western Stales believe it would be necessary to stipulate what powers and responsibilities the tribe may exercise and over which persons and territory such powers extend. A simple repeal of Public Law 83-280 is insufficient. It is not a I'ealistic goal at this time in our history to "turn back the clock" to a time when Indian tribes v\"ere sovereign nations and Indian people lived in isolation from non-Indian society. Court actions cannot restore the aboriginal status of Native Americans. What must be found is a way that individual tribal culture can be preserved and self-determination of Native Americans can be pursued concurrent with, not in conflict with that of non-Indian society. The danger in leaving this task imdone is that these questions affecting the very fabric of our Avestern society will be left solely to the courts to decide. If the jurisdictional matters are left to the courts, "normalized" relations between States and the tribes is "out of the question" for a long time to come. Obvious differences remain and a great deal of work must be done to resolve successfully such tribal-State conflicts. In many ways, the key lies in the recognition on the part of many States on the legitimate governmental status of Indian tribes and in the responsible acknowl- edgment of legitimate State governmental interests within Indian countr}" on the part of many tribes. Recommendations The Commission recomTnends that: Congress provide by approprate legislation that lands held in trust for an Indian tribe and assigned to an individual Indian are exempt from Federal taxation and that the income from such lands is also exempt, in the same way that restricted and allotted lands are pres- ently exempt. Congress provide by appropriate legislation that the benefits re- ceived from those programs designed to aid in the economic develop- ment of Indians shall not be subject to Federal taxation. Congress amend the Internal Uevenue Code to provide that pro- visions of the Code which apply to non-Indian governments are to be applied in a like manner and to the same extent to Indian tribal governments. This would include the same benefits enjoyed by indi- viduals in their relations to tribal governments. Congress amend or repeal, as appropriate, those statutes which authorize State taxation which is in conflict with Federal-Indian policy to foster economic development of reservation Indians and enhance tribal self-government. Specifically, State taxation of mineral production on leased Indian lands be repealed or amended. Congress provide by appropriate legislation that State taxation within reservations be invalidated as applied to non-Indians when the burden of such taxation falls directly or indirectly upon the Indian. 182 Congress enact legislation which provides that where an Indian ih tribal government enacts a tax in furtherance of Federal-Indian li policy designed to enhance the tribes' self-governing capacity or tof protect or foster tribal economic development of Indian people or the tribe, such tax will have the effect of preempting any competing State tax which would be applicable to the same person or activity. E. HUXTTXG, FISHING, TRAPPING AND GATHERING RIGHTS The rights of Indian people to take fish and game and gather food are and have historically been an integral part of their subsistence as well as their cultural and religious heritage. In turn they have formed a foundation for their trade and commerce. These rights were widely recognized in treaty negotiations and have been found by the courts to exist even where not specifically reserved in treaties.^^^ The regulation of these resources, so significant to Indian self-sufficiency and survival, has been the subject of much judicial definition. The historical evolution of Federal-Indian relations has placed the exercise of these rights both within and without reservation bound- aries. Within the boundaries of a reservation it is undisputed that Indian people may hunt, fish, trap and gather free from external regulation except where Congress has specifically provided otherwise. Beyond the boundaries the rights are defined by the specific treaty or situational terms under which they were reserved and must therefore be viewed carefully. Conflicts and emotions continue to run high in some areas of the country over Indian fishing rights. There has been a marked unwill- ingness of non-Indian citizens in the State of Washington to accept the rulings of the Federal district court on these rights.^^^ Indian fish- ing rights liave also been identified as the reason for a failing fishery in the Northwest despite specific findings to the contrary.^^^ Of primary concern to all involved is the management and enhance- ment of the resources, both fish and game, to assure that there Avill be sufficient numbers to meet the needs and desires of all concerned. Fed- eral, State, and Indian tribal involvement in a cooperative system is imperative to the ultimate achievement of an orderly and productive management and enhancement of the resources. On-Reservation Bights and Regulation Within the boundaries of an Indian reservation the tribe has the sovereign authority to regulate, restrict, and license huntins; and fish- ing activities. Such authority is exclusive over tribal members so far as it has not been explicitly diminished by treaty or Federal statute. Most tribes do regulate the exercise of hunting and fishing rights and privileges for the protection and preservation of the resources and rights.^^^ «i fiee generallv. n.S. v. VTinan^, 19S U.S. 371 (1904) ; for this doctrine ; Menominee Tribe V. U.fi., 319 U.S. 404 (1968). ^0' !^ee. e.jr., transcript of ATPRC hcarinirs in Portland, Oreg., Sept. 25, 1976; U.S. v. Wnxhinqton, 384 F. Snpp. 312 (W.D. Wash. 1974). ^^^ See "Columbia Basin Salmon and Steelhead Analysis, Summary Report, Sept. 1976". Pacific Northwest Regrional Commission. 19* See e.ff., Hohhs, "Indian Huntinp and Fishin? Rights." 32 Geo. Wash. Lr. Rev. 504. .^23, nn. 100-]01 : State v. McClure, 127 Mont. 534, 268 p. 2d 629 (1954) ; Sol. Op. M 36638 (May 16, 1962). 183 Consistent with the tribe's jurisdiction over its resources and the territory where the harvest takes place, tribal regulation may also be enforced against nonmembers of the tribe as well as members.^^^ These powers may also comprehend the exclusive authority to license non- Indians on the reservation who hunt and fish.^^^ A tribe may be lim- ited in the jurisdiction as to members or to Indians where their own constitutions or governing documents so limit them or wliere treaties or Federal statutes limit their powers or provide for the importation of State laws.^" Absent congressional authorization, States have no authority to regulate or control Indian hunting and fishing within the reservation. Even where Congress has provided for the assumption of some or all civil and criminal jurisdiction by States within reservations under Public Law 83-280, jurisdiction over hunting, fishing, and trapping rights was expressly withheld.^^^ Moreover, it is immaterial whether the lands within the reservation are held in Indian or non-Indian title."^ On the question of hunting and fiishing on the reservation by non- members the trend and generally the better view is that the State has no jurisdiction unless the tribe requires that nonmembers or non- Indians comply with State regulations.^°° This position is further re- flected in Federal legislation which prohibits non-Indian hunting,, fishing, and trapping on Indian reservations absent tribal consent (18 U.S.C. § 1165). Although that law does not contemplate bringing non- Indians under any Federal regulatory scheme, it strongly suggests that tribal regulation is preemptive of State laws.^"^ On those few occasions in which courts have considered attempts at on-reservation regulation by administrative Federal agencies, it has been rejected.^°^ Even where treaties entered into subsequent to the Indian treaty outlawed the taking of migratory birds,-"^ or a Federal enactment prohibited the taking of Bald Eagles, the rights of the on- reservation Indian are undiminished unless specifically curtailed. Ab- rogation of Indian hunting and fishing rights will not be implied into general congressional enactments.^"* The management of these Indian property interests is left to tribal self -government.^°^ In summary, it is fair to conclude that the primary regulatory au- thority within reservation boundaries is the tribal government. This would appear to be true whether the person involved is either Indian or non-Indian. The law on this latter point is, however, not finally settled. Nonetheless, the States continue to question fundamental principles surrounding the exercise of Indian rights even within the reservation. ^^5 Qiiechan Tribe of Indians V. Rowe, 521 F. 2d 408 (9th cir.). (1976). "« Colville Tribe v. State of WasJmigton, No. c-75-146 (E.D. Wash. 1976). '^^ Quechari Tribe of Indians v. Rowe, supra. "^25 U.S.C. 1321-26; 18 U.S.C. 1162(b). '^ Leech Lake Band of Chippewa Indians v. Herbert, 334 F. Supp. 1001 (D.C. Minn. 1971). ''°° See, Quechan Tribe of Indians v. Roxce, supra ; Colville Tribe v. State of Washington, supra; contrast. State v. Danielson, 427 p. 2d 689 (Mont. 1967) ; compare, Donahue v. Justice Court, 93 Ca. Rptr. 310 cert, den., 404 U.S. 990 (1971) where the court held that unless immunized by tribal permission nonmembers were subject to State regulations. ^See. U.S. V. Pullman. 374 F. Supp. 99.5 (1973). 202 Mason v. Sams, 5 F. 2d 2.o5 (W.D. Wash. 1925). 203 United States v. Cutler, 37 F. Supp. 724 (D. Ida. 1941). ">* United States v. White, 508 F. 2d 453 (8th cir. 1974). 200 Ibid. 184 Presently pending before the U.S. Supreme Court is an appeal from a riilinfj of the Washington State Supreme Court that State officers may enforce regulations against Puyallup Indians within their reser- vation boundaries on steelhead fish runs. Such a holding runs contrary to numerous rulings on the issue of State powers over such rights on- reservation.-"^ Moreover, such a ruling may well be a taking of a prop- erty right to the extent it diminishes the ability of the Indian fisher- man to take fish, thus decreasing the value of the right.^°^ Unresolved issues are squarely before the courts and will be deter- mined in the near future. Accordingly, congressional action is prema- ture in this area. Off -Reservation Rights and Regulations : Limits of State Authority The regulation of fish and wildlife resources beyond Indian reserva- tion boundaries is inherently the domain of the various States.-"^ These powers may, however, be overridden by Federal treaty if they would "impair a right granted or reserved by Federal law." ^°^ This is also the case where rights were reserved to an Indian tribe on lands later ceded where their hunting and fishing rights are still preserved.-^" To determine the parameters of State regulatory power over off- reservation Indian treaty rights the particular language of the given treaty or Federal law must be examined.-" It is the construction of the language used which defines the extent and nature of the rights and the kinds of regulation, if any, exercisable by a State. Where treaties have reserved otf-reservation fishing rights "at usual and accustomed places ... in common with the citizens of the terri- tory" the courts have held that State regulation is limited to those situations where it is reasonable and necessary to prevent the destruc- tion of the resource. This "necessity for conservation" standard must be the least restrictive necessary to assure adequate escapement of the fish for spawning ^^^ and are allowed only when preservation cannot be achieved by restriction of nontreaty fishing.-^^ The result is that the State may prevent the destruction of the resource by regulation of treaty fishing only when all other measures are inadequate. Trihal Authority However, where the tribe involved has promulgated their own reg- ulations and has demonstrated the ability to enforce them over their members, the State may not regulate the treaty fisherman. The tribe 2o«E.g., Moore v. TJ.B., 157 F. 2d 760 (9th cir. 1947) ; Leech Lake Band of Chippetca Indians v. Herbert, supra; Arnett v. Five Oillnets, 121 Cal. Rptr. 906 (1975), cert, den., 44 U.S.L.W. 3545 (Mar. 29. 1976). 2"7 Cf. Choate v. Trapp, 224 U.S. 665 (1912). This may be the question somewhat since the State takes the position that the Indians have no right to artificially propagate steelhead which constitute part of the run. ™s Geer v. Connecticut, 161 U.S. 519 (1896). 2W Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1,973). 2ioA»itomev. Washington, '420^.8. 194 (1975). 211 See, e.g. Treaty with the Yalcinas, 12 Stat. 951 ("at usual and accustomed places . . . in common with the citizens of the territory") ; Treaty of Medicine Creek, 10 Stat. 1132 ("the privilege of hunting ... on open and unclaimed lands") ; Treaty with the Walla- Wallas, 12 Stat. 945 ("On unclaimed lands in common with citizens") ; Chippewa Treaty of 1854, 10 Stat. 1009 ("shall have the right to hunt and fish therein, until otherwise or- dered by the president."). -'- U.S. v. Washington, 384 F. Supp. 312 (W.D.W. 1974). =13 U.S. v. Washington, supra. 185 must, of course, adopt those measures shown to be necessary for con- servation and the States may step in where an emergency situation arises without a prior showing of the necessity to the court.^^* It is clear that in this situation the Federal district court has be- come the manager of the resource. No one would posit that such a situation is the most desirable or the most efficient management sys- tem. The reason for this situation was cogently described in the con- currmg opinion of Judge Burns when U.S. v. Washington was af- firmed by the United States Xinth Circuit Court of Appeals : I deplore situations that make it necessary for us (District Court Judges) to become enduring managers of the fisheries, forests and highways, to say nothing of tlie school districts, police departments and so on. The record in this case, and the history set forth in the Puyallup and Antoine cases, among others, make it crystal clear that it has been recalcitrance of Washington State officials (and the local non-Indian commercial and sports fishing allies) which produced the denial of Indian rights requiring intervention by the District Court. This re- sponsibility should neither escape notice or be f orgotten.^^ This language is reminiscent of that delivered by Justice Miller in United States v. Kagama nearly 100 years ago when he wrote : They (the Indians) owe no allegiance to the States and receive from them no protection. Because of local ill feeling the people of the States where they are found are often their deadliest enemies."^" Need for Federal Involveinent Tribal enforcement over members exercising rights off-reservation may be to no avail absent effective State enforcement of nontreaty fisheries. Most of the treaty fisheries in Washmgton, for instance are found in the inland waters by troll and recreational fishing vessels. Federal regulation therefore becomes a prerequisite to any meaningful allocation between treaty and nontreaty inland fishery. Likewise there must be workable regulations pursuant to the International Pacific Salmon Fishery Commission to provide sufficient opportunity for treaty fishermen to take fish. Where a State either fails to provide enforcement to protect the fishery or is unable as a result of its own laws the Federal Government must play a dynamic role. At present there is only minimal Federal enforcement authority. ^\niere it proves to be inadequate the responsi- bility will fall once again upon the beleaguered Federal district court. Congress should act in this area where indicated.^^^ Other off-reservation rights held by Indian people do not carry the qualification that they be shared "in common with" nontreaty users of the resource. In such situations, the rationale for State regulation is lost and has been so held by some courts.-^^ Decisions have also indi- cated that such rights may be subject to State regulation for conser- vation purposes.-^^ There has not yet been a United States Supreme Court review of this issue. ^* Piivalhtp Tribe v. Department of Game, nni U.S. -329 (1068). 215 r.S. V. Washinoton, 520 F. 2d 676, 693 (9th cir. 1975) (concurring opinion). "• 118 U.S. 375, 383-84 (1886). *i" See, "Action is Needed Now To Protect Onr Fishing: Resources," Report to Congress by the Comptroller General of the United States, Feb. 18, 1976. estate V. Arthur, 74 Ida. 231. 261 p. 2d 133 (1053) : State v. Tinno 94 Ida. 639, 497 p. 2d 1386 (1972) ; People v. Jordreau, 384 Mich. 539. 185 N.W. 2d 373 (1971). "8 State V. Tinno, supra. Indicated in the portion of the decision addressing fishing rights that may be so limited; People v. LeBlanc, 55 Mich. App. 684, 223 N.W. 2d 205 (1974), Aff'd 399 Mich. — (decided Dec. 27. 1976). 92-185—77 13 186 The Idaho Supreme Court has recently ruled that aboriginal rights to hunt and fish survive where they have never been extinguished, but that the authority of the State for purposes of conservation remains.^^° SummaTy Although the issue was not addressed in these cases it would follow that the tribes affected would have regulatory powers over their mem- bers. Indian regulation would fulfill goals which cannot be reached by State regulation of the exercise of treaty rights (e.g. allocation of sites and times). Tribal powers therefore provide an important ad- junct to the regidatory scheme. Hunting, fishing, trapping, and gathering rights of American In- dian peoples are an important aspect of their subsistence, economic, cultural, and religious heritage, and were reserved by Indian people in treaties or for them as a part of the lands set aside for their ex- clusive use and occupancy. American Indian hunting and fishing rights have been exclusively litigated and many jurisdictional questions have been answered by the courts. Such litigation has an extensive history reflecting great sums of money spent by Indian tribes and individuals to litigate and relitigate rights guaranteed under age-old treaties and agreements. The hunting and fishing rights of Indian peoples have been frus- trated and in many cases completely cut off due to the exercise of State police powers directed toward Indian people when litigation was pending and in some cases despite favorable decisions to Indian peo- ple. Likewise States have failed in some instances, particularly in Washington State, to enforce fishing restrictions against non-Indian fishermen violating Federal court ordered cessation of fishing. There has been a serious depletion of fish and game resources brought about by the elimination and degradation of fish and wildlife habitat, fish-passage losses at mainstream dams, and rapidly growing use by commercial and sports interests on fish and wildlife resources. Management of the fish and wildlife resources clearly requires the cooperative efforts of Federal, tribal and State authorities in regula- tion of allowable harvests and in stimulation of new resources. Indian tribes have hunting and fishing rights which are an integral part of transitory or migratory resources such as marine fisheries and deer herds as well as rights shared in common with non-treaty users of the resource at off-reservation sites. Many Indian tribes are carrying on substantial enhancement and management effoiis of their own with limited resources and insufficient support from State and Federal entities. Although some tribes have wildlife and fishery biologists and other necessary experts, most require additional personnel and training pro- grams to augment and expand programs and to implement new meas- ures desirable for enhancement and management of the resource. Revenues derived from the harvest of fish and wildlife resources (e.g., licensing fees) on some reservations provide the foundation for significant economic activity for the tribe and its members. ^20 state V. Coffee, No. 12040 (S. Ct. Idaho, decided Nov. 23, 1976). 187 Recom mendations The Cominlssion recommends that: 1. The Department of the Interior aid Indian tribes in the develop- ment of comprehensive management plans for tish and wildlife re- sources. Indian people must be involved in the management of their own trust resources. 2. The executive branch undertake action to stimulate the tribes and States to enter into cooperation agreements in the management, alloca- tion, and enforcement of off-reservation fishing activities by botli In- dians and non-Indians. Such cooperative agreements must recognize the rights of the Indians in the fish resources and their responsibility ill the management and allocation of that resource. 3. Congress appropriate funds necessary to aid individual tribes and intertribal organizations in the development and management of fish- ery programs. •I. Congress enact legislation authorizing the Department of the In- terior (Parks and Wildlife Division) with standby authority to allo- cate fish resources and enforce such allocations as to Indians or non- Indians or both, whenever the States or the tribes fail to regulate those persons under their respective jurisdiction. Federal Constraints on Tribal Government A. the INDIAN reorganization ACT OF 1934 Chapter 1 of the report of Task Force Number Two sets forth an extensive discussion of the relation of the Department of the Interior to tribal government. The relationship of that Department, or the Bureau of Indian Affairs, in political matters is a nagging and con- tinual problem. These problems surface in a number of settings: (1) Secretarial involvement in election disputes; (2) Secretarial involve- ment in ratification and approval of tribal amendments to constitu- tions and bylaws; (3) Secretarial involvement in review and approval of ordinances or laws adopted by tribal councils; and (4) ultimately, the claimed authority of the Secretary to revoke tribal constitutions which were not adopted under the Indian Eeorganization Act and thus eft'ectively suspend tribal government. There are five basic sources of authority which the Secretary invokes as support for these basically political decisions : (1) Sections 2 and 9, title 25 of the U.S. Code which vest the management of Indian affairs in the Commissioner of Indian Affairs and authorize the President to prescribe such regulations as he might think fit for carrying into effect the various provisions of Acts of Congress relating to Indian affairs; (2) section 16 of the Indian Eeorganization Act of 1934 ^^^ which authorized Indian tribes to reorganize under that Act and adopt con- stitutions and bylaws subject to approval of the Secretary; (3) the general trust responsibility, particularly as exemplified by section 81 of title 25 restricting the rights of contract with relationship to trust assets ; (4) the judicially established guardian- ward relationship ; and (5) powers of review and approval vested in the Secretary by tribes 221 25 U.S.C. 476. 188 which, adopted constitutions pursuant to the Indian Reorganization Act. As noted by Task Force Number Two, the Federal officials have in the past exercised heavy-handed control over the day-to-day opera- tions of tribal government.^^^ In 1934 when the Indian Reorganization Act was enacted, some degree of regulatory supervision may have been .iustified. Many tribes were moving for the first time to a constitutional mtrm of government. But, the tribes have now had 40 years of experi- ence in the operation of their governments. And, the enactment of title II of the Civil Rights Act of 1968 with its broad procedural safe- guards for persons affected by the actions of tribal governments con- tradicts the need for the pervasive administrative control which has so often characterized the relation of the tribes to the Department of the Interior. The right and power of Indian tribes to form their own govern- ments exist independent from Federal statute. This was well-recog- nized at the time the Indian Reorganization Act was enacted.^^^ But, due to the Federal policies which had been pursued in the latter half of the 19th century and the first half of the 20th century, many of the traditional instruments of tribal government had been drastically weakened and some lost for good. This was recognized by Congress when it included section 16 of the IRA authorizing tribes to organize under that Act if they elected to do so. It is ironic that this Act, which was intended to strengthen the governments of Indian tribes, is now generally regarded by the Indian people as an impediment to their governmental functions. The Act itself presents certain problems since it requires that the constitutions and bylaws adopted by tribes pursuant to the Act be ratified and approved by the Secretary. But, more significantly, much of the authority of the Secretary to pass upon the validity of tribal enact- ments stems from provisions of constitutions which tribes adopted pursuant to the Act. These provisions, taken from a "model" con- stitution drafted by the BIA after passage of the 1934 Act, commonly provide that the laws adopted by the tribe shall not take effect until such laws have been reviewed and approved by the Secretary, This review process has been generally condemned as perpetuating a paternalistic relationship between the Department of the Interior and tlie tribes. Paternalism aside, it has also impeded tribes in their -effoi'ts to assert authority within reservation boundaries through the rsimple expedient of a Secretarial veto of tribal ordinances which he -conceives as being beyond the power of a tribe. Thus, for years, the Department denied that tribes could exercise any jurisdiction over non-Indians even though there was no clear statute and no judicial decision to affirm the Department's position.^-* The efforts of the Colville Tribe to impose a water use code within the boundaries of their reservation was thwarted by the refusal of the Secretary to approve their proposed code.^^^ In a most extraordinary case, the Coeur dAlene Tribe was denied permission to enact a code provision regulating the playing of an Indian stick game within their reser- 2=2 Task Force No. 2 Report, p. 13. 2" Sol. Op., Oct. 25, 1934, 55 I.D. 14 at 30-32. 2'* Sol. Op. 17-36810 dated Auf?. 10, 1970. '^ This problem is now in litigation. 189 vation even though a Federal court had held that the playing of the game was not within the purview of Federal law. In this case, De- partmental veto of the tribal ordinance was instigated at the request of the Department of Justice.^-^ Aside from problems relating to Secretiarial review of tribal ordi- nances, on at least two occasions the Secretary had claimed the authority to revoke outright the constitutions of tribes which had' not organized under the Indian Reorganization Act. Thus, in 1961,- the Secretary of the Interior withdrew recognition of the 1927 con- stitution and bylaws of the Fort Peck Council on the authority of 25 U.S.C. 2, stating that in his opinion such action was in the best interests of the Indians involved. The legal opinion upon which the Secretary based his action carefully stated that his action was not based upon any ''trustee" relationship (which the opinion notes is founded in property) but rather on the "guardian- ward" relation- ship.^" In 1972, the Commissioner of Indian Affairs withdrew his recog- nition of the 1932 constitution of the Prairie Band of Pottawatomie Indians, again on the authority of 25 U.S.C. 2. A complaint filed against the Commissioner of Indian Affairs in Federal district court was ultimately dismissed for lack of subject matter jurisdiction. It was not until mid-1975 that a new constitution was adopted by the tribe. In the meantime, the affairs of the tribe were handled by a spokesman appointed by the Bureau of Indian Affairs without any apparent legal authority.^^* During the course of the Commission's investigative studies, Indian people have related scores of instances wherein the BIA has flagrantly violated not only its mandated role, but the basic principles of the United States trust responsibility. These practices of the Bureau of Indian Affairs are in clear violation of Federal policy and should be halted immediately. Tribal governments must have mechanisms to insure that the Bureau of Indian Affairs upholds the trust respon- sibility of the Federal Government. Tribal governments must and should have equitable remedies to prevent further unwarranted BIA interference in the operations of tribal governments. Data gathered by this Commission over the last year is testimony to the fact that the Bureau of Indian Affairs has acted directly to undermine tribal governments,^^^ and has refused the technical, legal, and financial assistance it is mandated to provide. Special allegations witness the Bureau of Indian Affairs: 1. directly interfering in tribal elections.^^° 2. usurping one of the most basic powers of self-government — - the right to determine membership, by conditioning BIA funding on BIA-determined membership qualifications.^^^ -« Lettpr dated Apr. 20. 1967 from Acting Apst. Sol. to Commissioner of Indian Affairs. See app. IT. part IT. ex. .5 of Task Force No. 9 report. ^ Sol. On. IA-1229 dated Jan. 19, 1961. to Secretary of the Interior. 2^'' Task Force No. 9 report, app. II, part I. ex. 2. 2» Tribal Government Task For'-e F'eld Consultant Report on Standing Rock Sionr Standincr Tock Reservation, p. ?> : Tribal Government Task Force Field Consultant Report on Chevenne River Slo'.ix. Chevenne River Reservation, p. .3. =3" Bureau of Indian Affairs Support for the Functions of Tribal Government. Case Study of Pine Ridse Reservation ; Special Report to the Tribal Government Task Force, American Indian Policv Review Commission, pp. .32-.3G. =31 Tribal Government Task Force Fielil Consultant Report on Cheyenne River Sioux. Cheyenne River Reservation, p. 11 ; Tribal Government Task Force Field Consultant Report on Fort Berthold Reservation, p. 9. 190 3. playing off one tribe against another in competition for funding.^^^ 4. conditioning BIA funding or delivery of services on the level of cooperation between tribal members and agency or area office employees.^^^ 5. failing to respond to tribal requests for legal assistance.-^* 6. failing to respond to tribal requests for financial assist- ance.^^^ 7. failing to respond to tribal requests for technical assist- ance.^^^ 8. failing to assist tribes in asserting their sovereign powers.-^^ 9. entering into leases or contracts on behalf of the tribe with- out tribal approval.^^® 10. specifically acting to diminish tribal exercise of powers of self government.^^^ 11. terminating tribal employees from area office without noti- fication to tribe.^*" 12. allocating judgment funds without approval of tribal council.^*^ 13. displaying nepotism and favoritism in agency office hiring practices.^*^ 14. withholding information on tribal trust resources from tribe.243 15. advisins: tribal members to sell their land to qualify for State welfare.^" 16. failing to act upon tribal requests for Secretarial approval of contracts.^*^ ssaihicl.. p. 11. *^'' Trlhnl Onvprnment Task Force Field Consultant Report on Fort Berthold Reservation, p. 9 ; Tribal Government Task Force Field Consultant Report on Ulntah-Ouray Reserva- tion, p. 5 : Tribal Government Task Force Field Consultant Report on Northern Cheyenne Reservation, p. 5 : et nl. 2-'-* American Indian Policv Review Commission public hearings conducted by Task Forces 3 & 4. Superior, Wis. : :Mar. 10-20. 1976 ; II, p. 21 ; Tribal Government Task Force Field Consultant Report on Pala Reservation, p. 1 ; ,Tribal Government Task Force Field Consul- tant Report on Zuni Reservation, p. 2. 235 Tribal Government Task Force Report on Santa Rosa Rancheria, p. 4 ; American In- dian Policy Review Commission Public Hearings conducted by Task Forces 2 & 4 ; Phoenix, Ariz. : .Tune 2-3, 1976 ; pp. 104-106. 238 American Indian Policv Review Commission Public Hearings conducted by Task Forces 1. 3 and 4; Yakima, Wash. : Feb. 4, 1976: p. 42S ; Tribal Government Task Force Report on Fort Berthold Reservation, p. 9 ; American Indian Policv Review Commission Public Hearings conducted by Task Forces 2 and 4 ; Phoenix, Ariz. ; June 2-3, 1976 : pp. 104-106; Tribal Government Task Force Report on Rocky Boy's Reservation, pp. 2-4 ; Tribal Govern- ment Task Force Report on Laguan Pueblo, pp. 7-8 ; Tribal Government Task Force Report on Northern Cheyenne Reservation, p. 7 ; Tribal Government Task Force Report on Pala Reservation, p. 2. ^^ Tribal Government Task Force Report on Quinault Reservation, p. 6 ; Tribal Govern- ment Task Force Report on Rocky Boy"s Reservation, p. 2. 23S Tribal Government Task Force Report on Uintah-Ouray Reservation, p. 1. 239 Tribal Government Task Force Report on Seneca Nation, Allegany Reservation, p. 3; Tribal Government Task Force Report on Makah Reservation, p. 6 ; Tribal Government Task Force Report on Fort Berthold Reservation, p. 5 ; Tribal Government Task Force Report on Cheyenne and Arapaho Tribes of Oklahoma, p. 2 ; Tribal Government Task Force Report on Quinault Reservation, p. 5 ; Tribal Government Task Force Report on Standing Rock Reservation, p. 3. 240 Tribal Government Task Force Report on Northern Cheyenne Reservation, p. 8. *'i American Indian Policy Review Public Hearings conducted by Task Forces 2 and 4 ; Phoenix-. Arizona ; June 2-3, 1976 ; p. 135-136. 242 Tribal Government Task Force Report on Fort Berthold Reservation, p. 9. 243 Tribal Government Task Force Report on Quinault Reservation, p. 6. 2" Trilial Government Task Force Report on Creek Tribe of Oklahoma, p. 5. 243 Tribal Government Task Force Report on Navajo Reservation, p. 5-6 ; Tribal Govern- ment Task Force Report on Makah Reservation, p. 6 ; Tribal Government Task Force Report on Northern Cheyenne Reservation, p. 3. 191 17. failing to act upon tribal requests for Secretarial approval of tribal constitutions, constitutional amendments, ordinances, resolutions, charters.^*^ 18. mismanaging tribal trust assets and resources.^*'^ 19. obstructing tribal negotiations with Federal agencies.-*^ 20. discouraging tribes from contracting Federal programs which would obviate Bureau services.-*^ 21. distributing Federal program moneys in an arbitrary man- ner, relying upon the broad discretionary power of the Secre- tar}'.23o ^ These problems are further compounded by the fact that tribes have no effective remedy to counter them. Tribes are beholden to the Bureau for technical assistance, most services, and financial support. They are confronted with an administrative structure that takes care of its own — Bureau employees fear the accomplishment of Indian preference within the Bureau.-^^ This condition works to prevent the disclosure of error or malintent, and frequently acts to eliminate virtually any possibility of tribal redress of grievances. Tribal requests for assist- ance are not responded to. Tribal requests calling for the transfer of an agency superintendent or area director are ignored.-^- Tribal evalu- ation of services rendered by the Bureau is, in many places, nonexist- ent. Thus, the transgressions of the Bureau continue to flourish in a bureaucracy which is not accountable nor responsive to Indian people. To remedy these serious problems, the Commission calls for sub- stantial amendment of the Indian Reorganization Act and the provi- sions of 25 U.S.C. sec. 2 which vests the management of Indian affairs in the Commissioner of Indian Aiffairs, and sec. 81, which restricts the right of contract regarding Indian trust property. In addition to amendment of section 16 of the IRA (25 U.S.C, sec. 476) . it appears other protective provisions relating to land protection and acquisition, etc., of that Act should be extended to all tribes without condition upon their acceptance or rejection of the Act. This recommendation is premised on the finding of Task Force Number Two that there is practically no discernible difference in the treatment or relationship of IRA tribes and non-IRA tribes to the Federal trustee. =*« Tribal Government Task Forre on Laguna Pueblo, p. 2 ; Tribal Government Task Force Force Report on Fort Berthold Reservation, p. 4 : Tribal Government Task Force Report on Pvramid Lake Paiute Reservation, p. 2 ; Tribal Government Task Force Report on Uintah- Oiirav Reservation, p. 4 ; Tribal Government Task Force Report on Creek Tribe of Oklahoma, p. 3. ' 2<" American Indian Policv Review Commission Public Hearings conducted by Task Forces 2 and 4 : Phoenix, Arizona ; June 2-.S. 1976 : p. 221-222 : Tribal Government Task Force Report on Northern Chevenne Reservation, p. .3-4 ; Tribal Government Task Force Report on Standiucr Rock Reservation, p. 7 : Tribal Government Task Force Report on Navajo Reserva- tion, p. .5-6 : Tribal Government Task Force Report on Makah Reservation, p. 6 ; Tribal Government Task Force Report on Zuni Reservation, p. 8. 2« Interview with Officer of Intergovernmental Relations and Regional Operations Divi- sion. Office of Manajreraent and Budget ; July 9, 1976 ; Tribal Government Task Force Report on Makah Reservation, p. 9. 2« Interview with Officer of Intergovernmental Relations and Regional Operations Divi- sion. Office of Management and Budget : July 9. 1976. 230 Tribal Government Task Force Report on Comanche Tribe of Oklahoma, p. 6. -^ Bureau of Indian Affairs Management Study : Section 2 Study Provision : Report on BIA Management Practices to the American Indian Policy Review Commission ; September, 1976 : p. 34. ^- Tribal Government Task Force Report on Northern Cheyenne Reservation, p. 5. 192 RecoQnmendations The Commission recommends that: 1. Section 18 of the Indian Eeorganization Act (25 U.S.C. 478) which provides that no part of that Act shall apply to any reservation wherein a majority of the adult Indians vote against its application should be repealed. In its place Congress enact a savings clause to provide that the rights of any tribe which has organized under the terms of section 16 of the Act or formed a corporation under section 17 of the Act will not be adversely affected. To accomplish this result the Commission recommends the following specific legislative actions : {a) Repeal section 18 of the IRA which reads as follows: This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after June 18, 1D34, to call such an election, which election shall be held by secret ballot upon thirty days' notice. {h) Insert in place of this section the following language : The rights of any Indian tribe which has chosen to organize under sections 16 and 17 of the Indian Reorganization Act shall not be affected by this repeal. 2. Section 16 of the Indian Reorganization Act (25 U.S.C. 476) which authorizes tribes to organize under the provisions of that Act be amended : ( 1 ) to reflect specifically the fact that tribes have an in- herent right to form their own political organizations in the form which they desire; and (2) to provide that notwithstanding any pro- visions in existing tribal constitutions which vest the Secretary with authority to review and disapprove ordinances enacted by the tribal government shall only extend to those matters directly related to the trust responsibility over the use and disposition of trust assets. How- ever, those tribes who wish to retain such authority on an interim basis shall be authorized to do so. To accomplish this result the Commission recommends amendment of section 16 of the IRA along the following lines: The right to choose their natural form of government is the inherent right of any Indian tribe. Amendments to tribal constitutions and bylaws adopted pur- suant to the Indian Reorganization Act shall be ratified and approved by the Secretary to protect the trust assets and resources of the tribes. In addition to all powers vested in any Indian tribe or tribal council by exist- ing law, said Indian tribe shall also be recognized to have the following rights and powers : To employ legal counsel, to prevent the sale, disposition, lease, or encumbrance of tribal lands, interest in lands, or other tribal assets without the consent of the tribe ; and negotiate with the Federal. State and local govern- ments. The Secretary of the Interior shall advise all Indian tribes and/or their tribal councils of all appropriation estimates of Federal projects for the benefit of the tribe prior to the submission of such estimates to the Office of Management and Budget and the Congress. Notwithstanding the provisions of any existing tribal constitution or similar document which vests authority in the Secretary to review and approve or dis- approve proposed actions of said Indian tribes, the Secretary's authority over Indian tribes will only extend or be directly related to the trust responsibility over the use and disposition of trust assets. However, any Indian tribe which may desire a continuation of their presently existing delegation of authority to the Secretary is hereby authorized to do so. 3. Section 2 of title 25, U.S. Code, be amended to provide that the authority of the Secretary of the Interior over tribes shall only extend 193 to actions relating to protection of tribal trust assets. Within these limits, whenever the Secretary finds it necessary to disapprove a pro- posed tribal initiative, he must file a written statement with the tribe notifying them of the reason for his disapproval of their proposed action and atford them an opportunity for a hearing. That section 81 of title 25, U.S. Code, should be amended to accom- plish a result similar to that proposed above, i.e., that whenever the Secretarj' shall disapprove any proposed contract dealing with trust assets, he shall provide the affected tribe or person with a written statement of his reasons for disapproval and provide them with an opportunity for a hearing. To accomplish these results the Commission recommends amenda- tory language along the following lines : (a) That 25 U.S.C. 2 be amended to include the following language : The authority of the Secretary of Interior over Indian tribes shall only extend to those actions deemed necessary to protect tribal trust assets and resources. In any action which the Secretary finds it necessary to disapprove a proposed tribal government initiative, the Secretary shall take such action within 60 days of having been oflBcially notified of the proposed tribal action by the Indian tribal government and any disapproval of the proposed tribal action shall be accom- panied by an opportunity for a hearing on the part of the tribe, and the Secre- tary's decision shall be based on written findings of fact which shall specify the reasons for his disapproval. (b) That 25 U.S.C. 81 be amended in the following manner: The third paragraph beginning "second * * *" shall read: It shall bear the approval of the Secretary of the Interior and Commissioner of Indian Affairs endorsed upon it. The Secretary of the Interior and the Com- missioner of Indian Affair shall disapprove any such proposed contract only after finding that the proposed contract shall endanger the trust assets or re- sources of the tribe or individual Indian. Such findings shall be submittted to the proposed tribe and/or Indian in written form specifying the exact reason for disappproval. 4. Additional legislation be enacted to authorize tribes to override Secretarial disapproval of their proposed use of trust assets. Such an override must be coupled with a waiver of liability on the part of the United States to the limited extent that the override may result in loss. Legislation be enacted that if the Secretary disapproves a tribal government initiative, a contract or other tribal action involving the use or disposition of a trust asset, the tribe shall be entitled to over- ride such Secretarial disapproval using the following procedures : (a) The Secretary shall supply the tribe with a detailed statement of the reasons for his disapproval of their proposed use or disposition of the trust asset, specifically setting forth the loss he believes may result from such tribal proposal. (h) After due consultation between the representatives of the tribe and the Secretary or his representative, the tribal council may, by formal resolution, elect to override the disapproval of the Secretary. Such resolution must contain a specific waiver of liability on the part of the United States for losses which may result as a direct result of the tribal override. (c) In the consultation process the Secretary shall be held to the highest standards of care and good faith consistent with the principles 194 of common law trust in advising the tribes of the potential conse- quences of tlie proposed tribal decision. {d) A tribal override of a Secretarial disapproval shall not di- minish the trust character of the asset in question. The trust responsi- bility of the United States to aid tlie tribe in the implementation of their decision and to protect the future well-being of the asset shall continue undiminished. {e) In any case in which the Secretary has reasonable cause to be- lieve that the decision of the tribal government may not reflect the will of the majority of the members of a tril>e he shall (may) require a referendum of the tribal members, the expense of which shall be borne by the United States and not tlie tribe. (/) In the event the Secretary determines that a tribal resolution should be put to a referendum, he must notify the tribal council within 30 days of the passage of their resolution, and he must call for such referendum vote not more than 45 days after tendering such notification. B. THE ASSERTION AND IMPLEMENTATION OF FEDERAL CRIMINAL JURISDICTION Within the Indian country, there are at least three jurisdictions: tribal, State and Federal. Because Federal statutes in Indian country are preemptive and far reaching, they are discussed separately to assess their impact and effectiveness. Federal Criminal Statutes (1) Jurisdictional Overview There is a patchwork of criminal jurisdiction within the Indian country ^^3 ^yhidi has evolved as a result of Federal enactments and case law exceptions. The first extension of Federal criminal jurisdic- tion into the Indian country is presently embodied in the enactment of the General Crimes Act, 18 U.S.C. 1152. That Act applied all Fed- eral offenses to the Indian country except for: (1) offenses between Indians; (2) where an Indian has already been punished under tribal law; or (3) where exclusive jurisdiction over a particular offense has been reserved by treaty. When a Sioux Indian killed one of his tribal fellows in 1881 and was punished by his tribe, the United States Supreme Court held that the Federal Government could not also punish him as it lacked the jurisdiction to do so.^^^ Congress responded by passing the Major Crimes Act, 18 U.S.C. 1153, providing for Federal jurisdiction over certain enumerated serious crimes committed by an Indian against any other person. There are presently 14 such enumerated crimes. During the same period, the Supreme Court decided the first in a series of cases holding where a non-Indian commits a crime against another non-Indian within the Indian country, the local state has exclusive jurisdiction over the offense. 2S3 Ar definerl in 18 U.S.C. 1151. ^^* United States v. McBratney, 104 U.S. 621 (1881) ; Draper v. United States, 104 U.S. 240 (1896) ; and New York ex rel. Martin v. Ray, 326 U.S. 496 (1946). 195 This matrix of jurisdiction was further supplemented bv the Su- preme Court in 1946 when it decided that the Assimilative Crimes Act, 18 U.S.C. sec. 13, was applicable within Indian country via the General Crimes Act."^^ Although the clear implication of such an application would appear to limit application of the Assimilative Crimes Act to those sorts of crimes contemplated in the General Crimes Act (i.e., violent crimes, not moral laws or victimless crimes), there have been situations where the Assimilative Crimes Act was used against Indian persons within Indian country for violations of State morals or regulatory laws.^^^ It must be conceded that the Assimilative Crimes Act as applied by the General Crimes to Indian country fills a void where Federal laws are not otherwise complete. However, where this application is used by U.S. Attorneys to regulate bingo, or firecracker sales, the application has gone beyond the scope of the General Crimes Act and imposes an unwarranted intrusion of State morals or regulatory laws on Indian tribes and individuals. The Department of Justice has chosen to follow the rationale which is least consistent with Indian sovereignty and allows for the greatest importation of State laws onto the reservation.-" Actual prosecution, of course, depends upon how willing U.S. Attorneys or their deputies are to prosecute indi- vidual cases. Such a situation does not lend itself to uniform applica- tion or evenhanded enforcement.^^^ The resultant jurisdictional pattern emerges. Except for offenses which are i)€culiarly Federal in nature, the general criminal jurisdiction of Federal courts in Indian country is founded upon the General Crimes Act (18 U.S.C. sec. 1152) and the Major Crimes Act (IS U.S.C. sec. 1153). The General Crimes Act extends to the Indian country, all of the Federal criminal laws applicable in Federal enclaves, including the Assimilative Crimes Act (18 U.S.C. sees. 7 and 13), and under this statute, the Federal courts may exercise jurisdiction over offenses by an Indian against a non- Indian and offenses by a non-Indian against an Indian. This statute (18 U.S.C. see. 1152) does not extend to offenses committed by an Indian against the person or property of another Indian nor to an Indian committing any offense in Indian country who has been punished by the local law of the tribe, and because of the exception carved out by the McBratney and Draper decisions, it does not extend to offenses by non-Indians against non-indians.^^° Major Crimes Act Although the Federal Government acquired jurisdiction to prose- cute enumerated serious crimes, there is some question as to whether that jurisdiction is exclusive or is concurrent with the various tribes.^^" The issue has never been specifically tested although those cases re- ferring to the point in dicta have largely assumed the exclusive juris- diction of the Federal Government. The earliest such case is United States V. Whaley, 37 F. 14 (C.C. S.D. Calif., 1888) which was decided 2- Willinms V. U.S., 327 U.S. 711 (1946), footnote 3. 2^«See, U.S. V. Sosseur. IRl F. 2d 873 (7th Cir. 1950) : fconviction of an Indian for oper- ating a slot machine) : Contra, ?/..?. v. Pakootas, No. 4777 (D. Ida., N.D. 1963) (Acquittal of Indians partioipatinfr in a gambling game). 2=" 'Report ( f Task Force No. 4. pp. 40-42. '^^ See. Justice and the American Indian: "Federal Prosecntion of Crimes Committed on Indian Reservations" (1974) vol. 5, Report by the National American Indian Court Judges Association. 258 P. Taylor. "Criminal Jurisdiction," Manual of Indian Law AILTP, 1975. 2»» See Report of Task Force No. 4, pp. 34-47. I 196 by the trial court concerning whether a guilty plea should be accepted for manslaughter as opposed to requiring trial for first degree murder. The defendants j)ursuant to orders from the tribal counsel, had exe- cuted a tribal medical man for poisoning several tribal members. Tlie court never addressed the lack of jurisdiction of the tribe to order the execution, but must have assumed such was the case in accepting the manslaughter plea. Whaley is, therefore, a very weak authority on the issue of whether the ISIajor Crimes Act withdrew tribal jurisdiction and it does not appear that it was ever cited in any subsequent case for the proposition. Subsequent cases have commented' on the withdrawal of tribal jurisdiction over the enumerated major crimes and have uniformly indicated in dicta that such was the case.^^^ juikewise, the legislative history of the Major Crimes Act, taken together with other Federal jurisdictional acts, indicates that it was the intent of Congress to overcome an inhibition on Federal powers, not to limit tribal powers. Congress was responding specifically to the holding in Ex Parte Crow Dog, 190 U.S. 556 (1883) that the Federal forums were foreclosed and the tribe had exclusive powers. Moreover, the lack of express congressional language taken with well-accepted canons of construction concerning Indian rights would mitigate in favor of a finding of concurrent jurisdiction.-°- It is fair to conclude that there is some question in the area which is susceptible to congressional clarification. Because of the needs of In- dian connnunities which will be discussed below, it is suggested that clarification take form in favor of concurrent jurisdiction. Major Crimes Enforcement Of these reservations where States have not undertaken criminal jurisdiction pursuant to Public Law 83-280, United States attornej^s w^ere responsible for prosecuting violations of the Major Crimes Act. Eighty percent of the Indian cases presented for prosecution are declined by the office responsible for their prosecution. Thus, the primary, if not sole, source of major crimes enforcement available to these reservations declines to prosecute 4 of eveiy 5 cases brought before it. The effect is devastating, the reasons and considerations are manifold. There can be no discernible standards against which any decision to prosecute or decline can be measured. Decisions are rarely reported back to tribal officials or police. Prosecutors rely heavily upon agents of the FBI to the exclusion of the BIA and tribal law enforcement officers. Those closest to the communities and to the scene of any alleged crime are the BIA and tribal police. They are usually first on the scene, and are most proximate in the investigation and in apprehen- sion of the perpetrator. However, where the FBI agent is the only one who can successfully present a case to the prosecuting U.S. attorney, local officers are usually faced with preserving the scene of the crime for an entire reinvestigation by the FBI agent. Time frames awaiting the arrival of an agent may span from hours to days. Clearly, the hallmark of such a situation is cooperation. No set of regulations or guidelines can obtain the same result. This atmosphere ^ See Iron Crow v. Oplala FHoux Trihe, 129 F. Siipp. 15 (W.D.S.D., 1956 aff'd. 2"1 F. 2d 89 (Rth cir., 195fi) U.S. V. LaPlant, 156 F. Supp. 600 (D. Mont., 1957) ; Glover v. U.S., 219 F. Supp. 19 (D Mont, 1963) ; Sam v U.S., 385 F. 2d 213 (10th dr., 1967). 28a For an extensive discussion sf this matter, see Task Force No. 9, app. II, part V, ex. 3. 197 of mutual respect includes the FBI a^ent as well who was described in testimony at task force hearino;s as bein• AIPRC Task Force 4 report, p. 25. 2»s Ibid. ^ Snpra note 17. S. 2010 hearings, at p. 110. 300 AIPRC Task Force hearings. Testimony of Richard Balsiger, Montana transcript, at s<^ Supra note 17, S. 2010 hearings, at p. 12. 206 The support for retrocession as reflected in S. 2010 or as a general" proposition is not limited to tribes in States where Public Law 280 has been operative. Frank Tenorio, Secretary-Treasurer of the All Indian Pueblo Council, expressed such support in the following manner : Public Law 280 has no effect on any Indian tribes in New Mexico unless a tribe wishes to allow the State such jurisdiction. But even though the tribes of New Mexico enjoy all the power of self-government, it is still important to them that the strength of self-government depends in part on the exercise of governmental powers by all Indian tribes. This insures generally applicable case law and con- sistent legislation. The efforts of the two national Indian organizations, in con- cert, along with Indian out-put throughout the nation has come out with legisla- tion that is the Indian position.^"^ Non-Indian Opinion While there is little diversity of viewpoint among the tribes concern- ing whether Public Law 280 should be subject to tribally initiated' retrocession, the divergence among the non-Indian community is' extreme. On one side of the issue are some non-Indians, man}' of whom have economic interests on or near reservations, who are ex- tremely vocal in opposing any removal of state jurisdiction from' Indian reservations. The argument favoring the retention of Pul^lic Law 280 and perhaps extending more State control over Indian reser- vations is intimately intertwined, with the notion that Public Law 280 somehow precludes tribal jurisdiction generally and jurisdiction over non-Indians specifically. The major concern therefore appears to be the "the threat" of Indians exercising some control over the behavior and economic interests of non-Indians on Indian reservations. lit extremis, this viewpoint argues for the destruction of reservations- and the termination of tribal governmental identity. Somewhere iiu the middle of the spectrum of views on Public Law 280 are non-Indian persons, as well as some Indian persons who simply wish to see the jurisdictional confusion settled once and for all. Some of these people reject the idea that Indian and non-Indian governments cannot con- currently operate, and reject the notion that government efficiency requires one or the other to have sole control, particularly in the area of land use control and planning. At the other end of the spectrum appear to be some non-Indians who, as a matter of social philosophy or practical experience, favor the total repeal of Public Law 280. Those non-Indian persons, as well as some Indian persons who' support Public Law 280 and oppose retrocession in any form argue' that retrocession : * * * will be violating our rights guaranteed by the Constitution and Bill of Rights. Specifically you (Congress) will be recognizing a sovereign Nation within the confines of the continental United States, the very heart of tiiis great country, and in the Bicentennial year at that.""^ The major constitutional right that they believe will be violated is that non-Indians are generally prohibited from participating^ through the voting franchise, in the tribal government. This situation is complicated by the demography of some Indian reservations, the 302 Ibid, at p. 139. 3°3 Senate Indian Affairs Subcommittee hearings on S. 2010, Mar. 4 and 5, 1976, part 2, at p. 565. 207 strongest opposition to the exercise of tribal authority appears to come from those areas where Indians have their reservations. The above quote is from a resident of Thurston County, Nebraska, wliich is totally encompassed by either the "Winnebago or Omaha Reservations. Another reason for some opposing retrocession is the view that reservations were to be transitional entities and that tribes should be terminated. This argument as with many termination or assimilation- ist positions is phrased as an argument for extending ''full citizen- ship'' to individual Indians. Coupled with these arguments is the belief that being subjected to tribal jurisdiction ^°* will both preclude fair justice and d.efeat Indian- non-Indian conflict. A non-member has a distinct fear that his authority and power to impose fines and penalties upon the non-member would be used as profit-raising and engendering the situation where the fine that they paid into the tribal courts- would be distributed out into the pro rata annual payment. I think this fear is well-founded. I don't know that it would be applied. But I do know this, that if S. 1328 or its companion S. 2010 or any of an allied type bill is passed, that * * * it would engender a situation that would make Wounded Knee look like a base- ball game.^ Mrs. Elizabeth Morris, treasurer of the Quinault Property Owners Association most of whose members live within the boundaries of the Quinault reservation over which partial jurisdiction has been retro- ceded, testified that fee patent owners on the reservation opposed retrocession because of the economic uncertainty and hardship it has caused. Mrs. Morris and others in the several Public Law 280 States placed the blame for their problems on the Federal Government. Testimony is replete with references to being misled ^°® when they or their ancestors purchased land within the boundaries of Indian reservations or re- servations that would soon be terminated. Others who apparently knew that they Avere locating in Indian country seemingly had no^ factual or legal idea as to what that meant. Other persons who tend to be somewhat less vocal or emotional in their view, but who oppose retrocession or the removal of State juris- diction, seem to focus on the jurisdictional ambiguities that they be- lieve retrocession would cause. Fred ISIutch, the mayor of Toppenish, "Wash., a predominantly non-Indian community located within the ex- terior boundaries of the Yakima Reservation, opposed the removal of State jurisdiction, citing the developing system of concurrent tribal State-city-county jurisdiction as not being perfect but preferable to the situation some 20 years prior. The mayor of Palm Springs, Calif., which has been in continual land use jurisdictional disputes with the Agua Caliente Band,^'^' op- posed removal of jurisdiction on the basis that only one government could, within the same geographic boundaries, provide the land use planning and zoning necessary to the economic vitality of the city of 30i Public Law 2S0 or retrocession neither removes nor grants tribal jurisdiction over non-Indians. »* AIPRC Task Force hearings. Testimony of F. L. Ingraham. South Dakota transcript, at p. .36. ^ Ibid, at p. 113. 80" AIPRC Task Force hearings. Testimony of BiU Foster, Southern California transcript, vol. 1, at pp. S1-S3. 208 Palm Springs, and that sliould be the municipal government of the city of Palm Springs, representing all interests and having expertise. . The notion that tribes will not respect the environment and will be- irresponsible in the exercise of jurisdiction permeates the views of ' others : Theoretically at least, it would be possible to have installed in the finest res- idential area of a city a meat packing plant, glue factory or something of this nature. '°^ And, finally, there are those non-Indians who support retrocession unabashedly; interestingly, they cite the same adherence to basic American principles as do those persons opposing tribal jurisdiction. It is inconceivable to me that any nation be denied the right to self-determina- tion, and in fact, it is still being denied here. We espouse liberty, yet we deny liberty * * *. It is imperative in this Bicentennial year that we reaffirm the principles that have made this Nation a leader among nations. * * * on a more practical vein it is essential that jurisdiction be returned at least to the Confederated Tribes of the Umatilla Indian Reservation. Our country consists of 3,200 square miles and our reservation is some 285,000 acres. Vv^ithin these vast areas state and county law enforcement simply cannot pro- vide the protection it ought to be providing. This applies both to the Indian and to the non-Indian living or passing through the reservation. Every law enforce- ment official in Umatilla County is aware of these problems and most of them have taken the opportunity to wholeheartedly endorse a return of jurisdiction to the Confederated Tribes.'"® Recortvnwndations The Commission recom^mends that : Legislation be passed providing for retrocession adhering to the following principles : ( 1 ) Retrocession be at tribal option with a plan. (2) A flexible period of time for partial or total assumption of juris- diction, either immediate or long term, be provided. (3) There should be a significant preparation period available for those tribes desiring such, with a firm commitment of financial re- sources for planning and transition. (4) There be direct financial assistance to tribes or tribally designated organizations. (5) LEA A be amended to provide for funding prior to retrocession for planning, preparation or concurrent jurisdiction operations. (6) Provisions be made for Federal corporate, or charter status for intertribal organizations (permissive, not mandatory) . (7) There be tribal consultation with State and county governments concerning transition activities (no veto role, however). '(8) The Secretary of the Interior : {a) Act within 60 days on a plan or it is automatically accepted ; (h) Base nonacceptance only on an inadequate plan ; (c) Delineate specific reasons for any nonacceptance ; {d) Within 60 days after passage of the Act, the Secretary of the Interior draft detailed standards for determining the adequacy 3'J8 AIPRC Task Force 4 report, exhibit 26. 309 Supra note 28, at pp. 563-.5G4. 209 or inadequacy of a tribal plan. Such standards sliall be submitted to Congress who shall have 60 days to approve or disapprove such standards. (9) Any nonacceptance of retrocession by the Secretary of the In- terior be directly appealable to a three judge district court in the District of Columbia : and The Department of Interior be obligated to pay all reasonable at- torney fees as determined by the Federal court, except where such appeal is deemed by the court to be frivolous. (10) Once partial or complete retrocession is accomplished, the Federal Government be under a mandatory obligation to defend tribal jurisdiction assertions whenever any reasonable argument can be made in support of them. This recommendation is supported in concept by task forces 2, 4, 7, and 9. It is also supported by most tribal groups, and national Indian or- ganizations such as XCAI and NTCA. The special report of North- west Affiliated Tribes directly supports the recommendation; other tribal reports also lend credence to the recommendation. The recom- mendation in major ways parallels S. 2010, which was drafted with major Indian input under the auspices of the National Congress of American Indians. The difference between this recommendation and S. 2010 relates pri- marily to financial and technical support prior to retrocession, and restrictions on Secretarial discretion. Since the 1968 amendment provided for a retrocession process, ret- rocession has occurred in five situations. The experiences of those tribes that participated in retrocession strongly indicates a need for resources from the beginning. Some tribes with existing justice sys- tems probably can immediately move into a full retrocession situa- tion. Other tribes may have the need for preparation, planning, train- ing and long term piecemeal implementation. A significant problem identified in both the Nevada retrocession experience and the Me- nominee restoration/retrocession experience is the indefinitiveness that occurs during the transition period. This transition needs to be planned for, and the States and counties need to be consulted with so that they understand whatever responsibilities they may retain and/or at M'hat point their responsibilities in part or in full may end. IMany of the smaller tribes indicated that they may wish to retain certain functions of the States and counties, and only seek partial retrocession. In these divergent situations, consultation is essential. In the Nevada retrocession situation, approximately 1 year passed from the time the State offered to retrocede and the time that the United States accepted. In this interv-ening period, great uncertainty occurred. Litle or no funds were made available to the Nevada tribes to plan for transition, and when the United States accepted the retro- cession offer, retrocession occured immediately leaving the tribes ill- prepared. This situation argues for both limitations on the actions of the United States and for significant preparation and transition assistance. 210 D. TIIE 10 68 CmL RIGHTS ACT: IMMUNITY, JUDICIAL REVIEW, AND MUTUALIIT In 1968, Congress, for the first time, enacted legislation specifically imposing restraints upon the operations of tribal government.^" Dur- ing this time, there were virtually no statutory guidelines of constitu- tional restraints upon the governments of the tribes.^^^ Title II of the 1968 Civil Eights Act tracked the provisions of the first 10 amend- ments to the United States Constitution with certain minor, but signifi- ■cant, differences. The provisions of title II are as follows : Sec. 202. No Indian tribe in exercising powers of self-government sliall — 1. make or enforce any law prohibiting the free exercise of religion or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances ; 2. violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue war- rants, but upon probable cause, supported by oath or affirmation, and par- ticularly describing the place to be searched and the person or thing to be seized ; 3. subject any person for the same offense to be twice put in jeopardy ; 4. compel any person in any criminal case to be a witness against himself ; 5. take any private property for a public use without just compensation ; 6. deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witness in his favor, and at his own expense to have the assistance of counsel for his defense ; 7. require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500, or both ; 8. deny to any person within its jurisdiction the equal protection of its law or deprive any person of liberty or property without due process of law ; 9. pass any bill of attainder or ex post facto law ; or 10. deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons. Sec. 203. The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe. The primary difference between this legislation and the Bill of Eights lies in,: (1) the omission of language prohibiting the tribal governments from the establishment of religion; (2) specifically pro- viding that persons in criminal proceedings may be represented by counsel retained at their own expense; (3) the limitations imposed upon the penal powers of Indian tribes in criminal proceedings; and (4) the provision extending to any person accused of an offense punish- able by imprisonment the right to a trial by jury. Enactment of this legislation followed some 7 years of hearings and -consideration by the Senate Subcommittee on Constitutional Eights. Despite the long gestation period, it appears the legislation was en- acted with some haste as an amendment to the General Civil Eights Act of 1968.3^2 The Indian titles of the 1968 Civil Eights Act (titles II through A^II) are an amalgam of some eight Senate bills and one Senate reso- 3w Title II, Act of Apr. 11, 1968, 82 Stat. 77 (25 U.S.C. 1302, 1303). 2^1 .<^ee discussion part A of this cli.Tptpr, Lppal Status of Tribal Governinents. pp 14-15 312 Byrnett, A Historical Analysis of the 1968 "Indian Civil Rights Act", 9 Harv. J. Leg. -557 ( 1972) . 211 liition introduced in the first session of the 89th Conofress.^" S. 961 -^voukl have simply provided "that any Indian tribe * * * shall be sub- ject to the same limitations and restraints as those which are imposed on the Government of the United States by the United States Con- stitution." S. 962 would have provided any person convicted in an Indian court who claimed a deprivation of a constitutional right a Tight of appeal to the U.S. district court with a trial de novo. And S.'^963 would have authorized and directed the Attorney General of the United States to receive and investigate any written complaint filed by an Indian who alleged deprivation of any right conferred upon a citizen of the United States either by the laws or tlie Constitution of the United States, and upon finding of such a deprivation, would have :authorized and directed him to institute such legal proceedings as might be necessary to vindicate that right. tVhen the legislation was finally enacted, the sweeping general ap- plication of the United States Constitution to tribal governments was •dropped in favor of statutorily defined rights and limitations parallel- ing the provisions of the first 10 amendments to the U.S. Constitution bu^ modified to fit the tribal circumstances; the general right of appeal with trial de novo was dropped in favor of an abbreviated provision extending the privilege of the writ of habeas corpus to any person to test the legality of his detention by order of an Indian tribe ; and the provisions of S. 963 authorizing the Attorney General to investigate ■complaints of deprivation of rights and bring legal actions were dropped entirely. The 8-year history of this legislation has revealed several problems. Three of the task force reports devoted extensive consideration to these problems and numerous recommendations were posed.^^* Among the problems discussed are the following : 1. Despite the fact the jurisdictional provision for review in Fed- eral court is limited to habeas corpus, the courts have in fact taken jurisdiction over a nearly limitless range of complaints including elec- tion disputes, apportionment of voting districts, membership rights, conduct of tribal officials in their official dealings which may exceed "the authority vested in them under tribal constitutions or may deviate from procedures required by such documents, procedures involving assignments of tribaily owned property for individual use, orders of tribal councils excluding certain nonmembers from the reservation. 'On the other hand, other decisions have dismissed complaints involv- ing similar issues as being internal political disputes beyond the juris- diction of the court. While the courts have been unanimous in ruling that their jurisdiction is not limited to ha))eas corpus, there clearly appears to be confusion as to the correct reach of their jurisdiction. •2. The courts have been inconsistent in their holdings as to the legal standards which should be applied to the actions of tribal gov- ernments. A few courts have held that the Act sim])ly made applica- ble to the tribes the provisions of the Bill of Rights of the U.S. =13 s. 961 through S. 968 and S.J. Res. 40, 89th Con?.. 1st sess. For the test of these bills and the resolution, see hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, lield June 22, 23, 24 and 20. 1965. For a discussion of jurisdictional problems arising from P.L. S3-280, see particularly the Summary Report on the Con.^titutional Rights of the American Indian, prepared by the staff of the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 6-14 (1964) S14 Task Force No. 2, pp. 27-37 ; Task Force No. 4, pp. 129-149 ; Task Force No. 9, pp. 37-45, 87-91 and 323-330. 212 Constitution. However, the better reasoned cases and the weight of authority has taken the view that the Act did not incorporate the whole panoply of Federal constitutional laws but that the actions of tribal governments must be measured "in light of tribal practices" and that "essential fairness in the tribal context, not procedural punc- tiliousness, is the standard against which the disputed actions must be measured." ^^^ Variations from standard requirements of Federal law have been sanctioned in matters involving apportionment of elec- tion districts within a reservation and ^'^^ in the determination of eligibility to vote in tribal elections.^^^ Such flexibility in the appli- cation of this law is clearly necessary and desirable. 3. There is a grooving body of law under the 1968 Act that requires exhaustion of tribal remedies before an action will be entertained in Federal court.^^^ Plowever, the decisions have not been consistent. The requirement of "exhaustion" parallels Federal requirements that before Federal courts will take jurisdiction over matters which should be determined in State forums, the plaintiff or complainant must show either that he has sought relief before the appropriate State- agencies and/or courts or that it would be fruitless to attempt to ob- tain relief from those sources. This rule is premised on the recognition that local governments: should resolve problems of a local nature. Federal intervention should occur only when it is necessary to vindicate a federally protected right, and then only after a clear demonstration that the local government will not act. It was not the intent of Congress when it enacted the 1968 Civil Rights Act to make Federal courts general overseers of tribal gov- ernment. It is extremely important that the principle of exhaustionv of tribal remedies be strictly adhered to by the Federal courts in every jDroceeding under this Act. 4. Tribes have always enjoyed sovereign immunity under the law.^^'^ It has been held in several cases that this immunity was waived by the 1968 Act. The most excessive application of this "waiver" doc- trine is a holding by a U.S. district court authorizing a suit for mone- tary damages against a tribe ^"° for the conduct of a tribal police- officer in making an arrest. aSTothing in the legislative history of this Act even conceivably sug- gests that Congress intended to subject Indian tribes to suits for monetary damages. Every governmental entity in the United States reserves to itself the authority to determine the extent to which it subjects its public treasury to private claims. The United States Government has not authorized monetary claims against the Gov- ernment for every violation by a Federal official of a right protected by the U.S. Bill" of Rights. " Both the Department of the Interior and the Department of Jus- tice have forcibly argued that the 1968 Act did not waive the general ^"^ McCurdy v. Steele, 353 F. Supp. 629, 630 (D. Utah, 1973), rev'd., F. 2d (10th cir., 1974). 3i« T)nh) Y. TJ.St., (483 F. 2fl 700 f Sth cir.. 1973). «^'' Wounded Head v. Oolnla Hinnx Trihe. ."i07 F. 2(1 IPAl fSth fir. 1975). 318 See, e.g.. O'Neal v. Cheyenne River, 482 F. 2d 1140 (8th cir., 1973). 3" U.S. V. U.S. Fidelity and Guarantee Co., 309 U.S. 506 (1940). «^ Loncassion v. Leekity, 334 F. Supp. 370 (D. N.M., 1971). 213 immTniitj'' of tribes from siiit.^-^ In concluding that tribal officials should be subject to the same judicial restraints as are State officials and no more. They were, of course, recognizing that extra -legal and abusive conduct b^^ tribal officials would subject them to personal lia- bility under the same legal theories that State officials are. The Com- mission believes that this is the correct approach. 5. Section 202(7) of the Act (25 U.S.C. 1302(7)) provides that no tribe shall impose punishment upon any person greater than "im- prisonment" for 6 months or a fine of $500, or both. Section 202(10) of the Act provides that "any person accused of an offense punish- able by imprisonment" shall have the right to a trial by jury. The limitations imposed upon tribal penal power are the same as that imposed upon Federal magistrates hearing petty offenses in U.S. district court. It is well established that there is no constitutional right to a trial by jury for petty offenses. Thus, this Act imposes upon tribes an obligation not imposed upon either State or Federal gov- ernments. No matter how short the potential jail sentence, a defend- ant before a tribal court is presumably entitled to a trial by jury. Tribal courts presently handle a caseload in excess of 80,000 cases per year. It is well known that if jury trials were liberally sought, the tribal judicial system would quickly break down. Section 202(10) of the 1968 Act must be amended to restrict the cases in which jury trials may be demanded. 6. By the same token, the penal limits placed upon tribal courts are not considered to be realistic. Little consideration went into the establishment of these limits. Among other factors which apparently played a part in the development of this provision was the notion that tribal courts traditionally did not impose sentences in excess of 6 months or $500. The Senate bill proposing reform of title 18 U.S. Code (S. 1, 94th Cong., 1st sess.) would increase the fine poten- tial to $5,000. Task Force Number Two recommended that section 202(7) be amended to provide for fines of $1,000 and jail sentences of 1 year. 7. A problem area not dealt with under the 1968 Act but one which poses great difficulty to both tribal and State governments is the ex- tent to which the laws of tribes and the judgments of their courts will be recognized by State or Federal courts. There is a reciprocal question regarding the extent to which tribal courts must recognize the laws and judgments of States. Two legal concepts provide a foundation for discussion: (1) full faith and credit, and (2) comity. An excellent discussion of the law on this subject is contained in appendix XIII of Task Force Number Two report. An early Supreme Court decision held that certain legal acts of the Cherokee Nation were entitled to full faith and credit on the theory that the government of that tribe base a relationship to the United States similar to that of a territorial government.^^^ A sim- ilar position was adopted in other Federal decisions in the late 1800's.^-^ In recent cases, a similar theory has been adopted by some 321 Task Force No. 4 Report, pp. 136-137 ; Task Force No. 9 Report, app. II, part V, ex. 16. ■■>^^ Ifacker/ Y. Coa;e, 59 U.S. (18 How.) 100 (1S55). 323 Task Force No. 2 report, p. 289. 214 courts ^^* but rejected by others.^^^ Regardless of theory, it is clear that some courts are giving due cognizance to orders of tribal coui^ts ^-^ and some are not. The refusal of some States to recognize the laws of tribes and the orders of their courts is clearly harmful to both the tribes and the States. It should be noted that tribes generally are recognizing lawful orders of State courts when an appropriate request is made.--'' Clearly, the interest of orderly administration of the law requires that both tribes and States respect laws of each other. Recoininendations The Commission recommends the following amendments to title II of the 1968 Civil Rights Act : 1. Congress enact provisions to make it crystal clear that this Act- was not intended as a general w^aiver of sovereign immunity of the- tribes. The holding in Loncassion v. Leekity^ 334 F. Supp. 370 (D.,. N.M., 1971) authorizing a money judgment against the tribes should be specifically rejected by Congress. While the courts must have au- thority to enforce substantive aspects of the Act (as limited by the' recommendation above), Indian tribes, like any other governments,^ must have sovereign immunity and some protection for their officers; if they are to be able to govern fairly. Equitable actions such as man- damus against tribal officials may be permissible, but they should be immune from money judgments when they work within their scope of dutv. In this respect tliey sliould be in the same position as State and Federal officials; i.e., protected when acting within the scope of duty but personally liable when acting beyond or outside their defined scope of duty. 2. The jurisdictional provisions of this Act be reexamined. Habeas corpus review is the only jurisdictional provision now included in this Act, yet the courts have assumed jurisdiction over a broad range of actions which do not involve detention. As the situation stands, the jurisdictional reach of Federal courts and the remedial orders which they feel free to enter is virtually unlimited. This is in complete contrast to all other Federal civil rights legislation. 3. The part of this Act providing for a right to trial by jury be amended to specify that the right guaranteed by this subsection shall only be applicable to offenses which if charged in a Federal court would be subject to a right to trial by jury. As section 202(10) pres- ently reads the right to trial by jury would theoretically apply to al- most every offense a person might be charged with, no matter how slight the penalty. 4. The provisions of the Act limiting the penal authority of a tribe to fines of $500 or 6 months imprisonment, or both, should be amended to increase these figures to fines of $1,000 or 1 year imprisonment, or both. .5. That section 1738 of title 28, U.S. Code, should be amended to specifically include Indian tribes among those governments to whonii 32^ Jim V. CIT Financial Corp., 87 N.M. 362, 553 P.2d 751 (1975). s=^ Begaji v. Miller, 70 Ariz. 3S0, 222 P. 2d 624 (1950), 3=iTnKk Forcp No. 2 report. pr>. 2:!7. 240. ^ State V. Railey, 87 N.M. 275, 532 P. 2d 204 (1975). 215 full faith and credit sliall be given. The purpose of this amendment would be to clarify and reinforce the rulings of the majority of courts to the effect that Indian tribes are on the same footing as States and territories with respect to the application of full faith and credit principles. 6. Congress amend title II of the 196S Civil Rights Act to provide a mechanism for limited appeals to United States district courts after exhaustion of all available tribal remedies. The need for such a pro- vision is directly related to: (1) the Commission recommendation for according full faith and credit to tribal laws and court judgments; and (2) to the expanding role of tribes in civil and criminal matters in- volving non-Indians. This legislation should adhere to the following principles : (a) Existing Federal law permits Federal courts to review the judgments of State courts for matters involving questions arising under the U.S. Constitution or Federal statutes. The limited right (ki of appeal proposed in this part would authorize Federal court ; review of tribal court decisions in both civil and criminal matters in extraordinary circumstances involving a prima facie showing of a denial of due process (fundamental fairness) or denial of equal protection, and /or when the amount in controversy exceeds a specified amount. ($10,000). (h) Section 203 of title II of the 1968 Civil Rights Act (25 U.S.C. 1303) which extends the privilege of the writ of habeas corpus to test the lecrality of detentions by order of Indian tribes be amended to provide a limited right of appeal from final orders or judgments of the highest court system of the respective tribe in both civil and criminal matters. (c) Appeal to the Federal court not be allowed until the pe- titioner has exhausted all available tribal remedies. This "exhaus- tion*' requirement include all tribal appellate remedies including appeals to regional intertribal courts of appeal should the tribes elect to enter into such intertribal compacts. The requirement for exhaustion should be rigidly enforced by the courts. (d) The review not turn on procedural requirements but rather be premised on fundamental fairness based on the entire record. This amendment follow the rule laid down in cases that this Act did not "blanket in" the entire body of Federal case law but pro- vides for interpretation in a manner consistent with the needs and customs of tribal institutions. Status of Tribal Go\TERX]NrENTS axd the Delivery or Services A. federal domestic assistance progr.\m delia^ery system Overvieio In its first definitive statement on the question of Federal-Indian relations, in the landmark case of Worcester v. Georglo^ the United States Supreme Court articulated the most basic theory of Federal- Indian law — that Indian tribes are "distinct, independent political r 3=« 31 U.S. (6 Pet.) 515 (1832). 216 communities possessing and exercising powers of self-government de- rived solely from their original sovereignty." This enduring principle has never been overruled by congressional statute or Federal court decision, and indeed, Federal law and policy continues to recognize Indian tribes as independent self-governing political entities within the Federal system. The extent to which tribes can fully exercise their powers of self- government is largely dependent on congressional action which is consistent with Federal-Indian policy articulated in Worcester. How- ever, analysis of the status of tribal governments within the Federal domestic assistance program delivery system leads to the conclusion that Congress and its numerous congressional committees established to deal in a comprehensive manner with the entire scope of the Federal responsibility have not always been conscious of the political status of tribal governments in creating authorizing legislation for Federal domestic assistance programs. Thus, consideration of tribal govern- ments as constituencies eligible for Federal programs is often lacking in the planning stages of proposed Federal program legislation, and as a result. Federal programs intended for all United States citizens do not reach the total target population intended to be serviced under any particular act. The problem is further compounded by a lack of sufficient congressional guidance to executive agencies charged with the responsibility of service deliver3^ As a result, authorizing legislation, program acts, and associated administrative regulations of Federal domestic assistance programs may fail to specify tribal government eligibility to create delivery systems which force tribal governments to come under the jurisdiction of State and/or local governments. Not only do such requirements clearly thwart the ability of the tribal government to provide services to its tribal members, but these regulations often act to extend State or local government jurisdiction within the exterior boundaries of the reservation. Since an integral aspect of the Federal policy towards Indian tribes is the guarantee of independence from State jurisdiction and authority, it follows accordingly that tribal participation in Federal domestic assistance programs should not be conditioned on State involvement in the de- livery of services. Background Tribal governments are recognized as eligible prime sponsors for a number of Federal domestic assistance programs. The extent to which tribal governments have taken advantage of the programs available to them has been largely dependent on the tribal government's access to Federal program information. This access is limited — most tribes depend solely on the receipt of the Catalog of Federal Domestic Assistance Programs, which details some 1,030 programs available to State, local, and tribal governments. Often, however, tribal govern- ment eligibility for any particular domestic assistance program is not specified, and the tribe has no means of ascertaining statutory barriers in the authorizing legislation or program act which would prevent tribal government eligibility for a given program. A bill introduced in the 94th Congress — the Federal Program Information Act (Senate bill S. 3281), if enacted would have created a data base of all Federal domestic assistance programs, and provided comprehensive coverao-e 217 of authorizing legislation, program acts, and administrative regula- tions. This bill had the potential of increasing the flow of Federal program information to tribes, and if properly constructed, would specify tribal govermnent eligibility as well as administrative require- ments which might aifect the prime sponsorship status of the tribal government. In order for tribes to make effective use of Federal domes- tic assistance programs in achieving self-determination, access to Federal program information is crucial. Status of Tribal Government Within the Federal Domestic Assistance Program Delivery System Problems surrounding State involvement in the delivery of Federal domestic assistance programs to tribal governments stem from a variety of sources. In some cases, authorizing legislation or program acts of an agency which is charged with service delivery will specify that all programs offered by that agency must be administered through a Federal-State delivery system. In other cases, program acts or ad- ministrative regulations of such acts require State passthrough or sign-off on tribal plans, or moneys to be directed to the tribal govern- ment. In such instances, even though a tribal government may be eligible to be the prime sponsor for a Federal program, the moneys to be received are channeled through the State by legislative mandate. Examples of such programs are the Food Stamp Program, Johnson- 0"Malley education moneys, title XX of the Social Security Act, Coastal Zone jianagement Program, and some Law Enforcement As- sistance Administration programs. Still other programs, like those offered by the Small Business Ad- ministration, require a tribe to come under State jurisdiction, as eligi- bilit}' is conditioned upon State incorporation of a business or organi- zation, or the State must authorize that the enterprise is not an arm of the tribal government. Not only are such programs in direct con- flict with established Federal policy which would prevent the extension of State jurisdiction within the exterior boundaries of the reservation, these programs authorize State discretion in the distribution of Fed- eral moneys — an authority which has been abused in many instances. As stated by the Papago Tribe of Arizona, "by granting States au- thority to set standards of qualification, the States are given the power to usurp or interfere with the sovereign powers of Indian tribes to govern themselves * * *; by granting States final authority to set standards of qualification, the Federal Government is delegating to the States the power to disqualify Indian tribes from participation in Federal programs * * * ; by granting States authority to set stand- ards of qualification, the States are given implied power to force Indian tribes to the jurisdiction of State courts in order to meet such standards; and by granting the State authority to select the planning and funding agencies for Federal programs, the State is given the latitude to select as such agencies either political subdivisions of the State or contract providers organized by special interest groups, both of which represent constituencies inimical to or, in competition with Indian interests." ^-^ "-^ Letter to Mel Tonasket. president, National Congress of American Indians from the Papago Tribe of Arizona, Nov. 3, 1975. 92-18.3—77 ^^15 218 Countless examples have been cited by Indian people who have wit- nessed State abuses of authority granted to them in Federal domestic assistance program legislation. These illustrations show the State to be in clear violation of any role that Congress intended for the State in the delivery of Federal domestic assistance programs. The Indian community has consistently voiced strong support for the elimination of States from the delivery system of Federal domestic assistance programs to tribal governments. The most recent expres- sions of this support have been issued in major policy resolutions of the 1976 National Congress of American Indian Convention, and by a special committee reporting to the Board of Directors of the Na- tional Tribal Chairmen's Association. In addition, extensive docu- mentation of tribal views concerning Federal domestic assistance programs can be found in the Tribal Government Task Force report to the American Indian Policy Review Commission.-^" Analysis of all Indian input obtained to date, as well as consultation with government officials, leads to the conclusion that tribal govern- ments must be considered equal to State governments for purposes of direct access to Federal domestic assistance programs. This is the only logical action consistent with established Federal policy which would prevent State jurisdiction over tribal governments, and elimi- nate State abuses of authority in the delivery of Federal domestic assistance programs to Indian tribes.^^^ Inequities of Population FoTTnula Grant Guidelines Other problems frequently cited by tribal governments in obtaining Federal domestic assistance stem from administrative requirements of Federal programs which condition eligibility in formula grants based on population. Because 82.9 percent of all Indian tribes have populations of less than 1,000 members,^^^ many tribes are forced to form consortiums or intertribal affiliations because of a lack of a population base sufficient to qualify for Federal domestic assistance programs. Small tribes particularly fall victim to this stipulation and are forced to seek out other tribes with common areas of need and a willingness to cooperate. Given the geographical isolation of many small tribes and scarce financial resources which preclude travel, it is more often than not. a sheer impossibility for small tribes to identify other tribes in a similar situation and to make the communicatioii necessary for such an alliance. More importantly, the principle of sovereignty recognizes the integrity of a sovereign government to form associations or alliances only upon the discretion of the sovereign, and not as a function of the administrative requirements of another governmental unit. Thus, eligibility requirements such as section 96.42 3S0 App. I, oh. IV, Tribal Government Task Force report to the American Indian Policy Review Commission, July 1976, 46-57. '"^Recently ndmiiiistrative agencies have clemonstratefl an increasing awareness of the lecal status of Indian tribes relative to elieihility for participation in their aprency prnsrram. For example, the Chief Counsel of the U.S. Urban Mass Transportation Administration (UMTA), U.S. Department of Transportation rendered a le?nl opinion concluding that "Indian tribes and communities are eligible to participate in UMTA grant programs in the same manner as any local public body" citing U.S. v. Mazurie and U.S. v. Kagama (Dec. 2, 1976). s-'s-BIA Tribes in Order by Population: 197."^ Revenue Sharing: or Equivalent for Non- Revenue Sharing ; or State Alternate for Oklahoma. 219 of the Comprehensive Employment and Training Act (CETA)'^' which requires that a tribe must represent at least 1,000 persons, im- mediately places 82.9 percent of Indian tribes under the condition of having to form consortiums or intertribal organizations to become eligible for CETA funding and is in clear violation of the principle of sovereign-chosen alliances. Federal Agency Administrative Requiretnents Generally, Indian tribal governments do not have the administrative mechanisms and manpower available to them, comparable to State and local governments. Thus, variations in funding cycles of each pro- gram operated, quarterly reporting requirements for each (many tribes prepare 100 reports annually) ^^* lack of Federal program in- formation, and poor to nonexistent BIA support, place a staggering administrative burden on tribes for which they are ill-equipped. Some measures have been taken to respond to this need, particularly section 104(a) moneys appropriated under the Indian Self-Determination and Educational Assistance Act, which provide financial support for tribal government capacitj'-building endeavors. Although major con- troversy surrounds the amounts available to each tribe (allocations based on population formulas derived from 1970 census data which is grossly inaccurate in many cases), tribal governments may now be in the position of obtaining the ser\'ices of civil service personnel for much needed expertise and technical assistance under the Inter- governmental Personnel Act of 1970 ^'^ by matching salaries with moneys available to the tribe under section 104 ( a) . Coordination Among Federal Agencies Responsible for Providing Federal Domestic Assistance Programs Historically, tribal governments, like State and local governments, have been confronted with a complex maze of Federal programs, each of which requires a unique accounting and administrative system and separate personnel associated with each program unit. The result is that the tribal government must organize within itself a separate governmental component for each program administered. The Federal Government has continually sought to design a system to deliver Fed- eral domestic assistance programs which would respond to the com- munity needs of a tribal, local, or State government. The Office of Management and Budget's circular A-102 is an example of such at- tempts — a procedure which would act to reduce the number of differ- ent accounting systems required for each Federal program con- tracted.^^^ Still, there remains a vast duplication of services and data gathering efforts conducted by each Federal agency, because of the severe lack of coordination existing among Federal agencies responsi- ble for the delivery of Federal domestic assistance programs. A tribe 333 Public Law 93-201, sec. 96.42. ^^ App. XIX. Tribal Government Task Force report to the American Indian Policy Review Commission. Julv 1976 ; Tribal Government Surveys. 335 Public Law 91-648. Jan. 5, 1971 ; 84 Stat. 1909, 42 U.S.C. 4701, 4702 ; 47U-13, 4721- 28, 4741-47116, 4761-4772. 33« Office of Management and Budget circular A-102. 220 is placed in the position of having to apply for as many as 10 to 15 different programs even to approach fulfilling the need for training and technical assistance. A delivery system and grants procedure which would allow coordination of Federal programs at the local level, can only be effective if the Federal agencies whose programs are involved can coordinate the provision of services to be delivered. Joint Funding Sinfipliflcation Act The recent issuance of the Joint Funding Simplification Act regu- lations (July 30, 1976) ^^^ has the potential of providing meaningful mechanisms to the achievement of Indian self-determination. This Act provides for a forum in which a tribal government can design a long-range development plan to be implemented through an inte- grated grants procedure. This Act was enacted by Congress on December 5, 1974 : * * * to enable State and local governments and tribal governments and private, nonprofit organizations to use Federal assistance more effectively and eflSciently, and to adapt that assistance more readily to their particular needs through the wider use of projects drawing upon resources available from more • than one Federal agency, program, or appropriation."^ The process enabled by the Act involves negotiation between the tribal government, the Bureau of Indian Affairs, and Federal agencies for whose programs applications are being made. Agency representa- • tives are empowered to waive administrative requirements which might prevent the tribal government from access to the Federal domestic as- • sistance programs concerned. The negotiation process enables the' tribal government representatives to interact directly with Federal I agency representatives, and to secure the funding necessary from each i agency to accomplish the goals outlined in the long-range tribal plan. . Upon completion of the negotiation process, one integrated grant ap- plication is made, accompanied by each agency's commitment for funds and endorsement of the grant package. Finally, each Federal' agency transfers the funds allocated in the grant package to one agency designated as the lead agency to administer the grant, and one letter of credit is issued to the tribe. The flexibility of funds within the grant package allows grant re-- cipients to spend funds in any order as long as allocations under each grant are spent appropriately at the end of the funding year. This procedure eliminates the problem of different funding cycles, as welll as burdensome reporting requirements, as the tribe reports quarterly to the lead agency on only one grant program. The Joint Funding Simplification Act enables tribes to have direct access to Federal agencies and to negotiate one integrated grant, there- by alleviating many of the problems now confronting tribal govern- ments in their relationship to the Federal domestic assistance program delivery system. In summary, the status of tribal governments within the Federal domestic assistance delivery system is subject to various legislative a-iT Joint Funflins: Simplification Act (P.L. 93-510). 8M Joint Funding Simplification Act (P.L. 93-510), purpose. 221 and administrative procedures which are inconsistent with established Federal policy. The implementation of principles which would re- solve such inconsistencies should establish a clear definition of tribal government eligibility for each Federal domestic assistance program and guarantee the jurisdictional independence of tribal governments from State governments as permanent political entities within the Federal domestic assistance program delivery system. RecoTrmiendations The Commission recommends that : 1. Congress enact legislation guaranteeing the permanency of trib- al governments within the Federal domestic assistance program de- livery system. 2. Congress enact legislation to resolve the inconsistencies of Fed- eral domestic assistance legislative and administrative procedures as they define the status of tribal governments within the Federal domestic assistance program delivery system. The implementation of principles which would resolve such inconsistencies establish a clear definition of tribal government eligibility for each Federal domestic assistance program and guarantee the jurisdictional independence of tribal governments as permanent political entities with the Federal domestic assistance program delivery system. 3. Congress authorize the waiver of administrative regulations of Federal domestic assistance programs which condition eligibility on population formulas. Allocation of funds, however, should employ some population criteria such as that utilized by BIA under Public Law 93-638 to provide adequate funding to tribes with smaller popula- tion bases. 4. Congress establish Federal policy recognizing the sovereign right of a tribal government to form its own government. In accordance with Federal policy, eligibility criteria of Federal domestic assistance programs not force tribal governments to form consortiums or inter- tribal affiliations in order to become eligible for Federal domestic assistance. 5. Conjrress amend the Intergovernmental Cooperation Act of 1968 (40 U.S.C. § 535 and 42 U.S.C. § 1401) to include tribal governments in the scope of intergovernmental activities and access to Federal pro- gram information provided for under the Act. 6. Congress amend the Law Enforcement Assistance Act (42 U.S.C. § 3711, et seq.) to remove State jurisdiction over tribal governments in the service delivery system of Law Enforcement Assistance Admin- istration programs, thereby allowing programs and moneys to flow directly to the tribal government. B. rUXDIXG AND PUBLIC LAW 9 3-6 38 Overvieio The degree to which a tribe can effectively exercise the powers which have been upheld by the Supreme Court as being inherent to it is largely dependent on two factors. The first is the ability of the tribe to finance the basic operations of tribal government. The second is the ability of the tribe to finance the cost of litigation with State or local 222 governments or individuals who challcnj^e the right of a tribe to exer- cise its powers. Both factors can serve as serious constraints upon the governing capacity of a tribal government. Background — Ahility of Tribes to Finance Operations Commission interviews conducted over the past year revealed that very few tribes have the financial resources necessary to support the basic operations of tribal govemment.^^^ Many tribal governments consist of a tribal chairman and a tribal council, which will vary in size from reservation to reservation. Wliere fully financed tribal governments exist, the position of a tribal administrator or business manager is one of considerable responsibility, as this person is usually responsible for overseeing the day-to-day functioning of the tribal gov- ernment. The position of tribal attorney or legal counsel to a tribe is one that a majority of tribes interviewed expressed great need f or.^*" However, relatively few tribes are able to generate revenues sufficient to salary these fundamental positions of tribal governments capable of exercising a full range of governmental powers. It is important to un- derstand the relation of these concepts if the goal of self-determination is to be achieved. Strengthening Tribal Governments: AIPRC Objective In the authorizing legislation which created the American Indian Polic}^ Review Commission,^'*^ the Commission was charged to "make a comprehensive investigation and study of Indian Affairs and the scope of such duty shall include, but shall not be limited to ... a con- sideration of alternative methods to strengthen tribal governments so that the tribes might fully represent their members, and at the same time, guarantee the fundamental rights of individual Indians." ^*- In compliance with congressionally establislied objectives, the Commis- sion undertook the study of measures which would work to strengthen tribal governments, such that the stated goals might be achieved. It is to this end that the above needs of tribes as identified through surveys of tribal governments ^*^ are presented, so that Congress may know that without support to the basic operations of tribal govern- ments, the goals outlined in section 2 of Public Law 93-580 cannot be realized. Inability To Siopport Leadership Positions In surveys, interviews, and testimony obtained from 121 tribes,^** the large majority of tribal governments expressed a need for the abil- ity to finance the positions of a full-time salaried tribal chairman, an adequately compensated tribal council, a tribal attorney, a tribal ad- »39 For extensive discussion of findings, see ch. Ill, Tribal Government Task Force report to the American Indian Policy Review Commission ; July, 1976. 3*0 See ch. Ill, Tribal Government Task Force report to the American Indian Policy Re- view Commission ; July, 1976 ; p. 72. S41 P.L. 93-580. s^ P.L. 93-580, sec. 2. «« ,<=ree app. XIX, Tribal Government Task Force report to the American Indian Policy Review Commission ; July, 1976 ; Tribal Government Surveys. ■''" See ch. II, Tribal Government Task Force report to the American Indian Policy Re- view Commission ; July, 1976 ; p. 67. 223 ministrator, and needed technical assistance. These positions or func- tions were considered by most tribes to be tlie fundamentals of tribal government. Commission analysis revealed that presently there is only one pro- gram which provides direct support to the strengthening of tribal goverment. This program is provided for in section 104(a) of the In- dian Self-Determination and Education Assistance Act, and is titled the Self-Determination Grants Program,^*^ xllthough the Self-Deter- mination Grants Program is a clear indicator that Congress recog- nizes the need to provide support for the strengthening of tribal governments, Commission study has determined that the administra- tive regulations subsequently issued under the Act have narrowed the scope of congressional intent articulated in the Act, thereby thwart- ing the intent of Congress to provide direct support to tribal governments.^*^ Obstacles in Grant Regulations — Population Formulas There are three major difficulties associated with the administrative regulations of section 104(a) of the Indian Self-Determination and Education Assistance Act.^^" The first problem stems from the fact that in determining the service population to be served by a tribal government, population formulas are used. Assuming that a tribal government might decide to use its section 104 moneys to revise their tribal constitution for instance, it is difficult to see how the finances needed for a tribal constitution revision would be any greater for a tribe with 100,000 members versus a tribe with 100 members. Commis- sion field work further reveals that many small tribes experience dif- ficulty in preventing the diminution of tribal trust land, or exercising their jurisdiction within the exterior boundaries of their reservation. Thus, the need for legal counsel is often greater for a small tribe than it might be for a large tribe which can adequatel}^ generate enough tribal revenue to support representation by several law firms. Yet, it is the larger tribes which benefit from population-based funding and the small tribes which continue to suffer from underdevelopment of tribal government governing capacities. Because of the "allowable costs" for tribal government capacity building in the Act are of this nature, population formula-based funding does not reach those with the greatest need. The problem is further compounded by the fact that the popula- tion formulas used for the administration of section 104, are bound bv circular A-46 revised, exhibit 1, from tlie Office of Management and Budget.433 This circular requires that all population formulas be based on 1970 census data population estimates. Indian people have vociferously ob- jected to the population estimates projected from the 1970 census as being grossly inaccurate. The problem is only magnified in 1977. =^ P.L. 93-638, sec. 104(a). ^'^ P.L. 9.3-638, sec. 104(a). *•" For extensive discussion of findings, see cli. III. Tribal Government Task Force report to the American Indian Policy Review Commission. July, 1976. ^ Office of Management and Budget circular A-46 rev., ex. 1, June 6, 1975. 224 Criteria for Determining Service Populations The second problem with the administrative regulations of the In- dian Self-Detcrmination and Education Assistance Act section 104 (a) is the criteria for determination of the eligible service population to be served by tribal members living on trust property. The rationale given for establishing this criteria is that tribal members who are not living on trust property will be serviced by some other unit of govern- ment. This is clearl}^ an erroneous assumption on the part of the Of- fice of Management and Budget. Many Indians reside off the reserva- tion but retain their traditional ties. Within the shortage of adequate housing and the high rate of unemployment existing on most reserva- tions, Indians must seek housing and employment opportunities else- where. This fact, however, does not relieve the tribal government of the responsibility to provide services to those tribal members residing off the reservation, and indeed, many tribal members return to the reservation on a frequent basis to avail themselves of those services, particularly health care. Many Indian people forced to relocate to large urban centers com- plain that they do not receive services equal to their non-Indian coun- terparts, that they are continually discriminated against. Thus, it is not unusual for an Indian family residing in an urban center to travel hundreds of miles back to the reservation to provide their children with adequate health care which they are not able to obtain in the city. The capacity of the tribal government to provide tribal members with these services is severely limited by these administrative regula- tions which penalize the tribal government for its ofi'-reservation serv- ice population, but do not relieve the tribal government of the respon- sibility for providing services to those tribal members residing off the reservation.^*^ Definitions of Allowable Costs for Grants Finally, the administrative regulations associated with the Self-De- termination Grants Program specify "allowable costs" under the pro- gram which serve to limit the allowable activities undertaken to strengthen the tribal government. Many of the restrictions are con- tradictory and establish a hierarchy of priorities and "acceptable" gov- ernmental activities Avhich do not provide meaningful assistance to the capacity-building efforts of many tribal governments.^^" ]\Ioreover, recent Office of Management and Budget reports to Congress on fiscal year 1978 apjDropriations restrict even further the purposes for which section 104(a) moneys can be expended. Litigation Costs as a Burden on Tribal Go'vernments The second major factor which acts to constrain the governing ca- pacity of a tribal government is the burden of litigation many tribes face in protecting tribal trust land resources, as well as the tribe's exercise of its sovereign powers. Because of the conflict of interest dis- 3* For further discussion, see ch. Ill, Tribal Government Task Force report to the Amer- ican Indian Policy Review Commission ; July, 1976 ; p. 81. =»" For detailed analysis, see ch. Ill, Tribal Government Task Force report to the Amer- ican Indian Policy Review Commission ; July, 1976 ; p. 78. 225 cussed in section I of this chapter, the Departments of Interior and Justice frequently choose not to represent tribes in litigation with other Bureaus within the Department of Interior or in conflicts with State governments. The resultant financial burden rests solely with the tribe, the party to litigation which can usually least afford to bear the costs of reestablishing the sovereign powers which have been recognized and upheld so consistently by the Supreme Court. Powers of a sovereign become meaningless unless they can be exer- cised, and yet. some tribes have been forced to delay asserting their sovereign powers purely because they lack the income necessary to suj^port litigation which might ensue over the exercise of inherent tribal powers of government.^^^ It is logical to assinne that when the Supreme Court upholds the power of a tribe to tax,"^- subsequent suits challenging the power of a tribe to tax should shift the financial burden for litigation to the party challenging the tribe's right to tax. Summary The goal of self-determination would restore to tribal governments the status which they are legally accorded by the Supreme Court. In order for tribal governments effectively to assert their legal status within the Federal system, tribal governments must have the financial resources necessary to support the basic operations of tribal govern- ment, so that they may fully exercise their right to tribal self-govern- ment and achieve the goal of self-determination. Recommendations The Com/mission recommends that: Congressional recognition of the legal status of tribal governments include the recognition that tribal governments must have the financial resources necessary to support the basic operations of tribal govern- ment, so that tribes may effectively exercise their inherent sovereign powers. Congress direct the Bureau of Indian Affairs to undertake a needs assessment of each tribal government to determine tribal capability to finance the basic operations of tribal government. Congress authorize the evaluation of the administrative regulations of self-determination grants program, and require the revision of reg- ulations where such regulations narrow the scope of congressional intent articulated in the Indian Self-Determination and Education Assistance Act. Congress assure that in both administrative and judicial proceed- ings, Indians will be assured competent, independent comisel. 35- Tribal Government Task Force report on Uintah-Ouray Reservation, p. 2. ^' Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th cir. 1956) ; Buster T. WHght, 135 F. 947 (Sth Cir. 1905;, appeal dismissed, 20o U.S. 599 (19Utj;. CHAPTER SIX FEDERAL ADMINISTRATION OF INDIAN POLICY TOO MUCH BUREAUCRACY Present budgetary practices do not provide an equitable share of Federal appropriations for Indian services for tlae direct benefit of Indians. Instead, the ratio of one Federal administrator for every 19 Indians illustrates that the Government's massive administrative organization absorbs an inordinately large proportion of Indian appropriations to support Federal employees. Rather than benefiting the tribes directly, relatively high Federal salaries result in expendi- tures constituting transfer payments to civil servants. (227) CONTENTS Page Introduction 231 History of Federal administration of Indian programs 236 Introduction 236 Before the establishment of the Bureau of Indian Affairs 236 Creation of the Bureau of Indian Affairs 238 The structure of administration of Indian affairs 178G-1940 238 Reorganizations of Bureau of Indian Affairs 1830-1972 241 Recent developments in administration of Indian programs 245 The present state of Federal administration of Indian policy 247 Overview 247 Fragmentation of Federal Indian policy 247 Commerce Department 249 Department of Housing and Urban Development 251 Department of Health, Education, and Welfare 251 Department of Agriculture 253 Department of the Interior 254 Department of Lal^or 255 Access to program information 259 Technical assistance 260 Indian preference in contracting 263 Problems in Public Law 93-638 implementation 265 Old problems 265 Bureau of Indian Affairs 265 Some Internal Management Problems 267 Organization 268 Budget 269 Personnel 270 Management information 271 Recommendations based on BIA management study 273 Unsolved problems in the Bureau of Indian Aflfairs 276 A management and public awareness problem of the Bureau 278 Problems with the Bureau of Indian Affairs liudget 279 Continuing problems at "the other" major Indian service 281 A program for the future of Indian administration 284 Consolidation of Indian programs in one department 284 A separate department 286 Interior Department transition 288 BIA transition 289 The creation of separate Indian committees in Congress 293 Recommendations for Federal administration 296 (229) CHAPTEK VI FEDERAL ADMINISTRATION OF INDIAN POLICY Intkoduction The Indian desire for a functional "self-determination" policy in- cluding provisions for its administrative implementation is docu- mented by testimony of tribes and countless individuals and through the examination of more than a hundred previous studies. The net effect of this pattern of ineffectiveness represents a 200-year record of erratic policy, fluctuating from periods of benevolence to periods of attempts to totally eliminate tribes, and back to renewed policies of support and protection. The first cliapter, "Captives in a Free Society." as well as the chap- ters on "history", "trust", and "tribal government", provide the back- ground for the following discussion and an evaluation of the admin- istration of Indian trust and its related program functions. Almost every aspect of Indian life falls under the stewardship of Federal administration. Indian administration affects the trust rela- tionship, tribal government, jurisdiction, social services, and, gener- ally, the present eoonomic and social condition of Indians. The frustrations found in the administration of all these elements, are rooted in the history of Indian affairs. These factors, thoujrh intended to be managed in order to advance the Indian cause of self-expression, actually have become lost in a maze of organization. Federal regula- tion, and procedure which often turns Indian administration into a mechanism for economic stagnation, rather than progress. In spite of a general expectation for the eventual disappearance of Indians through assimilation, the life style, governmental capacities, and aspirations of iTidian tribes are expanding. Indian life expectancy is increasing and the Indian population is growing. Indian tribes, more coomizant of their powers and their roles as governments, are now insistent that Indian self-determination become a reality, instead of lansruishing as a frustrating concept. Tribal self-government cannot be framed in law alone: nor can it be legislated and administered except by the will of the people. If tribes begin to exercise their powers of government, thev <^an l)e expected to conduct their affairs in a rational, intelligent, and lawful manner. It is unreasonable, and frustrating to Indians, for anybody to assume otherwise. The fi'usti'ation of the rights of tribes to exercise powers of govern- ment bv the administrative edicts and procedural dictates of delegates of ^he Se^refarv of th"^ Interior should no lonrrer bp ipmntablo fo Con- gress or the Indian tribes. A more appropriate vehicle for self-govern- (231) 232 merit can be achieved by delegating the powers of the Secretarj^ to tribal governments rather than to civil servants. It is then reasonable to assume that tribes will be accountable once given the guidelines in the form of published rules and regulations. GOVERNMENT BY EXPERTS The principal rationalization for the domination of Indian tribes is the presumption that tribes "are not ready," or that the trust relation- ship constitutes a license to conduct Indian governmental functions by experts. Expert rulers, however, have been traditionally mistrusted by many societies. In any event, tribal self-government cannot be framed in law alone. As Indians begin to practice self-government, there should be a confidence in their ability to manage their own affairs. Government is a matter cbiefly of human purpose and of justice, wliieh depends upon human purpose. And each of its is a more faithful champion of his own purpose than any expert. Tlie basic principle of American liberty is distrust of expert rulers, and recognition in Action's words, that "power corrupts and that absolute power corrupts absolutely." That is why America, despite all the lingo of the administrative experts, has insisted upon self-government rather than 'good government', and has insisted that experts should be servants not masters. And what we insist upon in the governing of these United States, our Indian fellow-citizens also like to enjoy in their limited domains : The right to use experts when their advice is wanted and the right to reject their advice when it conflicts with the purposes on which we are all our own experts.^ TOO jmuch bureaucracy Present budgetary practices do not provide an equitable share of Federal appropriations for Indian services for the direct benefit of Indians. Instead, the ratio of one Federal administrator for every 19 Indians illustrates that the Government's massive administrative organizations absorb an inordinately large proportion of Indian ap- propriations to support Federal employees.^ Rather than benefiting the tribes directly, relatively high Federal salaries result in expendi- tures constituting transfer payments to civil servants. The functions of public works, social services, real estate, law enforcement, govern- ment services, as well as education, medical, and private business are administered by a surrogate local government headed by Federal em- ployees. The massive structure is maintained by congressional appro- priations which could bettor serve the Indian tribes directly. Tlie $10 million increase in the BIA budget in fiscal year 1977, which falls be- low the normal 6-percent annual inflationary allowance, was absorbed by pay raises for Bureau personnel.^ The transfer of funds should be directly to Indian tribes and the outmoded, paternalistic structure of the BIA should be modified to reflect the changing priorities of the Indian people. Instances abound of the subversion of the rights of tribes at the convenience of the Government. And the discretionary powers of the 1 Felix Co'ipn. Tlie Losal Consoiencp. 2 AIPRC Task Force No. 3, BIA Management Studj-. " See cliart on p. 2."').j. 233 executive brancli consistently are used to overrule tribal actions. The administrative prerogative of failing to act often constitutes a pocket veto of many tribal actions. It is frustrating to the Indian people to be singled out as being unable to administer governmental functions in a rational, intelligent, and la-wful manner when the contrary is, as a matter of course, presumed for the other governments. Xor is the BIA alone in taking unfair advantage of Indian people. Other agencies have compounded the problem by becoming equally IDaternalistic. complicating the problems further with ineffective co- ordination while manifesting a disinclination to cooperate with other agencies serving Indians. >rEGATI\'E FACTORS IXHIBIT CHAXGE Two negative factors have consistently been deterrents to desirable change in the consideration of improving administration of Indian affairs : The fear of Indian people that any new legislation or adminis- trative change might threaten the existence of tribalism and the Indian peoples' special relationship with the United States. The propensity of the Indian bureaucracy to resist change while maintaining and even expanding its size and span of con- trol over Indian tribes and their members. Tliroughout history, Indian tribes have found it necessary to repel injudicious Federal legislation and policy rather than to permit ad- ministrative manipulations which would abuse their rights. They in- stinctively distrust all change initially because of the harm that some- times well-meaning but ill-conceivecl policy changes have caused in the past. Consequently, in order to establish positive Indian adminis- tration, it should be recognized that the best solution to the flounder- ing state of Indian affairs is one which seeks to achieve a permanent settlement of longstanding issues and is developed in concert v^•ith Indians. There has been an extensive use in the last decade of the practice of agencies "consulting" with Indians before decisions are made. This generally means that tribes, organizations, and individuals are given an opportunity to respond before "final actions are taken. The term "consultation" has been so frequently used that it has escaped notice that it represents a contradiction to "self-deterinination." and has been misused by bureaucrats for so long that its true meaning is lost. Out of government "consultation" has grown the phenomenon of "appointed advisory boards." These boards have grown in subject and number to the point that they add to the competition with Indians for Federal funds. In the consideration of any substantive change in the delivery of services to Indians, suffice it to say, elected Indian boards that make decisions are a much better alternative. Tribal government functions best as an expression of the will of its people. This is particularly obvious when tribal institutions are permitted to function and protect their members against experimenta- tion and frustration by public officials. An atmosphere of mistrust and anxiety, fostered by previous experience, does not serve either Indians or the Federal Government. 92-185 — 77 16 234 FUXDAMEKTAL TRINCIPLES NEEDED The organizational structure, and pliilosophy for the delivery sys- tem of Indian programs must be revised to provide for efficient man- agement of Indian atiairs. Because of the unique trust relationship between the United States and Indian tribes and the incredible com- plexity of the present system there is a necessity for the creation of a separate governmental structure for all major Indian programs. As reflected in previous chapters, an understanding of the perma- nency of tribal government, the nature of the Federal-Indian trust relationship described therein, and a cooperative understanding of the relationship of each to the other is essential before any Federal ad- ministrative organization can be effectively designed to achieve agreed-upon goals. Public Law 0;>-580, which established this Com- mission, cites a congressional finding "(a) the policy implementing the relationship has shifted and changed with changing administra- tions and passing years without apparent rational design and witliout a consistent goal to achieve Indian self- sufficiency.'''' [Emphasis added.] The establishment of institutional measures to achieve Indian con- trol without impairing their special status cannot be resolved without addressing Indian-felt needs, and then devising a functional system which will provide a way to satisfy those needs. The AlPIiC attempt- ed to establish a record of Indian need through testimony and special submission from tribes directly. Some sense of Indian desires has been gained, but the only way to actually determine Indian priorities is to establish a program/planning/budget system which permits- these priorities to be manifested. The application of a "zero base" budget process would be very helpful in such a system. The executive branch has the responsibility to not only account for, but also to evaluate Indian programs. The present system is an accum- ulation of Federal programs which has never effectively been reevalu- ated or assessed for effectiveness or efficiency. The program parameters are too restrictive. There is excessive overlap and uncoordinated efforts causing duplication by several agencies. The present system prevents Indian tribes from efffctively controlling the processes which determine their status present and future. A planning assessment by the General Accounting Office in 1975 reported : We bolieve that coordination of Federal efforts at the reservation level is needed for all Indian tribes and that evaluations of the type covered in this re- port should lie made for all tribes. AVe therefore recommend that the Office of Management and Budget take the necessary action to insure that : an approach is developed which will coordinate Federal efforts at the reservation level.'" continuous evaluations are conducted of the effect that Federal programs have on the standard of living at Indian re.'servations inchiding developing information systems to support such evaluations, and annual i-eports are submitted to the Congress on programs made in improv- ing the standard of living of reservation Indians and on any needed changes in legislation to improve the effectiveness of Federal programs. •■'= A prpvious GAO roport. "Improving Ferlprally Assisterl Business DpvPlopment on Inrllan Rpsorvations" (RED-7.5-371. .Tiinp 27. 1975>. mafle a similar recommpiulation \Tith rpsppct to biisinpss dpvplopmpnt programs. The above recommendations expand the earlier one to apply to all Federal programs. 235 If early action is not taken, we recommend that tlie Congress enact appropriate icuislation.* The summary of findings of the American Indian Policy Review ■Commission will indicate that Government programs are too complex and lack coordination. This chapter will discuss fundamental ap- proaches to the problems which heretofore have been beyond the per- ception of Fedeial administrators. Any detailed plan will have to be developed l)y the executive branch workina" in concert with Indian people. The sum total of written testi- mony, hearings, and an examination of the record reveals that there were certain common elements in Indian statements. In addition state- ments were examined by the Commission from Indian position state- ments and resolutions from the past.'^ An analysis of the entire record shows that there are certain pi'ccepts contained in all the Indian statements. The discussion of the problems of Federal Indian administration should begin by describing the neces- sary fundamentals of a contemporary and elfective Indian administra- tion: Develop a program delivery system committed to the deliver}^ of services, grants, and contracts directly to tribes and native communities. The first priority should be on trust protection and services as well as for proirrams dedicated to the promotioii of economic self-sufficiency. These programs should be characterized by: Priority provisions for adequate trust protection and services Broad program parameters with maximum latitude Direct grants and contracts Separation of direct program and Federal agency admin- istration sujiport costs Minimal Federal administrative cost Develop an Indian budget system from a "zero base." consistent with long-range development plans based on tribal needs and ])riorities. This system should be designed to provide that those needs effectively constitute a submission, to the executive branch and the Congress, of a national Indian budget request. Such a process, although recogiiizing congressionar limitations, would ]?rovide an adecjuate system for determining tribal priorities. The process slioidd have mininunn interference jn-ior to submission to Congress— tribes retaining the right to appeal, as per existino- statutory provisions.^^ '^ Develop a system for the Federal coordination of special Indian and domestic assistance programs to be established at the tribal or community level — such coordination to be performed by one agency at the direction of the tribal officials. This system should be miplemented at the direction of the executive branch and should be periodically monitored to assure interagency compliance. ^(VMinnrollpi- nenor.-il of tlie T^nited States. General Accniintiiiff Office Rerjort tn the x>Z^^H'-'"^^ Conjrreh^s of American Indians, report prepared for the \i7iericnn Tndi-m PrtritierTo'ooi"'." •"^^''""- •'""^ ^^"'' "'^" Exanunation Sf HistoHeal IncSn'poUciefaml »25r.S.C. sec. 476. 236 Develop a system by which the executive branch establishes provisions for the monitoring, evaluation and audit of programs so that they can be utilized more efficiently. Such a system should also have provisions for a published accounting, separatmg ad- ministration and program, and reporting to Congress, the Indian people, and to the appropriate levels of the executive branch. This should be done on an annual basis. Develop a system of technical assistance which provides support directly to tribes, primarily through grants, which would enable them to hire from the open market. In the case of Federal em- ployees in the Indian service, future recruitment should be limited to highly qualified and experienced technicians rather than gen- eral administrators. A resolution of the fundamental issues left to be resolved by the Indian people and the Federal Government requires an evaluation of" needs compared to how the efforts to address these needs are admin- istered. x\n appropriate and effective working relationship can be achieved if tribal control can be fostered. Countless Indian statements over the past 77 years have given us the recipe for success. History of Federal Administration of Indian Programs introduction Today, most Americans think that there is one agency, the Bureau of Indian Affairs, which administers programs directed to Indian people. Although there are a number of agencies which now serve Indian people, the public perception is partially correct. The Bureau of Indian Affairs administers the majority of the Federal Govern- ment's Indian programs, and throughout history, it has held almost singular control in this area. Since one agency has borne the major responsibility for implementing Indian policy, the orientation, struc- ture, and organizational flexibility of that agency has been of primary importance when new policy guidelines have been determined in Indian affairs. The history of Federal administration represents a struggle that has gone on in bureaucratic offices largely without the public's attention, and long after congressional debates. This often- ignored history shows that obstacles to Federal Indian policy are not always legal, or theoretical, or political, but quite often, administrative. BEFORE THE ESTABLISHMENT OF THE BUREAU OF INDIAN AFFAIRS 1775-1832 The need for formal and legitimate procedures to carry out the Federal Government's policy toward Indians has existed as long as the Federal Government itself has existed; that is, from the time the Federal Government was organized on a continent which was popu- lated mostly by Indian people. As early as 1775, representatives of the American colonics in the Continental Congress created three depart- ments of Indian affairs and appointed commissioners to make and 237 maintain treaties of peace and friendship with the Indians^ These officers were to represent the colonies' interest in their dealings with Indians, but were not to interfere with the mternal affairs of Indian nations. Such interference would have had disastrous consequences for the colonists. As a result this small bureaucratic development occurred without any suggestion that the American government might ever try to assert its will in Indian communities. This fact was noted by the first scholar who studied the Indian policy of the Continental Congress, at a time when Indian nations were not so powerful as they had been in 1775. He observed that at the time Indian policj^ was first envisioned, "it was not contemplated * * * that Congress should have "any legislative power over the Indians." ^ It was clear in these early stages, however, that the national Congress had the exclusive govern- mental authority to regulate trade and make treaties with Indian tribes. After the Declaration of Independence, the Continental Congress found it difficult to administer Indian policy and wage the American Eevolution at the same time. Since the military aid of Indian nations, ^particularly in New York State, was crucial to the war effort, Indian affairs was given top priority, but the administration of Indian affairs was largely turned over to the Board of War. "When Congress directed the Commissioners for the Northern Department on May 17, 1779 to consult with General "Washington on treaty matters and to follow his direction.^ it established the precedent of delegating its authority over Indian aff'airs. In 1776. Congress institutionalized this precedent by establishing two Indian departments, one in the North and one in the South, both of which reported to the Secretary of "War. The two superintendents of these departments were given the authority to issue licenses to citi- zens who desired to trade with or live among Indians. An administra- tive system was thus established for a peacetime relationship with Indian people, at a time when Indian relations were relatively stable and no dramatic new policies were being considered. Even greater delegation of congressional authority accompanied the drafting of the Constitution. "When Congress created the "War Depart- ment as a permanent fixture in the executive branch, it gave the De- partment wide responsibility for matters "relative to Indian Affairs".^" The "War Department continued to administer Indian policies for 60 years. Subsequent legislation continued to give the Department consid- erable latitude in administration. By 1832. when the Bureau of Indian Affairs was created, the Commissioner of Indian Affairs was described as having "the direction and management of all Indian afl'airs and of all matters arising out of Indian relations", under the general author- ity, of course, of die Secretary of "War. That Congress had delegated its power and established a firm base of authority for executive action in Indian affairs was clear within the first 50 years of Federal-Inclian relations. ^ Journal of the Continental Congress, vol. 2, p. 175. 5 Joseph Blunt, mstorical Sketch — The Jurisdiction Over Indian Tribes, p. 93. » Journal of the Continental Consress. vol. 14, p. GOO. "First Congress, Session, ch. VII (1 Stat. L. 49), sec. 1. 238 CREATIOX OF THE BUREAU OF INDIAX AFFAIRS ^* The Bureau of Indian Affairs was established within the War De- partment on March 11, 1824, by order of Secretary of War John C. Calhoun. From 1789 until 1824 the administration of Indian affairs, except for the Government-operated factory system of trade with the Indians, was under the direct supervision of the Secretary of "War. The factory system — from 1806 until it was abolished in 1822 — was administered by a Superintendent of Indian Trade responsible to the Secretary of War. The Superintendent's powers and responsibilities had expanded over the years as the Secretary delegated increasing authority to him. Thomas L. McKenney, the last Superintendent of Indian Trade, became the first head of the Bureau of Indian Affairs. The Bureau was operated informally within the War Department from 1824 until 1832, when an act of Congress ^- authorized the ap- pointment of a Commissioner of Indian Affiairs, who under the direc- tion of the Secretary of War, was to direct and manage all matters arising from relations with the Indians. In 1840, by an act of Con- gress.^^ the Bureau was transferred from the War Department to the new Department of the Interior, where it has since remained. Al- though Secretary Calhoun used the term "Bureau" in his order, the name "Office of Indian Affairs'' soon came into common usage. The name "Bureau of Indian Affiairs" was not formally adopted until 1947. THE STRUCTURE OF THE ADMINISTRATION OF INDIAN AFFAIRS 17S6-19 40 For many years the only positions, in the Wasliington office of the Bureau that were specifically authorized by statute were those of Commissioner of Indian Affairs and Chief Clerk. Until 1886 the Chief Clerk was the second ranking official in the Bureau, and he acted for the Commissioner in his absence. In 1886, Congress established the position of Assistant Commissioner to replace that of the Chief Clerk. The position of Chief Clerk was reestablished in 1906 and that of Assistant Commissioner was retnined. From 1910 to 1915. the Chief Clerk was designated as the Second Assistant Commissioner. The position of Chief Clerk was abolished in 1934. Since World War II there have been created the additional positions of Deputy Commis- sioner and Associate Commissioner, ranking above Assistant Commissioners. There were no formal subdivisions of tlip central office of the Bureau until 1846, when four divisions were established by order of the Secre- tary of AVnr. The namos of thpse divisionp -(-aried : bnt they were most commonly known as Land Division. Civilization Division, Finance Divisinii. and Filp« and Records Division. During the 19th century there were two principal types of field jurisdictions: superintendencies and agencies. Superintendents had 51 Thf> mntprial for this section, and lar^e spsmonts of siilispqiipnt spctlonF: of flils nrtni'n- istratn-p history r\rp rpprin+pr' frop"' "f^'^war'T F. TT'll. ProHniinrn-v Tnvpntorv NnTn''>pr ifio. Rppords of tlip Bureau of Tnclinn Affairs, the National Avoliivps. Wasliinirton 10f>5. The Commission wishes to express its gratitude for Mr. Hill's contribution to tliis seldom- stndipfl area of Indian Affairs. « 4 f^tat. r>cA. "9 Stat. .395. 239 general responsibility for Indian affairs in a geographical area, usually a territory but sometimes a larger area. Their duties included the supervision of relations among the A-arions Indian tribes in their juris- diction and between the tribes and citizens of the United States or other persons, and the supervision of the conduct and accounts of agents responsible to them. Agents were immediatel}' responsible for the affairs of one or more tribes. Until the ISTO's most agents were responsible to a superintendent, but some of them reported directly to the Bureau of Indian Affairs. Agents attempted to preserve or restore peace and often tried to induce Indians to cede their lands and to move to areas less threatened by white encroachment. They also distributed money and goods as required by treaties and carried out other provi- sions of treaties with the Indians. Gradually, as the Indians were con- fined on reservations, the agents became more concerned with educat- ing and civilizing them. The superintendency system is usually considered to have started with an "Ordinance for the Regulation of Indian Affairs", enacted by the Continental Congress on August 7. 1786. This ordinance estab- lished a northern Indian department and a southern Indian depart- ment, which were divided by the Ohio Uii-er. A Superintendent of Indian Affairs was authorized for each of these departments. These positions were continued when the nov; Government was organized under the Constitution. In 1789, Congress appropriated the necessary funds for the Govei-nor of a territory to serve ex officio as Superin- tendent of Indian Affairs, particularly i]i newly organized territories. The superintendencies located in an unorganized territory or in the States or where the duties of the superintendent were particularly arduous, a full-time snperintendent was appointed. Agencies were established at first in a somewhat casual manner. In 179-2 the President appointed four special agents, who were charged with special diplomatic missions. In 179.^, an act of Congress^* au- thorized the President to appoint temporary agents to resirle among the Indians. Eventually, the word "temporary" was dropped from their title, and agents became permanent Indian agents assigned to particu- lar tribes or areas. By 1818 there were 15 agents and 10 assistants or subagents. That year Congress passed a law^^ providing that all agents be appointed by the President with the advice and consent of the Senate. By the time the Bureau of Indian Affairs was established in 1824 the svstem of superiTitendencif^s and agencies was well orQ:anized. An act of June 30, 18.34." spef^ifi.cally authorized certain superintendencies and agencies. The President could discontinue or transfer agencies but was given no authority to establish additional ones. An act of Febmary 27. 1851.^"^ fixed the number of superintendencies and agen- cies, taking into account the greatly expanded area of conntry after the Mexican- American War and the settlement of the Oregon boundary dispute with Great Britain. The restrif'tions on the number of agencies were, in a sense, evaded bv the establishment of subagencies, which did not require congres- 1*1 Stat. S31. 5=3 Stat. 42S. " 4 Stat. 7?..5. 1- 9 Stat. 574. 240 sional approval. After 1834 most subagents became in effect regular agents, although they received less salary and were usually assigned to less important agencies. Additional agencies were also established by creating "special agencies". A special agent was often appointed to carry out some special assignment, but frequently si3ecial agents were simply regular agents appointed in addition to the authorized agents. Superintendents, particularly those in newly organized areas, often appointed special agents and acting agents of various kinds — some- times without authority to do so. The Bureau employed other kinds of agents. Purchasing and dis- bursing agents were concerned, respectively, with obtaining goods and with distributing either goods or money. Emigration agents assisted in tlie removal of the Indians from one area to another. Enrolling agents were appointed to prepare rolls for annuity disbursements, land allotments, or other purposes. There were also treaty commissioners, inspectors (beginning in 1873), and special agents assigned to some specific mission such as the investigation of the conduct of a regular field employee or the settlement of claims. Superintendents and agents in newly established jurisdictions were allowed a wide latitude of action. The assignment of agents was often left to the discretion of the superintendent. Agents were permitted to select sites for agency headquarters, subject to approval by superiors. Some agents had no permanent headquarters and spent much of their time traveling. Gradually, as the Indians were settled on reserves, the agencies became more fixed in location; better communications were established ; and the superintendents and the agents were replaced by Army officers, but in the following year most of these officers in turn were relieved of their duties and civilians were again appointed. It was a common practice, however, to detail Army men to duty with the Indian Service in periods of unusual disturbances or when civilian agents were unavailable. During the 1870's the Bureau allowed various religious denominations to recommend certain persons to be agents. The system of giving supervision over a number of agencies to a superintendent was discontinued during the 1870"s, and by 1878 the last superintendency had been abolished. Thereafter all agents re- ported directly to the Bureau of Indian Affairs. Inspectors and spe- cial agents, however, were sometimes given some supervisory authority over agents. In 1893, an act of Congress ^^ authorized the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, to assign the duties of Indian agent to a school superintendent. This action was needed to eliminate political patronage (school superintendents were under civil service regulations, but Indian agents were still ap- i:)ointed politically) ; moreover, the Indians, under the allotment system, were being divided into smaller, more scattered groups. All agents were gradually replaced by superintendents, who were not necessarily in charge of any school. The Bureau revived the term "agency" for field units, but the officers in charge continued to be called "superintendents". In 1879 the first nonreservation Indian boarding school was estab- lished at Carlisle, Pa., and other schools were established elsewhere. 18 27 Stat. 614. 241 The position of Superintendent of Indian Schools was established in 1883. For some years the Superintendent performed duties similar to those of an inspector, and he had little administrative authority. In time, however, he directed the Indian school system ; and, in 1910, his title was changed to Chief Supervisor of Education. Other supervisory positions were established for specialized activi- ties such as irrigation, forestry, Indian employment, law enforcement, health, and construction. The incumbents of these positions were re- garded as field officials, even though some of them maintained their headquarters in Washington. They developed their own elal^orate organizations, which in some cases included district systems. Since- these services operated outside the regular agency system and apart from the administrative divisions in Washing-ton, problems of con- flicting authority arose. In 1925 the position of General Superintendent was created. The former Chief Supervisor of Education was appointed to the new posi- tion and he was placed in charge of field activities relating to educa- tion, agriculture, and industry. In 1931 there was an even more sweeping change. Directors were appointed for specialized activities such as education, health, irriga- tion, and forestry. These directors were in charge of both field opera- tions and those of the Washington office. The Director of Irrigation, for example, was in general charge of both the Irrigation Service in the field and the Irrigation Division in Washington. By 1937 the Bureau had establishecl uniform districts for the various field services in order to eliminate the confusion that resulted from each service's setting up its own district system. After World War II a system of area offices was established whereby area directors were responsible for administering all Indian activities within their areas, including the supervision of agencies and other administrative units. Special- ists were expected to provide technical supervision but were relieved of executive responsibility. REORGANIZATIONS OF THE BUREAU OF INDIAN AFFAIRS 1S30-197 2 There were relatively few changes in the organization of the Bureau until 1907. The most important one was the 1819 transfer of the Bureau from the War Department to the Department of Interior where it remains to tlie present day. Tliis move was taken in order to change the administration of Indian affairs from military to civilian control, and did not affect the internal structure of the Department. All of the powers which Congress had delegated to the Secretary of War, relating to Indian Affairs, were summarily transferred to the Secretary of the Interior. Actual administration was also minimally affected by the transfer ; military officers continued to be employed as Indian agents. Furthermore, the transfer was less than secure; be- cause of conflict between tribes and frontier settlements. Congress continually debated transferring the Indian bureau back to the War Department. From 1873 to 1881 there was a Medical and Educational Division, which assumed some of the duties of the Civilization Division. The Accounts Division was established in 1876 : most of its functions had 242 formerly been assigned to the Finance Division. In 1884 the Civiliza- tion Division became the Education Division. In 1885 the Depreda- tion Division was established to process depredation claims; but, in 1893, it was consolidated with the Land Division. A Miscellaneous Division was established in 1889 to take over certain duties formerly assigned to the Office of the Assistant Commissioner, particularly the issuance of traders' licenses. Between 1907 and 1915 the Bureau's central office was repeatedly reorganized. The Land and Education Divisions survived; and the Education Division, in particular, was given expanded duties. The Finance Division was replaced by the Purchase Division. In 1909 the Purchase Division was consolidated with the Education Division, but in 1914 it was reestablished as a separate division. The name of the Accounts Division was changed to Finance Division. The Mis- cellaneous Division was abolished. The Files and Eecords Division was replaced by the Mail and Files Section, which became a part of the Office of the Chief Clerk. The office of the Law Clerk, separated from the Land Division, developed into the Law Division (later known as the Probate Division). An inspection service was organized and it became eventually the Inspection Division. A short-lived Division of Field Work (or Cooperation Division of Field Work, or Coopera- tion Division) was responsible for irrigation and forestry activities formerly assigned to the Land Division. The Division of Field Work was abolislied about the end of 1908, however; and responsibilities for irrigation and forestry projects were shunted about until 1912. Thereafter there were separate Forestry and Irrigation Sections, which seem to have been associated with the field service rather than the central office. A short-lived Indian Territory Division, in charge of the affairs of the Five Civilized Tribes, was consolidated with the Land Division. For several years there was also a Methods Division, which was responsible for developing office procedures and organization. Another aspect of the reorganizations during the 1907-15 period was the subdivision of the divisions into sections. There were no major changes in the organization of the central office from 1915 through 1923. In 1924 the Irrigation and Forestry Sections became full divisions and the Health Division (called the Medical Division until 1931) was established, assuming certain duties formerly assigned to the Education Division. In 1926 the Education Division was renamed the Administrative Division. In 1930, however, the Schools Section of the Administra- tion Division was made a separate Education Division; and in the same year the Industries Section of the Administrative Division was replaced by the Agricultural Extension and Industry Division (later the Division of Extension and Industry). In 1931 the Alaska Divi- sion of the Office of Education, in charge of educational and medical work for Alaskan Natives, was transferred to the l^ureau of Indian Affairs and its activities were gradually merged into those of the Education and Health Divisions. There was a major reorganization of the Bureau in 1931. Two po- sitions of Assistant to the Commissioner and a position of Chief Finance Officer (later Finance Officer) were established. Each of these 243 new officials "was driven supervisory control over several divisions. The Assistant to the Commissioner for Human Relations Mas in charge of the divisions of Education, Health, and Agricultural Extension as well as the Employees Section (formerly in the Administrative Division) and a new Miscellaneous Activities Section. Under this As- sistant was a Junior Assistant to tlie Commissioner in charge of mat- ters relating to general field supervision, whose office in effect replaced the Inspection Division. The Assistant to the Commissioner for Indian Property supervised the Land, Forestry, and Irrigation Divisions. The Chief Finance Officer was responsible for all financial matters; and he was in charge of the Fiscal Division (formerly the Finance Division), the Purchase Division; and the Construction Section (for- merly a part of the Administrative Division). The Probate Division was placed under the supervision of the Chief Counsel, who was in charge of all legal work of the l^ureau. The Chief Clerk remained in immediate charge of the "Washington Office and supervised the Mail and Files Section, the Statistics Section, and the library. The Ad- ministrative Division was abolished. In 1932 the Purchase Division Avas abolished and all purchasing activities were transferred to the Office of the Secretary of the Interior. For the next several years the organization of the Washington Of- fice was in a very confused state. In 1934, the position of the Chief Clerk was abolished and his duties weie assigned to an assistant to the Finance Officer, whose office developed into the Administration Branch of the Bureau. Xew positions of Assistant to the Commissioner were established, but the specific responsibilities of the incumbents were changed f rec{uently. Tlie Statistics and Construction became divi- sions. The Em))loyees Section, responsible for field personnel mat- ters, was abolished in 1039, M'hen the personnel work of the Bureau was centralized in a Personnel Division. The Meriam Report (1928) found many deficiencies in the admin- istration of Indian affairs. Among these were: (1) "lack of ade- quate, well-trnined personnel": (2) an inadequate system of public healtli administration: (3) "grossly inadequate" provisions for the care of Indian children in government boarding schools: (4) lack of evidence of economic planning; (5) "confusion" over legal and ju- risdictional matters: and (6) a failure to develop cooperative relation- shi]is with otlier organizations which could be of assistance. After tlie publication of the report, a change in policy was insti- tuted. Indian administration improved, and the Indian Reorganiza- tion Act was passed by Congress in 1934. This act was an attempt to respond to the wishes of the Indian people to remain Indian, to main- tain their tribal identity', and to control their own lives. Xew divisions were established for expediting the emergency pro- grains of the 1930's. These included tlie Civilian Consein^ation Corps — Indian Division (at first called Indian Emergency Conservation "Work) : the Roads Division: and the Rehabilitation Division, which was in charge of Y\"PA projects. The Construction Division handled WPA projects other than those connected with irrigation and road work. The Indian Organization Division was estalilishcd to super- vise the formation of tribal governments under the provisions of the Indian Reorcanization Act. 244 1934 also saw a highly significant but very subtle approach to re- organization of the Bureau. The Indian Reorganization Act con- tained a provision which sought to place Indian people in positions of authority so tliat they could administer Federal programs to In- dian people. Senator Wheeler, who authorized the legislation, strongly- defended Indian employment preference standards by agency, "It [the Indian Service] is an entirely different service from anything else in the United States, because these Indians own this property. It belongs to them." ^^ He concluded that civil service had worked "very poorly" in administering Indian ]:)rograms.-° Unfortunately, the Bureau has not carried out the provisions of the Act strongly enough to effect an overhaul of the Bureau's employment procedures.-^ In 1940 the Community Services Branch, the Resources Branch, the Administration Branch, and other branches were established. The Finance Officer redesignated Chief Administrative Officer, was put in charge of the Administration Branch. Each of these branches was made up of a number of divisions. In 1949 the terminology was re- versed — the branches became divisions and the divisions became branches. An Assistant Commissioner was put in charge of the Divi- sion of Community Services, and another Assistant Commissioner was put in charge of the Division of Resources. More recently there have been created a position of Assistant Commissioner for the Divi- sion of Administration and a position of Assistant Commissioner for the Division of Economic Development. The Division of Resources has been abolished. Since 1950, there have been various changes in organizational struc- ture and some significant attempts to reorganize the Bureau. The most important structural changes occurred during the Nixon Adminis- tration. In 1969 the Commissioner of Indian Aff'airs, Louis Bruce, reported to the Assistant Secretary for Land Management, Harrison Loesch, who had competing responsibilities for the Bureau of Land Management, Outdoor Recreation, and Territorial Affairs as well as tlie Bureau of Indian Affairs. Bruce established two Associate Com- missioners and five directors for Administration, Construction and Engineering, Finances, Education, Community Services, and Eco- nomic Development within the Bureau of Indian Affairs. As these directors began to pursue innovative programs, old-line bureaucrats felt the need for an intermediate voice in the structure, and a Deputy Commissioner was located between the Commissioner and his five Directors. This structure was overhauled after the Indian takeover of the Bureau of Indian Affairs Building in November 1972. Many personnel changes accompanied subsequent restructuring of the Bu- reau, and, for an interim period, no Commissioner of Indian Affairs was named. An Acting Commissioner headed the Bureau and reported to the Assistant Secretary for Management. In 1973, when Morris Thompson was appointed Commissioner of Indian Affairs, the Bu- reau was taken out from under the control of an Assistant Secretary, and the Commissioner was made directly responsible to the Secretary of the Interior. 1" Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cone-., 2d sess., pp. 256-257 (1934). 20 Ibid. " See also the Final Report of Task Force 9, part V, ch. II, pp. 163-213. 245 1?ECEXT DEVEL0P3HEXTS IX THE ADMINISTRATIOX OF USTDIAN PROGRAMS Dispersion of Federal Indian Programs Among Various Agencies ^^ It was not until 1929 that consideration was given to the possibility that agencies other than the Bureau of Indian Affairs should become involved in tlie provision of services and assistance to Indians. Tliis view was first offered by Commissioner Jolin Collier as a part of the new policies which were to emerge from the Indian Reorganization Act of June, 1934.-^ Commissioner John Collier defined one of his objectives under the new policy as follows: To abandon the tradition of Indian Office monopoly over the Indian Service, by drawing all available Federal and State agencies into the Indian Service.-^ The prime motivation for this policy was due to Collier's conviction tliat the Indian Service should "shift from that of dispatch manage- ment to that of cooperative advice and teclmical assistance." -'" While many agencies of the Federal and State governments had begun modest efforts to serve the social and health needs of Indians after publication of the Meriam Eeport in 1928, there remained consider- able reluctance among agency officials to provide services. This state of affairs was largely due to uncertainty about the extent of BIA responsibilities and the tendency of the Bureau to guard its turf and assert its control over Indian Affairs. The Bureau of Indian Aff'airs, it was thought, was guilty of provid- ing insufficient and substandard services. The remedy Collier sought was a movement "toward the sharing of responsibilities with other agencies" -^ in a cooperative intergovernmental effort to solve the eco- nomic, social and health problems so star]^:ly revealed in the Meriam Report. As an example of how this system of cooperation could work, Collier asserted : Within the federal system, the outstanding unifications have been those be- tween the Indian Service and the CCC (Indian Emergency Conservation Worli), and the Indian Service and the Department of Agriculture (Soil Conservation Service). Continued or extended cooperation with the United States Public Health Service and with the Bureau of Animal Industry has gone forward. An entirely new collaboration with the Bureau of American Ethnology (Smithsonian Institiite) has been achieved. Important help to Indians has been given by the Federal Emergency Relief Administration, the Agricultural Adjustment Admin- istration, and "the Land Program through the Resettlement Administration. Not merely have these many cooperative and sharing arrangements increased the services given to Indians, they have, in addition, reacted in a stimulating and challenging fashion upon the Indian OflBce. Not a sequestration of Indians within the one federal bureau, but the largest use of all the agencies' helpfulness is the guiding principle in present Indian Affairs." The motivation for State cooperation was a result of Congress' pas- sage of the Johnson-O'Malley Act -^ which provided that the Secre- tary of the Interior could contract with State and local agencies for tlie purpose of providing precollege education to Indian youngsters. =2 This section was taken from Task Force Tliree's Final Report, p. 39-41. ■« Act of June IS, 1934. 4S Stat. 987. =* Records of the development of Collier's IRA Policy, RG 75, 56-A-58S. 39.^, 50660-15- 120 Federal Archives Records Service. Fort Worth, Tex. Indian Service Policies, galley 1. 25 Ibid. -"Ibid. -'■ Ibid. =8 48 Stat. 596 ; Apr. 16, 1934. 246 States in general were not willing to use State revenues to supply serv- ices and assistance to Indians due to the nontaxability of Indian lands — the principal source of social and educational revenues gen- erated by States. Through the 1950's and 1960's, the pace increased to place Indian support programs into other Federal agencies. Indian health was moved out of the Bureau of Indian At^'airs in 1955 to the Pul)lic Healtli Service to facilitate more "expert"' provision of services. The overriding policy was to "get the government out of the Indian busi- ness" — a policy which was to be achieved by moving tire responsibili- ties for Indian services into other agencies. State governments and out of the Bureau of Indian Aif airs. This policy was reevaluated with the advent of Indian self-determination emphasis fostered by "War on Poverty" legislation and policies begun in the early 1960's. Indian tribes began to see the advantages of multiple agency Federal assistance programs as the flow of direct funding and assistance began to boost tribal economies in ways the Bureau of Indian Affairs never could. The Great Society programs of the Johnson administration be- came the first major breakthrough for tribal governments.^^ * * * although Indian tribes were not specifically mentioned in the delivery system provided in the Economic Opportunity Act of 1964, a crucial policy de- cision was made by OEO to make Community Action Program grants to Indian tribes, frustrating an attempt by the BIA to serve as an Administrative conduit for these funds.^" The infusion of OEO funds into ti i])al coinmunities brouglit about vigorous efforts of tribal governments to serve their people by develop- ing economic and social programs that they administered. Though the quantity of funds was not large, they nevertheless provided Indian tribes with the first real opportunity to plan their own future. At the close of the decade of the 1960's and the beginning of the 1970's the Nixon administration began efforts to establish domestic assistance programs by expanding the Bureau of Budget into the Office of Management and Budget and through an effort to standard- ize Federal service regions, organize Federal regional councils, decen- tralize Federal granting authority to the regions and establish an integrated grant system for comprehensive development.^^ For Indians, these administrative changes were couched as methods for insuring tribal self-determination. But inconsistencies in the treat- ment of tribal governments, poor communications, and arbitrary pro- gram requirements combined to create distrust of the new system. The policy of self-determination began to be seen as yet another form of assimilation and termination. As these diverse programs for Indian people Avere placed in new agencies, it initially meant increased concern for and attention to Indian problems. In some ways, however, the newcomers to Indian Affairs have not been able to deal with Indian programs as effectively as the Bureau, with its century-and-a-half of accumulated expertise, has in the past. This trend now appears to have created a dift'usion of attention in Indian affairs rather than an increased or more widely 29 Study of Statutory Barriers to Tribal Participation in Federal Domestic Assistance Programs, University of New Mexico. AILC 76. 3» Ibid., p. 1. 31 Ibid., D. 2. 247 establislied attention to Indian affairs. This situation, which has do- .veloped from the histoiy of past administrative changes in Federal administration of Indian programs, is today's problem. This current status of Federal administration is the subject of subsequent sections of this chapter. The Present State of Feder^vl .VumixistTvAtion" of Indian Policy 0\TER\^EW The trust responsibilit}' of the United States to Indian people today includes the permanent obligation to protrct and enhance Indian lands, resources, and tribal self-government. The De{)artment of the Interior is delegated as the prime agent for insuring that the necessary services are provided. The trust, however, is not merely a matter of concern for the Bureau, but extends to the Federal Government as a whole. The entitlement to Federal services is additionall}', twofold for Indian people. That is, as citizens of the United States, Indian people are entitled to programs and services provided by the Federal Gov- ernment to benefit its citizenry on a level comparable to that of any United States citizen. Second, on the basis of treaties, statutes, and the course of dealings between the Federal (rovernment and Indian tribes, Indian people are provided Federal programs and services as part of the legal obligation of the United States in executing its trust responsibility to Indian people. However, Commission research con- ducted over the past year through public hearings, surveys and inter- views with tribal members and Federal officials has revealed that in spite of the dual entitlement Indian people Jiave to Federal services, they are not actually receiving services available to other citizens of the United States. FRAGilENTATlON OF FEDERAL INDIAN POLICY At least 9 cabinet-level departments and 10 individual agencies have programs affecting Indian peojile. Obligations for these programs totaled about $1.1 billion in 1974. Programs designed exclusively for American Indians amounted to about $950 million and programs with Indian set-aside funds amounted to $170 million. Furthermore, 5 temporary committees are engaged in studies which will have a direct impact on Indian interests. The major departments with multiple programs relating to Indians are: Interior; Health, Education and Welfare; Agriculture; Housing and Urban Development ; and Connnerce. The Departments of Labo?, Transportation, Treasury, State, and Defense also have major pro- grams of importance to Indians. Along with these, the Department of Justice handles most of the legal problems affecting Indian rights. ^ The independent agencies with programs affecting Indians include : Federal Energy Administration, Environmental Protection Adminis- tration, the Federal Power Commission, the Commission on Civil Rights, the Small Business Administration, the Occupational Safety and Health Review Commission, the Equal Employment Opportunity Commission, and the Marine Mammal Commission. 248 Existinn; alono-side of these are numerous temporary commissions whose studies and functions will imdoiibtedly affect Indian interests. Thev include such org-anizations as the AIEPC, the Commission on Water Quality, Commission on National Policy on Gambling, and the Community Service Commission. The purJDOse and goals of many Native American programs are not adequately defined. This often leads to overlap and duplication of programs' within the different agencies. Despite this overlap, many agencies provide such limited programs that even in combination, they fail to adequately meet the needs of tribes or individual Indians. One example of this can be seen in the area of Indian housing con- struction. HUD is responsible for constructing housing units for Indian people. Program regulations state that HUD will construct the buildings if HEW agrees to provide plumbing and sewage facili- ties. Still another agency, BIA, is responsible for the construction of the roads leading to the home. As a result, HUD cannot begin con- struction until it has a commitment from HEW to put in the water facilities. HEW cannot agree to put in water until it has the exact location of the house. HUD, in turn, cannot provide the exact location of the home until the BIA stipulates where it will put in the roads and driveways. These problems are compounded by the fact that each of the agencies involved receives separate funding from Congress. As a result, it is possible for HUD to have money available to construct homes but be prevented from doing so because HEW does not have the funds neces- sary to put in water systems or because BIA does not have the money to build roads to reach the homes. This overlap in Indian administration also extends to State and local governments. Indian people may qualify for programs in three different ways : as tribal citizens, State citizens, and Federal citizens. While this sounds like an ideal situation, the result is quite often the opposite. For example, a State social service agency and HEW may both offer welfare programs to an Indian individual. However, the State may refuse to allow tribal participation in this program because it believes that Indians living on a reservation are a Federal responsi- bility. Federal agencies, on the other hand, may fail to provide a pro- gram of this type because they feel that such programs are already covered at the State level. As a result, Indian people find themselves excluded from State programs with no recourse through Federal channels. This bureaucratic structure also creates other negative situations. Because of the layers of Federal, State and local employees charged with administering Indian programs, decisionmaking powers are often denied Indian people. One result of this bureaucratic entanglement is that Indian people do not know which agency to approach Avhen they need assistance. Because of the complexity of many Indian programs, there is a serious lack of coordination both within and between Federal agencies. As a result, Indian people often fail to realize many of the benefits intended for them. The confusion surrounding application procedures for the various diverse Indian programs scattered throughout the bureaucracy was 249 a topic of constant criticism in a number of task force hearings. In a hearing held by Task Force Three, for example, Eobert Trepp commented : * * * programs directed toward American Indians operate within one of the several departments at the cabinet level * * *. This creates so much confusion that it is becoming impossible for the tribes to operate within the executive framework. It is not that the tribes, individually and collectively, lack the intelligence, capability and technical expertise necessary to deal with these cabinet departments. To the contrary, it is these cabinet departments, individ- ually and collectively, which lack the capability and expertise to deal with the tribes and with each other.^ This lack of coordination often has very devastating effects in the construction area. The Department of Commerce, for example, will construct a hospital for tribal use without first checking to see if the IHS will have the necessary funds available to staff and equip it. IHS, not planning for this new program, does not have the money to provide immediate assistance. As a result, many fine facilities sit completed, yet unused. Within the complex bureaucratic structure, there also exists a num- ber of conflicts of interest which have been documented at length throughout this report. For example, the Department of the Interior which houses the Indian trust protection mechanisms also has the major responsibilty for the maintenance and development of Federal lands and natural resources. Because of this diversified area of re- sponsibilty, the Interior Department often finds itself representing both sides wlieji a controversy involving trust land arises. The above-mentioned examples provide only a glimpse of the prob- lems encountered in Federal administration. The following section will attempt to provide you an overview of the major departments involved in Indian affairs, their functions, and their shortcomings. COMMERCE DEPARTIVIENT Commerce Department has many programs for which Indians and tribes are eligible. Unfortunately, there is not widespread Indian participation in these programs. Indians are not informed of the availability of programs and the Department does not place much emphasis on Indian involvement. Significant efforts, thus far, have come from the Economic Development Administration and the Office of Minority Business Enterprises' Indian Desk. Economic Development Admhiistration The Public Works and Economic Development Act of 1965, as amended, provides Indian tribes with economic development assist- ance under its various titles. Beginning in 1967, the Economic Development Administration began a program with special emphasis on assisting Indian tribes residing on trust lands. The direction of this program has been pri- marily in the field of planning and technical assistance as well as the necessary "brick and mortar" money to construct community, =*= Prepared testimony of the Creek Nation, p. 2, cited in final report of Task Force Three, p. 42. 92-18J 250 training, and commercial facilities. As of 1976, Indian projects in 28 States have totaled $274,271,491 during the last decade. Although Federal contribution for non-Indian governnients is limited by a requirement of matching funds, Indian reservations are eligible for 100 percent assistance in most cases. In fiscal year 1974, $22,478,000 was set aside for the benefit of Indian tribes, out of a total EDA expenditure of $142,744,000. Although the program has provided substantial benefits to Indian tribes, it has also created many problems. Insistence by EDA in imposing their own project priorities and inadequate planning and feasibility studies for Indian projects have resulted in empty reserva- tion industrial parks and unprofitable and expensive reservation tourism projects. The promotion of an effort to bring industry onto the reservations has not developed employment and the original ex- pectation of improving the economy. The agency has not coordinated its programs with other efforts, and the results have been delay, con- fusion, and overlap with other programs. Oifice of Minority Business Enterpnse The purpose of this program is to promote the expansion, in size and number, of minority business enterprises, including those of American Indians. Assistance is made available in the form of proj- ect and research grants, advisory services, counseling, and the dis- semination of technical information. A minimum of 25 percent must be provided by a grantee from non- Federal sources; these funds may be cash or in-kind contributions. In fiscal year 1974, $1.8 million went to Indian beneficiaries under this program out of total expenditures of $41.5 million. This agency's largest asset is its willingness to fund entirely Indian- run organizations to assist small businesses in receiving help from private and public sources. The agency's greatest problem is its position of relative obscurity within the Department of Commerce structure. The Indian component does not have the organizational ability or prestige within the De- partment to properly coordinate with other agencies. The Small Business Administration The Small Business Administration is, perhaps, the least effective of the economic development agencies involved in Indian affairs. Fraught with uncertainty as to its role in Indian business develop- ment, with misunderstandings as to the status of trust realty and res- ervation citizen status in the banking system, and with confusion in its regulations as to recognition of eligibility of Indian-owned busi- nesses, the agency remains in a state of inertia in Indian development concerns. The Indian programs, and budgets of OMBE, EDA, the Small Busines Administration, and the BIA Economic Development Divi- sion, along with other economic development programs should be located in a single agency for better coordination a)id a more efficient delivery of Indian economic development budgets. In the interim, an 251 Indian office should be operated from the Office of the Secretary of the Commerce Department. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Assistance is provided to Indian tribes in establishing housing authorities to obtain benefits of HUD housing programs, in carrying out construction of the projects, and in managing them. Assistance is restricted to Indian tribes that are able to establish housing au- thorities and carry out programs under the U.S. Housing Act of 1949, as amended, and the rules and regulations of the Department of Housing and Urban Development. Funding has been a problem at HUD since the "freeze" placed on housing development by the Nixon Administration. Also, as described in the introduction to this chapter, many HUD programs are not coordinated with other agencies and, many times, needed housing are not built because of conflicts with other agencies. The most important program relating to Indian people is the Hous- ing and Community Development Program. Housing and Comrminity Development The Housing and Community Development Act of 1974 defines the recipient class as "units" of local government, and includes Indian tribes in this definition. Title I of the Act establishes block grants for community development and, although Indian tribal governments are eligible to compete for grants along with other local governments, no special set-aside is made for Indian tribes within title I. Title IV of the Act authorizes the Secretary of HUD to make loans to public housing agencies to help finance or refinance the develop- ment, acquisition or operation of low-income projects by such agencies. For purposes of title IV, "public housing agencies" includes Indian tribes. In 1974, the Indian set-aside under title IV was $53,671,200. Title IV of the Act revises sec. 701 of the Housing Act of 1954, making Indian tribes eligible for comprehensive planning grants. Funds are distributed among HUD's 10 regions on the basis of demand, need, and population. In 1974, the Indian set-aside under title IV was $1,636,000. The entanglement of housing regulations between HUD and other agencies must be resolved. As soon as practical, housing matters should be delegated to the individual tribes, who are in the best position to solve their own housing problems if given adequate funding and tech- nical assistance. DEPARTMENT OF HEALTH, EDUCATION, AND AVELFARE The Department of Health, Education, and Welfare is heavily in- volved in American Indian affairs. Indians are eligible for the same programs for which all American citizens are eligible, but this basic eligibility is often overlooked in the confusion found in the relation- ship between Federal, State and local departments and agencies. 252 The areas of major Indian involvement by HEW are Office of Education (OE), Office of Native American Programs (ONAP), and the Indian Health Service (IHS) . Office of Education The Office of Education provides funds and services mainly with three major programs. 1. Indian education grants to local education agencies: The objec- tive of this program is to provide financial assistance to local educa- tional agencies for the development and implementation of elementary and secondary school programs designed to nieet the special educational needs of Indian children. Awards are in form of grants. The program grants were $23,800,000 for 1974 and dropped to $22,700,000 for fiscal years 1975 and 1976. In addition to the reduction in funding, inaccurate monitoring systems make it unclear whether or not the designated funds are actually reaching their target populations. 2. Indian Education Special Programs and Projects: Grants are authorized under this project for planning, development, and imple- mentation of programs and projects for the improvement of educa- tional opportunities for Indian children. They are available to State and local education agencies, federally supported elementary and sec- ondary schools for Indian children, and tribal and other Indian com- munity organizations. Final funding decisions are made by the Commission on Education upon recommendations made by the Deputy Commissioner of Indian Education. Because the funding grants are decided on by persons far from the field locations, their decisions are often questionable as to whetlier or not they have been made on sound needs and priority bases. ?). Indian Education — Adult Indian Educatioii : This program pro- vides Indian education grants for planning, development, and imple- mentation of programs designed to stimulate basic literacy and high school equivalency opportunities for Indians in the shortest period of time. The program asks for a local commitment after Federal funding; however, it has been shown that local districts do not pick up on Fed- eral programs. "^^liile it is quite clear that Indian adult education needs have not lessened, the fiscal year budget has remained at $3 million since 1974. Indian Health Sei'^ice The Indian Health Service was created in 1955 as an improvement over the old BIA Ilealth Service. Health service to Indians has| im- proved, but there remains an ovei-whelming backlog of persons need- ing health care services. IHS does not reach all Indians, but many Indians are turned away by other institutions under the belief that IHS covers every Native American. IHS lack resources and does not coor- dinate with other agencies to deliver optional services. 253 Oifice of Native American Progra/ms The Office of Native American Programs, an office in the Office of Human Development in the Department of Health, Education, and Welfare, was established throiio:h the combination of the Office of Eco- nomic Opportunity/Indian Division, and the HEW Office of Indian Affairs in 1973 to respond to social and economic problems and needs encountered by Native Americans. The most commendable, and paradoxically the most problematic, feature of ONAP is the flexibility of its programs. Its gi'ants, which ranged from $10,000 to $5 million with an average of $293,000, were originally used for financial assistance for Native American projects, training and technical assistance, and research, demonstration, and pilot projects. Implicit in the breadth and flexibility of this base were broad pro- gram goals which led to possible duplication of services. As a result, in 1975 ONAP outlined a series of precise goals and .strategies narrow- ing its scope. Unfortunately, even with a narrowing of its project scope, ONAP faces difficulties. The program has not yet fully developed its own policy and administrative structure ; and these changes have not fully been communicated to the Indian population. The effectiveness of ONAP programs is clearly limited by its budget, which was only $27 million in 1975. DEPARTMENT OF AGRICULTURE Over the past 5 years, Indian tribes have defined their greatest po- tential for true aiid lasting development as those natural resources related to their lands: agriculture, aquaculture, timber, and encv^y. Of these four major resource ca-egories, three fall within the juris- diction and program expertise of the Department of Agriculture — agriculture, aquaculture, and timber; yet, little effort is made by TJSDA to design programs to assist tribes in the development of these areas of greatest economic development potential. An issue of ongoing concern to tribes is the issue of nutrition. Major health problems on Indian reservations are attributed \n large part to inadequate and poorly balanced diets. The two principal nutrition programs — the Commodity Food Distribution Program and the Food Stamp Progi'am — reside in the USDA; yet no program exists within the Department to address this major problem. The main USDA program that is designed exclusively for Indians and tribes is the Indian Land Acquisition Loan Program of the Farm- ers Home Administration. Indian Land Acqiusitlon Loan Program Guaranteed and insured loans are made available to tribes and tribal corporations by Farmers Home Administration. The objective of the program is to enable tribes to mortgage lands as security for loans with which to purchase additional lands within reservations. These loans totaled $9.9 million in 1974. 254 Elio-ibility is limited to recoofnized Indian tribes, corporations, and Alaskan communities, which are without adequate uncommitted funds to acquire needed lands within the r^servations and cannot obtain sufficient credit at reasonable terms from other sources. Use of the loans is restricted to the purchase of land for the benefit of a tribe or its members, and to pay expenses incidental thereto. Although the Sec- retary of the Interior must determine that lands to be acquired lie within a reservation or Alaskan community incorporated pursuant to the Indian Keorganization Act, review of the application and award of the loan is made by the local FHA. This is a valuable program for tribes to acquire needed land. The Department of Agriculture uses the nebulous standard that all loans will be secured in a manner that will adequately protect the Gov- ernment during the repayment period. Also, the small amount of money available ($0.9 million) does not allow participation by many tri])es in need of additional reservation land. jNIany rural Indians and tribes are dependent upon agriculture foi their livelihood. The USD A should make information on this program and the others it offers easily available to Indian peoples and tribes so they can more widely benefit from them. DEPARTMENT OF THE INTERIOR The Department of the Interior contains the agencies that most directly affect the lives of almost every American Indian. In the De- partment of the Interior lies the responsibility of virtually all Federal lands and resources including water. In the Department of the In- terior lies the trust protection of Indian lands and resources. And in the Interior Department lies the greatest conflict of interest, dealt with in detail through this report. The Bureau of Indian Affairs, although it comprises the largest agency within the Department of the Interior, remains a stepchild in priority of program emphasis. The Bureau of Indian A-ffaii-s The Bureau of Indian Affairs employs over 16,000 personnel on a permanent basis, and up to 18,000 including part-time employees. In fiscal year 1977 the BIA budget was $777,019,000. The BIA controls [)rograms in Indian education, tribal government, social services, trust protection, resources development, roads, law enforcement, and many others. The Bureau of Indian Affairs is, most of all, an inefficient organiza- tion. Its principal problem is its inability to deliver program funds directly to Indians. In fiscal year 1977, the BIA returned $29.5 million in unexpended funds to the U.S. Treasury, at a time when its area offices were telling Indian tribes that "self-determination" grant funds were not available.^^ Over the years the BIA has been seen by Indians as a paternalistic agency that did not respond to Indian needs. The BIA has many prob- as Interview with Joseph Amaral, joint funding coordinator, Intergovernmental Relations and Regional Operations Division, Office of Management and Budget. 255 lems that overlap and contradict each other. Attempts have been made to correct some of the shortcomings of the Bureau. The latest being the Indian Self-Determination Act, Public Law 93-638, which is hav- ing a limited success. The Bureau is commented on in depth later in this chapter. DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, PRCGSAM BUDGET SUMMARY [In thousands] 1973 1974 1975 1976 Availability 1977 estimate Operation Indian programs: 1. Education 2. Indian services 187, 326 116.230 27, 184 12,414 42, 855 184, 187 112, 885 29, 097 12,414 43, 159 226, 495 98, 603 70, 360 18, 661 65, 013 243, 085 129, 531 83, 578 21,337 73,746 2,115 255, 143 154, 240 101 374 3. Tribal resource development. . 4. Trust responsibility services 27, 450 5. General management — facilities operation 6. Navajo-Hopi settle program -.. 83, 143 4,875 General administration ' 6,200 5, 319 . TotaU 392, 209 386, 361 479, 132 553, 392 626, 183 Construction: 1. Irrigation systems 2. Construction, building and utility 16, 800 32, 219 16, 800 27, 200 26, 435 35, 369 30, 400 43, 522 30, 010 47, 091 Total Road construction: General road construction 56, 019 45, 539 50, 000 44, 000 43,000 70,000 61, 804 59, 500 (60, 500) (100, 000) 70,000 38, 000 20, 000 73, 922 66, 705 (66, 705) 77, 101 39, 075 (68, 544) 27, 205 Obligative authority Budget authority Miscellaneous appropriation: Alaska Native claims. . 70, 000 3, 000 .. 10, 000 30, 000 Revolving funds-loans Laon guaranty. ... .. "■"'i5,"d6o' Total appropriations 543, 767 543, 361 728, 436 777, 019 787, 359 1 General administration is now distributed and identified as such. -See the following table: 1975 1976 availability 1977 estimate Includes CSC employment and general programs. Including pay raise 479, 132 9,318 83, 453 553, 392 10, 474 63,786 589, 510 "11 500 Net increase over prior year •24,618 • Estimates need program budget summary, 1977 for actual comparison. Note; 1973 and 1974 used differing line items than present, rearranged for comparisons. DEPARTMENT OF LABOR The Department of Labor, Division of Indian and Native Ameri- can Programs (DINAP), administers title III of the Comprehensive Employment and Training Act. The CETA program has been a real breakthrough in Indian programs. A summary of Department of Labors Indian programs shows that titles II, III, and VI have dis- tributed $128,040,001 to 91,000 participants in fiscal year 1977. Between 84-85 percent of the total appropriations for the CETA programs are delivered directly to tribal and off-reservation Indian communities. Further, the maximum allowable level of administration permitted is 20 percent. Administrative cost per participant averages approxi- mately $231. 256 Indian GET A Program Title III of the Comprehensive Employment and Training Act of 1973 (CETA) provides grants for comprehensive manpower programs and services for the benefit of unemployed, underemployed and eco- nomically disadvantaged Indians. Eligible programs include skill and vocational training, public serv- ice employment, work experience, on-the-job training, and others. Eligible services include such items as child care and transportation. There is no separate appropriation for this program but it is funded by a set-aside of funds equal to at least 4 percent of the moneys allo- cated for the ijeneral manpower programs under title I of the Act. To date, the Department has not exceeded the minimum 4 percent floor established for funding the program. CETA grants may be made available to qualified prime sponsors which include tribal governments and other Indian organizations. In fiscal year 1976, approximately $50 million was expended under title III. Since then the program has expanded. A weak point of the program from the standpoint of many of the prime sponsors has been DOL's relative inability to provide more adequate technical assistance in a more timely fashion. While the pro- gram must be commended for its impressive delivery record to date, it should not weaken the programs of its Indian grantees by not having technical assistance available when needed. DOL Economic Stimulus — Strategy for the Future The Division of Indian and Native American Programs (DINAP) is presently preparing a program for the future to be directed at "economic stimulus" programs which will be concentrated on para- medical and health training; paralegal training; onsite management training; agricultural; road construction training; domestic fuel development ; emergency vehicle operation, and other program designs of a similar nature. These programs have been recently targeted by the President as areas for new Labor Department emphasis. This program is estimated to be expended at $40 million in fiscal year 1978. The relative success of the Indian CETA programs administered by the Department of Labor need to be examined closer by those who would attempt reform in Indian administration. An examination of the legislation may provide the answer since limitations on adminis- tration and specific program set-asides are provided for in the statute. Tribal Eligihility for and TJt'ilhation of Federal Domestic Assistance Programs The service delivery svv^tem, which provides Federal domestic as- sistance programs to eligible applicants, is generally administered through imits of State and local government. Of the $60 billion which was expended in Federal domestic assistance in 1976, 75 percent was administered through States.^* ^Tribal Government Tiask Force (Number Two) Final Report. 257 This system for the delivery of services places tribal gov- ernments in a position which is in direct conflict with established Federal policy and even the earliest Supreme Court decisions articulating the Federal-Indian relationship. ^^ This jurisdictional relationship is discussed in chapter 5. Because 75 percent of all Federal domestic assistance programs are administered through State governments, it is important to analyze the conditions in which tribal governments are forced to come under the jurisdiction of the States to receive Federal domestic assistance. Requirements of State incorpora- tion of tribal enterprises, for eligibility under some Federal domestic assistance programs (Small Business Administration Programs) are in direct conflict with the Federal-Indian relationship. This relation- ship guarantees the jurisdictional independence of tribal governments from State governments. The recognition of tribal sovereignty and the powers of tribal governments provides a solution to this problem, by asserting the power of a tribe as equal to that of a State, for incorpora- tion of tribally chartered enterprises and organizations. A State, as a dependent sovereign, has the power to recognize its political subdi- visions or enterprises as eligible units for Federal domestic assistance ; then a tribal government, which bears a similar status in the Federal system also must be recognized as having the power to incorporate the enterprises which come under the jurisdiction of the tribal govern- ment. Historically, tribal governments, as local governments eligible for Federal programs, are often overlooked in the planning stages of Federal programs. The problem is compounded further by a lack of sufficient congressional guidance of executive agencies charged with the responsibility of service delivery. Congress has authorized special Indian programs in virtually every Federal department. Nevertheless, Federal domestic assistance pro- gram agencies are hesitant in determining eligibility of Indians for Federal programs, and in using tribal governments as the primary service delivery mechanism on reservations. As a result, Indian tribes are denied the resources of a majority of Federal domestic assistance programs in their eft'orts toward development and self-determination. No effort is made to include Indian tribes in the majority of Federal programs, and to the extent that tribes do participate, it is often under adverse conditions. There is a great variety of mechanisms for delivery of Federal do- mestic assistance to the community level. Sweeping recommendations with respect to service delivery may not be appropriate in all circum- stances. The Congress is urged to adopt the policy that each Federal domestic assistance agency must recognize tribes as governmental units for the delivery of services. With such a mandate, the consoli- dated Indian affairs agency should coordinate all Federal agencies in developing procedures for such a delivery system, in conjunction with tribes themselves. Recent legislation suggests that tribal governments should be ac- corded full recognition throughout the system of Federal domestic assistance (General Revenue Sharing Act; Comprehensive Employ- ment and Training Act; Joint Funding Simplification Act; Indian SE E.g. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 258 Self -Determination and Education Assistance Act; Indian Financ- ing Act), Because of the highly complex nature of Federal domestic assistance, many inconsistencies remain in the treatment of tribal government. These deficiencies relate to the threshold question of the eligibility of Indian tribes and tribally chartered organizations and to the character of tribal participation in the delivery. Of the 598 Federal domestic assistance programs studied by the President's Council on Federal Assistance Review only about 78 had direct tribal pailicipation. It would require a study of mannnoth pro- portions to outline the specific steps needed to integrate Indian tribes and tribally chartered organizations into the delivery system of all 1,000 programs. A Special Action Office on Indians in the White House, acting under a strong congressional mandate, could work with the tribes and the various departments to develop an appropriate delivery system. It could also develop a planning mechanism to assure that goals are set by the tribes and that Federal dollars are targeted to reach those goals, while concurrently establishing an independent agency for Indian Affairs. The Congress, in creating these 1,000 programs, determined that they were of considerable importance in assisting State and local gov- ernments to meet pressing local needs. The promise of Indian tribal self-determination, repeatedly made by both the Congress and the executive branch, can hardly be implemented if Indian tribes are denied the right to participate in the basic programs available to every other government in the United States, Given the relative severity of social and economic problems in Indian communities and on Indian reservations, it is suggested that each domestic assistance agency should not oidy be required to serve Indians, but should be directed to devote a share of the total program resources in proportion to the need, rather than in proportion to the )->opulation as well. Congress has recognized the need for Federal domestic assistance programs to be made relevant to local governmental capabilities and needs in its passage of the Joint Funding Simplification Act. This Act authorizes the waiver of administrative requirements which force local units of government to set up a vast array of financial management and auditing the waiver of administrative requirements which force local units of government to set up a vast array of financial management and auditing procedures beyond their ordinary capabilities. The Act is targeted at reducing duplicatory procedures conducted by each Fed- eral agency, and is aimed at encouraging Federal agencies to cooperate with one another in responding to the needs identified by an applicant unit of government. The successful negotiation of an integrated grant, provided for under the Act, has been achieved by the Salt River Tribe of Arizona. Funding of 41 Federal domestic assistance and BIA pro- grams is coordinated into one integrated grant. The cooperation of the Federal agencies involved in the Salt River project has shown that joint-funding to meet tribal government-identified needs can be ac- complished, and that the entire Federal domestic assistance program deliveiy system can be coordinated for maximum effectiveness. As- suming the goal of the Federal Government in providing Federal domestic assistance programs to State, local and tribal governments is to assure such maximum utilization of funds and services, then the 259 implementation of joint fnnding mechanisms mnst be pursued tlirougli governmentwide cooperation among the Federal agencies concerned. T]ie Federal domestic assistance program delivery system should be made relevant to the congressional and Supreme Court recognition of the status of tribal governments within the Federal system, and the goal of economic self-sufficienc}^ articulated in the Indian Self-Detcr- mination and Educational xVssistance Act. To assist with implementation of this reconnnendation, to provide the program coordination that woidd be necessary to assure maxinunn impact from Federal resources, and to target Federal programs for maximum benefits for Indian development, the task force has recom- mended the creation of a Temporary Special Action Office on Indian Afl'airs in the White House. ACCESS TO PROGRAM INFORMATION Access to Federal program information is a crucial preliminary to the use of Federal domestic assistance programs by all governments, including tribal governments. The Federal Government provides Fed- eral program information tlirough its annual issuance of the Catalog of Federal Domestic Assistance Programs, which contains descrip- tions of the 1,030 Federal domestic assistance programs now oifered by the 55 agencies of the executive branch. The catalog is distributed to all state, local, and tribal governments and attempts to provide all relevant information necessary to determine eligibility, by the ap- plicant government. Eligibility is defined in the authorizing legisla- tion of a program act or in the administration regulations associated with an act. However, since Congress and its numerous committeas, established to deal with the entire scope of the Federal responsibility have not always been conscious of the political status of tribal governments in creating authorizing legislation for Federal domestic assistance pro- grams, tribal government eligibility for any particular domestic as- sistance program may not be specified in the catalog. A tribe has no means of ascertaining statutory barriers in the authorizing legislation or program act, which would j^revent tribal government eligibilitj^ for a given program. Additional information, relating to Federal domestic assistance programs, is made available to state and local units of government through the Intergovernmental Cooperation Act of 1968. Among its stated purposes is the establishment of a commission which would bring together representatives of Federal, State and local governments for consideration of common problems. A forum would be provided for discussing the administration of Federal grants and other ]5ro- grams requiring intergovernmental cooperation. In addition, this group would recommend the most desirable allocation of governmental functions, res]5onsibilities and revenues among the several levels of government. It would also recommend methods of coordinating and simplifying tax laws and administrative practices to achieve a more orderly and less competitive fiscal relationship between the levels of government. 260 However, at tlie time the Intergovernmental Cooperation Act was passed, tribal governments were once again overlooked as eligible miits of government that would benefit from and contribute to this process. Thus, the access to Federal program information affecting Indian people is denied tribal governments. The solutions to these problems are embodied in a bill now pending in Congress — the Federal Program Information Act, and a proposed amendment to the Intergovernmental Cooperation Act. If enacted, the Federal Program Information Act would create a data base of all Federal domestic assistance programs, and would provide com- prehensive coverage of authorizing legislation, program acts, and ad- ministrative regulations. This bill has the potential of increasing the flow of Federal program information to tribes. If properly constructed it would specify tribal government eligibility, as well as administra- ti're requirements which might affect the prime sponsorship status of the tribal government. TECHNICAL ASSISTANCE Technical assistance for Indian tribes foster their socioeconomic stabilization and development. It is a crucial aspect of any effort by the Congress or executive branch to encourage Indian people in the performance of their own management, administrative, and technical functions. Technical assistance should be made available primarily for development of threshold management capabilities and to provide eco- nomic support activities. This type of assistance is presently the re- spoiisibility of several departments within the executive branch, in- cluding the Office of Native American Programs and the Indian Health Service in the Department of Health, Education, and Welfare ; the Office of Minority Business Enterprises and Economic Develop- ment Administration in the Department of Commerce; and other offices in the Departments of Labor and Housing and Urban Develop- ment. Concentration of technical assistance requirements and potential, however, is appropriately within the Bureau of Indian Affairs. Indian tribes and organizations are not encouraged to, and are often discouraged from, making their own need assessments for technical assistance. Agencies make evaluations and attempt to apply national solutions to local situations. Agencies predetermine contractors and technical assistance person- nel, in violation of Federal procurement and regulations and existing Indian preference laws. Contractors and personnel hired feel they are responsible to the Federal Government, rather than to tribes. Federal employees retained for technical assistance projects are often not specially trained in the subject area. Federal domination prevents tribes and organizations from increas- ing their own capacity and maintaining technicians of their own. This perpetuates the system of Federal control. Autocratic three-tiered Federal structures use appropriations as a source of power, rather than for direct assistance. Each level shares in this distribution of power within the bureaucracy, rather than direct- inf>- it to tribes. 261 111 most cases, Federal agencies actively resist, more than encourage, the development of corps of Indian technical specialists. This per- petuates the employment of Federal bureaucrats and non-Indian contractors. The present Bureau of Indian Affairs' technical assistance service is one of the principal sources of these problems. The organization is inadequate for many reasons. Personnel are not appropriate to the re- quirements of a specialized technical assistance effort. There are no specialized technicians within the Bureau of Indian Affairs to provide for the rapidly increasing demand for specific expertise in highly technical areas. The depth of training and necessary experience pre- cludes using or retraining existing personnel, in most cases. The pres- ent autocratic organizational structure is also not flexible enough to permit technicians to move quickly from area to area, ]Many reasons can be given why an organization, geared to super- vision and trust administration, is not appropriate to assist Indians in highly specialized and technical areas. The important point, however, is that new methods must be devised to deliver services more directly to Indian tribes. In evaluating methods to adequately provide services to tribes by Federal agencies the obvious is often overlooked. It is clear that one of the methods which could be used is to deliver contract funds directly to tribes, for the purposes of purchasing their own technical services. There has been a great amount of success in this area. As a matter of fact, many of the more successful tribes, who have developed sophisti- cated and efficient management and economic systems, have done so by purchasing their assistance from the open market. In many instances, initial technical assistance should be pro\dded to tribes to enable them to understand and use procedures for acquiring further technical as- sistance. According to the final report of Task Force Number Three : There continues to be, in spite of studies conducted in recent years, an inequity existins: in technical assistance and services delivered to Indian tribes. The tribes equipped with capable technical staff and financial resources are more successful than smaller, less well-developed tribes in preparing basic proposals to secure funds for Federal program assistance. The notion that all services must be rendered by civil service em- ployees is outmoded, if not completely obsolete. Other agencies within the executive branch have provided far more effective methods. For instance, the Office of Native American Programs and the Indian Desk of the Office of Minority Business Enterprises have provided for "call contracting". A tribe, enterprise, or individual may call on the services of a contract technician in a specific management or economic area by making a request to the contractor or agency. In this procedure, aii assessment of the report is made, and a specialist is assigned who must file a written report in a predetermined number of days. The Economic Development Administration already contracts virtually all of the Indian technical assistance efforts. Another helpful procedure would be the establishment of a national skills bank. This bank, or list of available technical talent, could pro- vide, as one of its many byproducts, an inventory of skilled contract technicians in many management and technical areas. Individuals 262 could be made available on a schedule basis and be reimbursed by a national technical assistance contract funded by executive departments. Associate consultants and prime contractors should, of course, be predominantly Indian. Indian preference in employment and contract- in*,' throuo:h sec. 7(d) of the Indian Self-Determination Act, should be observed. Eequirements in each of the technical positions in this crucial area would be based on highly specialized qualifications. The contract funds could be provided collectively by the Department of the Interior, the Department of Commerce, the Department of Housing and Urban Development, the Department of Labor, the De- partment of Health, Education, and Welfare, and the Department of Agriculture, as well as others. There are more than adequate amounts of technical assistance financing available from existing ap- propriations and executive authority. For instance, through the Indian Financing Act, the Bureau of Indian Affairs is permitted 4 percent of its annual appropriations for technical assistance. There is no proviso that this budget has to be utilized by civil service employees. The Indian Self-Determination Act also lias ample funds available which are presently administered by both the BIA and the Indian Health Service. The early poor ad- ministration of P.L. 93-638 grant and technical assistance funds, by HIS and BIA, suggests that Federal agencies often are not the best administrators of self-help mechanisms. The fundamental precepts of self-determination stand in stark con- trast and opposition to agencies which commandeer Indian appropria- tions for their own purposes and turn a facilitating mechanism for direct use by Indians into a BIA or IHS program. Indian tribes, organizations, and individuals need money to exercise self-determina- tion and to purchase technicians directly who are not available in either one of those agencies. This is essential to accomplish their man- ngement, training, and economic development goals expeditiously. A recent review of the Indian Technical Assistance Center Activ- ities in Denver and on some of the reservations, prompted an observa- tion that has been felt by Indian people over a long period, i.e., that the sooner tribal level control was developed and used the sooner the tribal participation effort would become productive. While the revicAv has a critical complaint, it does recognize certain organizational thrusts not heretofore recognized as significant by the Bureau. The following is quoted from the Review of the Indian Technical Assistance Center (ITAC) at Denver, Colorado, by Robert Hemmes dated January 14, 1977: The unique opportunity the ITAC has before it is to fill the void between the Bureau and the tribes that has been the source of years of castigation and criticism of the Bureau. Until recent years no real opportunity existed for a remedy, but through evolution of a series of contradictory and criss-crossing policies over the last 100 years, we have now arrived at the fitst opportunity to implement Indian self-determination. Necessary legislation has been passed and attitudes have come into consonance whereby the Bureau may assume its role of providing technical support and resources to assist in Indian self-gov- ernment and self-determination. The missing link in the Bureau/tribal relationships is the lack of a responsive unit of the Bureau to listen to tribal leaders and to inventory tribal needs and opportunities. The Bureau is hierarchically oriented — it carries out legislation, issues manuals to its staff, writes procedures for tribes. ITAC is tribally 263 oriented — it is responsive to tribal attitudes and needs. In current argot it could be said that the Bureau worlds from the "top down" and ITAC operates from the •'bottom up." Unfortunately, there is an "error of closure" where they meet. Ideally the Bureau would provide the function, or process, of integrating Fed- eral legislation and resources with tribal governments and needs. Through cir- cumstance the Bureau is not providing this function and ITAC has filled the gap. The unique opportunity facing us is to culture and nurture ITAC into an operating model for the process of delivering obligatory and necessary Federal support and resources to tribal governments and the Indian people. The process should be a two-way street. The process should "see" the Federal/bureaucratic constraints and charters, but also the tribal and Indian viewpoints, goals, and needs. The process should reconcile the two ends of the street in an optimal manner. This sort of process would be innovative not only in the Bureau, but in the Federal government. The Federal departments are much like the Bureau in their isolated functionally oriented charters. They, too, put the burden of coordination on their constituencies — the State and local governments. Metropolitan Plan- ning Organizations, etc. The function of government, whether in the Bureau or the Federal department, is to do for the people what the people cannot do for themselves either individually or through their local (tribal) governments. The Federal government (Bureau) .should at least be capable of organizing and coordinating its own resources to support the people. The people and the local governments should at least be capable of choosing their own feasible future from among the alternatives and organizing, inventorying and coordinating their needs and requests to the Federal government. And there should be a process for the reconciliation of the two. The ITAC opportunity is to continue the momentum and goodwill it has with resi>ect to being responsive to the tribes, but temper this with its Federal obliga- tions. ITAC, with encouragement and guidance from the Bureau could become the model for the missing process. Eventually, the Bureau could emulate the ITAC model and escalate the pro- gram from a process to deliver small and scattered projects to one that would turn on the full force of the J^ederal $2 billion per year in an optimal manner for the enhancement of the welfare of the Indian people. INDIAN PREFERENCE IN CONTRACTING The use of Federal contracting and procurement to enhance Indian economic development and promote Indian enterprises has had little impact. Despite large Federal expenditures, unemployment among American Indians still far exceeds the national average; the income level of tribal peo])le is still far Iwlow the national average; and the number of viable Indiaii-owned economic enterprises remains low and is increasing at a pace far slower than for other minorities. Since early 1975, a primary focus of the eifort to upgrade the eco- nomic situation of American Indians has been the Indian Self-Deter- mination and Education Act (Public Law 93-638). This law estab- lishes a policy that the United States Government will transfer, from the Federal Government to the Indian people themselves, control of Federal services and programs for Indians. To achieve this transition. Public Law 93-638, section 7(b) requires all agencies of the Federal Government to subcontract, to the greatest extent possible, with In- dian tribes. Further the Act requires that preference be given to hiring Indian personnel for these programs. There are now three elements involved in evaluating Indian con- tractors either in applying for or engaged in contract work on Indian programs. Qualifications The standards of qualifications as now required in general procure- ment regulations by the General Services Administration are extremely 264 difficult to meet by new businesses, much less new Indian businesses. Evaluating the qualifications of the background of any contractor is necessary to determine : the successful experience of the prospective contractor ; the financial stability to manage and finance the operation; the qualifications for bonding under normal bonding processes ; the capability of drawing upon general craftsmen through labor unions or tribal governments. In assessing applications of new contractors, the majority of skilled Indian craftsmen desiring to enter the business usually lack the ex- perience normally required. It is initially necessary to acquire the necessary experience for supervision, training, and administrative ac- tivities involved in operating and conducting business as well as per- forming the work required under the contract. Technical assistance and training have been provided Indian people throughout the country for some time and now that contracting activities provide an opportunity for establishing privately owned contractors the general qualifications still eliminate them because of inadequate contracting experience. Inspection for Satisfactory Performance The technical assistance and training programs on Indian projects should be continued during the operation of a contract so that inspec- tions of compliance to specifications would be more in the form of assistance and an effort to keep the performance at a satisfactory level, rather than of such a critical nature that Federal inspections would tend to quell, terminate, or paralyze a contractor because of difficulties being experienced during the performance of work. The Indian Fed- eral efforts for giving aid through technical assistance, training and supervision and the development of self-sufficiency for tribal enter- prises or private entrepreneur is defeated unless a coordinated effort is continued through the contracting process. Inspections should be often or continuous with the objective in mind of helping the con- tractor accomplish satisfactory production. Terminxition of Contracts Under normal circumstances of Federal procurement regulations, deficiencies noted in contracts are justification for withholding pay- ments, stopping work, renegotiating specifications, or terminating and suspending operations of a contract. In the case of Indian projects under the authority of tribal governments, it should be required that no unilateral decisions of this nature be made to prevent discourage- ment or failure and bankruptcy of new Indian contractors. It should require a coordinated meeting of the tribal government representa- tives, the U.S. representatives and the contractor to discuss the means of correcting deficiencies. Should the ultimate decision be made to change contractors, employees should be permitted to stay, activities should be coordinated so as to prevent serious interruption of the total program. In the recommendations of the contracting study, such elements have been considered in the review of past history and fail- ures have developed even though EDA has provided feasibility sur- veys to all non-Indian contractors and providing its own technical 265 assistance and training activities. Yet, in this report, specifically in the development of industrial park projects, 90 percent of the projects have resulted in significant failures. It is considered necessary to nego- tiate contract supervision through private sources as well as taking advantage of governmental technical assistance. PROBLEMS IX PUBLIC LAW 93-63 8 IMPLEMENTATION A major reason for the limited success achieved in the field of In- dian management and economic development is that Federal agencies have failed to implement the mandates of Public Law 93-638. This conclusion is supported by a special study ^^ conducted for the Amer- ican Indian Policy Review Commission. Widesj^read confusion exists among the various agencies as to the scope and applicability of the Act. Several agencies simply do not see the Act as applicable to their programs. Other agencies (DOL, DOT and HUD) recognize the Act as applicable only to those programs which are statutorily mandated for the benefit of Indians. Even among those agencies accepting Public Law 93-638, there is a prevalent feeling that the Act conflicts with existing Federal procure- ment regulations and with Executive Order 11246, which requires all Federal contracts to include a clause prohibiting racial discrimination. The American Indian Policy Keview Commission's special contract- ing study cites several other reasons for the failure of Federal con- tracting to significantly increase Indian self-determination. Study interviews demonstrated that Government agencies consistently fail to recognize tribal sovereignty and the unique trust and treaty obliga- tions of the Federal Government to American Indians. The Small Business Administration's policy discriminates against communal ownership and tribally chartered corporations. This effects situations where bonding is required of an Indian contractor. The lack of a list of Indian contractors has made it difficult for agency contract officers to identify qualified Indian contractors. The BIA maintains the most recognized list but even this is limited. Sig- nificantly, the lack of an Indian contractors' list implies that qualified Indian contractors are unavailable. The absence of a govermnentwide policy to provide clear direction in standard contract language was identified as a major obstacle to Indians who do manage to secure government contracts. OLD PROBLEMS The Bureau of Indian A fairs The Bureau of Indian Affairs was established in 1832," to imple- ment those duties of the Department of the Interior as the delegated prime agent in carrying out the United States' trust responsibility to Indian people. The trust principle includes the permanent obligation to provide those services necessary to protect and enhance Indian lands, resources, and tribal self-government. In addition, under the =6 Tribal Government Task Force (Number Two) Final Report, pp. 41—42, ^ 22d Cong., 1st sess., ch. 174, sec. 1. 92 185—77 18 266 Snyder Act of 1921,^^ Congress further authorized expenditure of ap- propriations by the Bureau of Indian Aflfairs for the general support and "civilization" of Indians.^^ To accomplish these ends, the Bureau of Indian Affairs, by their own varying estimates, employs between 13,000 and 18,000 permanent and temporary employees and provides services under 33 program title, all of which are specifically targeted at providing services to Indian tribes and their members. Administrative Problems Determined by the BIA Management Study The delivery system through which Bureau programs are adminis- tered is composed of a central office located in Washington, D.C., 12 * area offices representing broad regional divisions, and 82 agency offices representing subordinate field installations. The inadequacies of this complex organizational structure in establishing an effective service delivery system has been consistently documented in the 75 studies of tlie Bureau of Indian Aflfairs conducted over the past 25 years, in- cluding the most recent BIA Management Study ,■*" mandated by this Commission under Public Law 93-580. Moreover, complaints of In- dian people addressing the Bureau's service delivery system number in the thousands. The Bureau is a frequent target of criticism both by the Indian people and Congress. Therefore, numerous studies have been under- taken by various Federal agencies and other organizations. The last major comprehensive review was the Meriam Report of 1928, which helped foster widespread reforms during the 1930's. However, since the original intent of these reforms has been compromised and dis- torted, urgent problems and confusion as to Indian goals and actions led to the creation of the American Indian Policy Review Commission. A review of the findings of each of these studies points to problems in administration of the Bureau programs which are directly related to the organizational structure of the Bureau. The layered system of administration which exists in the Bureau means that out of every dollar targeted for Indian programs, the costs of administration for each level of Bureau organization must be extracted first. Estimates of that percentage of each Indian dollar which is used to administer the BIA organization range from 78-90 percent. After administrative costs for program operation have been extracted at each level, there is only a small amount of funds left to operate a program at the reserv- ation level, often too small an amount to effectively deliver services. 38 25 U.S.C. sec. 13. 39 The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appro- priate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes : General support and civilization, including education. For relief of distress and conservation of health. For industrial assistance and advancement and general administration of Indian property. For extension, improvement, operation, and maintenance of existing Indian irriga- tion systems and for development of water supplies. For the enlargement, extension, Improvement, and repair of the buildings and grounds of existing plants and projects. For the employment of Inspectors, supervisors, superintendents, clerks, field matrons, farmers, physicians, Indian police, Indian judges, and other employees. For the suppression of traffic in Intoxicating liquor and deleterious drugs. For the purchase of horse-drawn and motor-propelled passenger-carrying vehicles for official use. And for general and incidental expenses in connection with the administration of Indian Affairs. Nov. 2, 1921, c. 115, 42 Stat. 208. *" BIA Management Study, Final Report of the Task Force on Federal Administration and Structure of Indian Affairs to the American Indian Policy Review Commission, 1976. 267 Indian people question the Bureau's administrative overhead as it affects the level of services they receive and particularly question the need of the area offices. Decisionmaking is likewise impeded by a per- vasive lack of communication between agencies, area offices and the central office. Tribally generated suggestions for change in programs and services to better meet tribal needs is information that is slow to flow upwards, remedies to effectuate needed change must pass through channels which resist change and narrow the effectiveness of central office-generated problem solutions. The result is a breakdown in the service delivery system of Bureau programs. Indeed, review of the data collected by this Commission and contained in previous studies of the Bureau of Indian Affairs reveals that Indian people are not receiving the full degree of services and funds from specially targeted congressional appropriations earmarked for the benefit of Indian people. EXHIBIT III FISCAL YEAR 1976 EXPENDITURE DATA, ALL FUNDS BY OFFICE Banded Unhanded Total Per Indian (thousands) (thousands) (thousands) served Aberdeen $68,024.8 $21,007.6 $89,032.4 $1,823 Albuquerque... 39,351.0 9,847.3 49,198.3 1,449 Anadarko 23,708.1 1,402.5 25,110.6 1,059 Billings... 31,293.7 13,188.7 44,482.4 1,461 Eastern 13,237.7 1,756.0 14,993.7 960 Juneau 47,006.2 6,479.0 53.485.2 1,075 Minneapol.3 ._ 14,757.0 1,951.8 16,708.8 686 Muskogee... 28,604.1 15,917.2 44,521.3 712 Navajo... 174,447.0 48,638.0 223,085.0 1,632 Phoenix.. 86,064.5 34,398.8 120,463.3 2,719 Portland 76,721.1 19,494.1 96,215.2 3,632 Sacramento 14,515.8 1,847.3 16,363.1 490 Central office 111,705.9 111,705.9 Publicschool grant 26,845.0 26,845.0 Total 617,731.0 314,479.2 932,210.2 1 From viiorking papers of "BIA Management Study," American Indian Policy Review Commission. Exhibit II illustrates the state of the grossly inequitable distribution of appropriations far beyond w/hat should be per- mitted by administrative discretion. The BIA should be forced to utilize a system which distributes funds equally by pro- gram from a clearly defined formula. Variables to this should be clearly justified and subject to tribal appeal. The study makes 23 recommendations in these management cate- gories: Budget; personnel; and management information. A section on organization structure and implementation is included. The study is confined to management principles Avhich erect barriers and influ- ence the quality of response to Indian needs. Some Internal Management Problems A number of problems which significantly dilute the overall effec- tiveness of the Bureau of Indian Affairs have been identified. For each problem, a solution has been proposed and the benefits which can be expected outlined. The recommendations of previous studies failed as effective management tools for the same reason : None of them had a specific mechanism for followup or "forced" implementation. In most instances, there was virtually no follow-throLigh of the solutions suggested. Something more than problem identification and proposed resolutions is necessary. More serious weaknesses observed were : 1. There is a notable absence of managerial and organizational capacity throughout the BIA. 2. Decisions are made on a day-to-day basis with little long- range planning. 3. Communications among the organizational levels are poor, as are agency-tribe relationships. 4. Evidence of critical analysis and determination of appro- priate performance standards for key positions are almost non- existent. 5. Employee attitude and morale are poor. 6. The budget system (Band Analysis) is inadequate. Organization BIA internal communications are poor and the absence of two- way communications for transmittal of vital data seriously impede the efi'ectiveness of the Bureau. Information filters down from the central office to area directors and agency superintendents, but not discussed — it is imposed upon tribal governments. During the course of this study, a number of organizational prob- lems were observed. While many are referenced in other report sec- tions, there is a need to modify the Bureau's overall organizational concept. Directives are often superficial and inappropriate. Almost continual internal reorganization and changing interpretations create a rumor- intensive environment where many employees spend excessive time generating or reacting to rumors. The effect on inorale is highly detri- mental and reflected by poor employee motivation and performance. Due to the program-oriented structure of the BIA, broad areas of control are allowed to exist — particularly at the local level. This re- sults in the inability of agencies to receive sufficient specialized pro- gram guidance. At present, each level is self-contained with responsibility for both program and administrative activities. Excessive controls at the area level make it impossible for tribes to exercise any degree of self-determination. The present structure allows for the existence of separate and con- flicting areas of function. The result is poorly managed project tech- niques planned in inadequate time periods. Evidence of critical analysis and determination of appropriate per- formance standards for key positions is almost nonexistent and achievements in most areas are not measured against appropriate yard- sticks. Clerical procedure wastes time, hampers program development and promotes bitterness among tribal officials. Directories and orga- nization charts were often out of date. Formalized communications do not exist between the policy planning staff and areas, agencies, and tribes. A definitive organization structure and decisionmaking process does not exist. Although the present organization contains stated budget functions, in some instances, the budget formulation and control func- tions at the area level are organizationally separated. This type of structure limits direct communication and fosters misunderstanding. 289 Eesponsibility for some programs is unclear because activities are split. Personal contacts among Bureau program management personnel are inadequate and infrequent. The area offices operate as separate entities which limit communications, particularly face to face, either vertically or horizontally. This has led to isolation which makes gen- eral policy implementation and organization unity difficult to achieve. The Bureau's program is not sufficiently consistent and coordinated. Objectives are developed and met as individual projects. Therefore, results are not responsive to the objectives. There is a notable absence of mangerial and organizational capacity throughout BIA. Decisions are made on a day-to-day basis with little long-range planning. Communication among the organizational levels is poor as are agency-tribe relationships. Budget Project planning, as a management tool within BIA, does not en- sure the timely completion of activities. Work plans are not considered important and are not updated when schedules are missed. Timing is confused because of inadequate feedback. Project planning is not con- sidered a high priority at the agency level because experience has in- dicated that generating plans for other than major projects is a waste of time. The plan is either not included in the budget, reworked later, or not adhered to because the available time and effort was directed to some unplanned requirement. New programs are not developed to meet the needs and desires of the tribal governments. Obsolete programs are continued; duplication of effort is required to "guard the integrity of programs for account- ability ;" tribal development plans are not used as a basis for Bureau planning and budgeting. Limited communication between the agency and the tribe causes more than half of the budget to be determined without local needs analysis. Because budget-planning information flows under the as- sumption that each level understand it, the resulting action at lower levels are different than intended. The present budget system only measures the funds spent against the amount budgeted, without determining results. Thus, the effective- ness of managers, organizations, and programs is not measured. Tribal willingness to learn and understand the budget system exists, but effective leadership in the BIA is deficient. There is no guarantee that either agencies or tribes have appro- priate administrative knowledge concerning area office funds. This probably accounts for much of the antagonism between tribal govern- ments and area offices. BIA planning does not deal with the future beyond an 18-month time span. This system prevents effective decisions regarding future goals. Dollar availability of target planning allowances set by 0MB does not adequately cover the financial requirements of individual tribes. The purpose of self-determination is "To provide maximum Indian participation in the government and education of Indian people, to 270 provide for the full participation is a logical and laudable objective but is not fully supported to improve relations between the Indian community and the Government." However, there is a larger issue in regard to client participation which should be noted. Less than 30 percent of the Bureau's budget is subject to any form of Indian participation. Hence, the extent of present involvement cannot be interpreted as Indian determination of Federal spending priorities. Under the present system, a tribe can make tradeoffs within the BIA budget whicli accurately reflect rela- tive priorities and yet receive a total package of goods and services which do not meet those priorities due to insufficient influence on decisions affecting them. The band analysis concept as used by BIA is indicative of an effort to obtain tribal viewpoints. However, many Indians today are dissatisfied with it. Some current issues and problems are : The budget is set by 0MB prior to tribal consultation and decision. In developing some tribal programs, BIA planning activities are aligned to a budget process, Avhich furnishes projections for periods of approximately 18 months. However, extensions of pro- gram plans beyond the upcoming fiscal year are not included in the formal budget system. Tribal leaders are uninformed regarding budget concepts and their ability to make changes. Participants are given sketchy information (typically, a single base year dollar figure for a particular progam without a detailed breakdown). Tribal participants have only a short time to make their deci- sions. A typical time span is 48 hours from initial presentation of information to final decision. Band programs are determined by BIA and change from year to year. Reasons for banding are not explained to tribal leaders. The current BIA budget is submitted to higher review levels without indicating the banded needs of an agency or tribe. The Bureau's budget is a combination of banded priorities and nonbanded central and area office programs. Justifications relate to programs but do not analyze agency or tribal input. Tribal needs and budget data visibility are stopped at the Bureau level through consolidation by program. For example, in three United States Government reports, the Bureau'sbndget is deficient in agencv oi- h'ibal input. The BIA budget justification contains only descriptive Bureau program costs narra- tives. The Federal budget summarizes programs by functional break- downs. Its appendix details information by program activity and extends the analysis to include a budget presentation by object account classification. Personnel Almost every area of personnel management in the Bureau is in- adequate. Comprehensive studies on BIA staffing levels are not performed, resulting in either over- or under-staffing. In addition, personnel re- ductions do not follow a logical selection process. Observations on man- power utilization at sample BIA offices indicate that output is very 271 low. However, effective manpower utilization does not appear to be of prime importance since defined quality/quantity output standards are nonexistent. Personnel ceilings are set arbitarily by 0MB with no input from area, agency and tribal management. These ceilings are often circumvented by an excessive use of temporary employees. The present emphasis on training is general in nature, narrow in scope, and unrelated to employee's jobs. As a result, many underde- veloped and underutilized employees operate marginally and mis- handle their assignments. Bureau training activities need improve- ment at all levels, especially for management intern programs for Indians which haA-e been practically nonexistent. Indian preference has a profound effect on BIA personnel man- agement. Congress intended that "the Indian service shall gradually become a service predominantly in the hands of educated, competent Indians.'' However, no one in 1934 realized just how gradual tliis process would be. Even now, 42 years later, many positions are vir- tually impossible to fill. Many non-Indiaus either leave BIA or are minimally motivated to perform because of Indian competition. The failure of Bureau personnel to understand Indian preference has led to inconsistent administration of the policy at all levels. The result is a significant reduction in BIA effectiveness. Internal mobility and flexibility also suffer because, in many instances, non-Indians cannot be transferred to new positions. Employment classification is in a chaotic state. As a result, some classification authority has been reclaimed by the BIA central office. However, consistent job classification or reclassification policies are still nonexistent. Job categories are being altered to fit the applicant — being downgraded when a competent candidate is unavailable and raised when an administrator wants to provide a reward without jus- tification. Administrative pressure challenges the integrity of tlie classification process. Because of a shortage of qualified classifiers and an exodus of those available to other Government agencies, clas- sification actions are a long, time-consuming process. BIA labor relations practices are also poor, both from the human- istic and managerial point of view. Management is often ''auto- cractic*' or "dictatorial." Employee inj^ut is not solicited and, if vol- untered, remains unanswered. BIA managers and supervisors admit ignorance of employee relations practices. High personnel turnover often results, particularly in critical areas. This type of management leads to unionization, third-party intervention and inflexibilit}' in personnel assignments. Management Information The current data processing function is incapable of providing the spectrum of data and reports needed by managers on a timely basis. In addition, man}^ reports are inaccurate, making it necessary for agency personnel to maintain their own accounts. xVlthough 35 dif- ferent standards and/or procedures manuals are available or near completion, they are primarily for handling hardAvare and software at the division's data center. Consequently, a complete catalog of data and special reports material is unavailable. Personnel skills as well as various application systems are becoming obsolete. 272 A study on the replacement of obsolete hardware and addition of improved service and data handling capabilities is in progress. In addition, an interim equipment improvement proposal is being pursued. This study on the replacement of obsolete hardware is now con- sidered complete by the Division responsible for its implementation. However, the AIPRC has talked with Bureau central office, area, agency and especially tribal government stafT regarding the proposal and have found the proposal was not developed by a comprehensive needs analysis. They feel the proposed project would not meet their needs, eliminate obsolete or duplicate reports, but would in fact add to their problems. Communication of information is so slow that programs and em- ployee morale sulfer. Agency and tribal managers lack sufficient de- cision-related data and their requests for this pertinent information go unanswered. Information flow is slowed by various coordinators and liaison personnel who constitute bottlenecks to desired communi- cation patterns especially at the area director level and data center. No capacity exists for meeting special field requests or providing direct access from remote locations. Since manuals documenting ca- pabilities and reports are inadequate, both system input and output aro extremely poor. Reports are not organized to provide information on an exception basis. Therefore, users must dig through piles of paper to locate problems. Because report accuracy is poor, they are not used. Agency and tribal managers maintain ""cuff accounts'' for reconciling and controlling activities. Inaccuracies are caused by insufficient knowl- edge on data input and submission. Due to inadequate and unreliable measurement information, man- agers can do little to control people or programs. Data are used pri- marily for employee records and to provide reports requested by area or central offices. The information available simply documents past history for compilation into composite status reports. This type of information cannot be used effectively to evaluate, manage and motivate people, make decisions or measure program quality. Even simple comparisons are not available for management control purposes. Insufficient standards and measurements are prime reasons for line manager, program and employee control problems. There are no available data to provide the basis for an alternate course of action because of changing circumstances in the future. Thus, agency offices must exist on a day-to-day basis reacting to problems and situations as they arise. As a result, ongoing programs get farther behind and are inadequately implemented. Both equipment and materials inventory systems are ineffective and wasteful. They are not completely automated because the division lacks the necessary capacity. Also, standards for controlling inven- tories and servicing equipment do not exist. Equipment listings are incomplete, causing supplies to disappear without sufficient documen- tation. Only a fcAv of the 17 division reports sent to the agencies and tribes are useful due to insufficient understanding or inapplicability of the information in the reports. Although some manuals are avail- able, they do not explain report interpretations effectively. 273 Area, agency, and tribal offices are starting to acquire data process- ing equipment because of inadequate service from the division. Recent data processing studies indicate the major problems are lack of needs analysis at agency and tribal levels, insufficient hardware capability and a shortage of qualified people. Recommendations Based on the BIA Management Study Estimated benefits from implementation of the following recom- mendations could amount to $123,072,000 annually and a one-time savings of $20,830,000. These benefits would accrue to the Indian tribes for programs and development in Indian country. Streamlining man- agement organization and efficiency of the Bureau of Indian Affairs is a logical first step toward better administration of Indian polic3\ The second step is discussed in section IV of this chapter. The BIA management recommendations Vvliich follow here, should apply to the new Indian agency mentioned there as well. A digest of recommendations follows. DIGEST OF RECOIVIMENDATIONSi Action Estimated Recommendations required Financial impact amount BUDGET PROCESS 1. Establish a formal planning system v/ithin BIA and inte- Executive grate it into the nresent budget process. 2. Reorganize budgeting, planning and intergovernmental do - relations into 1 integrated orRanization. 3. Stimulate Indian participation in the budget process do 4. Include all nonbanded area programs e):cept t;ust funds do 1-timecost $50,000 in the agency budget formation process by fiscal 1979. 5. Make the budget function responsible for variance do analyses and per'armance reviews. 6. Emphasize Indian participation and band analysis in the do BIA budget review to the department, OWIB, President and Congress. 7. Establish annual project planning at area and agency do Annual saving 250,000 levels for all continuing programs and monitor perform- ance quarterly on a personal basis, altering the plan to reflect status changes. PERSONNEL MANAGEMENT 8. Strengthen Indian preference to improve BIA effective- do ness while continuing to hire, train and upgrade Indians for bureau employment. 9. Develop a human resources planning system using indus- do Annual saving.. 75, 000, 000 trial engineering techniques to establish appropriate 1-timecost 430,000 staffing levels and position requirements. 10. Develop an aggressive recruiting program to secure do Annual cost 150,000 qualified or trainable Indians. 1-timecost... 50,000 11. Reorganize the employment classification system to do improve credibility. 12. Improve BIA employee relations practices ...do 1-time cost 100,000 13. Develop training programs to meet specific BIA require- do Annual cost 80,000 ments. 1-timecost... 20,0000 14. Continue regular civil service evaluations and upgrade do Annual cost 42,000 personnel-management quality through Department of the Interior project manager appointments. MANAGEMENT INFORMATION 15. Establish and install performance measurement standards do Annual saving 15, 000. 000 16. Initiate a program to improve and facilitate general com- do _ munications between central office and field super- visors. 17. Develop a concise statement on critical issues do 18. Improve the management by objectives programs.^ do -- 19. Expedite the automatic data processing modernization do Annual cost avoidance... 10,000,000 study to insure completion by Jan. 1, 1977.2 Seo footnotes at end of table. 274 DIGEST OF RECOMMENDATIONS'— Continued Recommendations Action required Financial impact Estimated amount 20. Complete apolication analysis section of the moderniza- do tion study by Oct. 1, 1976.-' 21. Add remote-access and interactive capabilities to reduce do - processing time and increase computer program devel- opment ettlciency. 22. Develop an mventory system for a comprehensive man- do Annual saving agement system. 23. Develop standardized material and supply inventory do do 5,000,000 systems. 1-time saving 20,000,000 6, eOO, 000 Total 132,952,000 ' Bureau of Indian Affairs Management Study, American Indian Policy Review Commission, pp. 45-46. 2 Commission recommends a reevaluation of these 2 proposals by the Secretary. Senator James Abourezk, Chairman of the Indian Affairs Com- mittee of the Senate, has stated that the savings would be transferred to Indian tribal programs at the local level. A more efficient BIA administration could provide the badly needed program dollars for Indian economic recovery. Tribes need funds for land acquisition, con- solidation, natural resource development, and a new source of flexible budget coupled with increased sophistication in tribal planning and management capacities necessary to establish a viable economic climate. Indian administration can be vastly improved by a commitment by Congress and the executive branch to a process of improving the delivery of money and access to technical assistance. Badly needed budgetary flexibility can be obtained by eliminating the waste tliat has built up over the years. 275 PRESIDENTIAL LEVEL ma;iagehe»t improvement i implementation review office DEPUTY ASSISTANT SECRETARY OPERATIONS OFFICE OF THE PRESIDENT DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS DEPUTY ASSISTANT SECRETARY POLICY DEVELOPMENT AND ANALYSIS SECRETARIAL LEVEL SECRETARY OF THE"! INTERIOR I BUREAU LEVEL [ASSISTANT SECRETARY FOR INDIAN AFFAIRS DEPUTY ASSISTANT SECRETARY ADMINISTRATION GES'EPJVL COU-ISEL • Rights Protection » TRUST PROTECVION • Legal Advice DEPUTY ASSISTANT Secretary OPERATIOM? • Hum an Resourc es • Nat ural Resoi. rces • Tri bal Goverr nort Dev elopment -Area Service Centers ASSISTANT SECRETARY FOR INDIAN AFFAIRS LOCAL SERVICE CENTERS • Tribal Government and /or • Local Agency Superintendent DEPUTY ASSISTA!JT SECRETARY POLICY DEVELOPMENT AND ANALYSIS • Policy DevelopmenttAnalvsis • Intergovernmenta l Relations ' • Audit and Review • ConjressionaltLeaislative • Public Af fairsslnformation DEPUTY ASSISTANT Secretary ADMINISTRATION • Planning and Budgeting • Financial Management • Personnel • Contracts/Grants • Support Services PROPOSED ORGANIZATION CHART FOR BUREAU OF INDIA!! AFFAIRS 276 UNSOLVED PROBLEMS IN THE BUREAU OF INDIAN AFFAIRS Indian Preference in Employment : a Preference for Self-government The notion of exempting certain Federal agencies and offices from civil service requirements and staffing them pursuant to a tailored personnel system is hardly unique in the U.S. Government. Frequently, Congress has recognized that the specialized needs and functions of an agency render it unsuitable for application of civil service hiring and promotion requirements. This has resulted in 42 Federal agencies or offices being fully or partially exempted from the employment restrictions of the Civil Service Commission. The Department of De- fense alone has 301,000 noncivil service positions, and the Veterans Administration has over 34,000. Some Federal agencies have estab- lished entirely independent personnel systems to meet the unique needs of their mission or staffing requirements. This includes agencies such as the Energy Research and Development Administration, the Ten- nessee Valley Authority, the U.S. Postal Service, and others. The reason most often given for authorizing these independent per- sonnel systems is the flexibility they allow in recruiting, selecting, hiring, and promoting individuals "with specialized skills uniquely valuable to the agency.^^ The reasons for exempting these agencies fipply equally as well to the present Bureau of Indian Affairs and to tlie proposed new Depart- ment of Indian Affairs. Furthermore, the Federal trust responsibility to American Indians and more than 140 years of Federal statutory law mandate a separate service in the Indian Service.** But despite these factors, a separate Indian Career Service has never truly been considered by the executive branch. There is no firm man- agement policy on Indian preference ; *- management support for the concept is inconsistent; and when Indian preference is followed in hiring practices, it is usually confined to the lower-level, nonmanage- ment positions. Thus, the percentage of Indian employees has remained virtually the same (57 percent) since 1951, and 65 percent of the Indian employees are GS-7 or below.*^ At the present time, there are at least seven Federal statutes dating back as far as 1834 which provide for Federal employment preference for Indians within the Indian Service.** The purpose of these statutes, as variously expressed in the legislative histories, was "to give Indians a greater participation in their own self-government; to further the government's trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that af- fect Indian tribal life." *^ The Indian employment preference statute principally relied upon today is section 12 of the Indian Reorganization xVct of 1934 (IRA).*® which was designed to correct the inadequacies of several earlier pref- *i jS'ee Indian preference exhibits, final report of Task Force Xine. volume II. *^ For a tliorough explanation of all agencies with respect to the civil service system, see: U.S. Senate, Committee on Post Office and Civil Service. Statutory Exceptions to the Competitive Service, 93d Cong., 1st sess. 1973. « Ibid. «2i5 U.S.C. sec. 45 (1070) : 25 U.S.C. sec. 46 (1970) : 2.5 U.S.C. sec. 348 (1970) : 25 U.S.C, sec. 44 (1970) ; 25 U.S.C, sec 274 (1970) ; 25 U.S.C, sec. 47 (1970) ; 25 U.S.C, sec. 472 (1970). « Morton v. Mancari, 417 U.S. 515, 541, 542, (1974) (footnotes omitted). <« 25 U.S.C. sec. 461 et seq. (1970). 277 erence laws. The Congress realized that the Civil Service laws and a lack of technical training were the main stumbling blocks to getting Indians into their own Service. Under the pre-IRA laws, Indians were forced to compete with non-Indians under Civil Service standards while at the same time the Indians were denied or did not have access to education and training and were accorded no merit for the life knowledge and skill obtained outside the standards of formal education. Section 12 of the lEA sought to correct this situation by providing : The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil service laics, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the prefer- ence to appointment to vacancies in any such positions. [Emphasis added.] " The IRA thus clearly intended to make the civil service laws inap- plicable in the appointment of Indians to the Indian Service and to provide for creation of a special persomiel system designed to insure that Indians themselves administer government Indian affairs activi- ties. To assist in implementing this plan, section 11 of the IRA also provided that adequate training and recruitment of Indians be pro- vided.*^ As Representative Howard, the sponsor of the IRA in the House, stated to the Congress in 1934 : Section 13 directs the Secretary of the Interior to establish the neces.sary standards of health, age, character, experience, knowledge and ability for Indian eligibles and to appoint them without regard to civil service laws ; and it gives to such Indians a preference right to any future vacancy. This provision in no wise signifies a disregard of the true merit system but it adapts the merit .system to Indian temperament, training and capacity. Provision for vocational training and higher education will permit the building of an entirely competent Indian personnel.** Senator "Wheeler, chairman of the Senate Committee on Indian Affairs and sponsor of the IRA in the Senate, stated in 1934 wh}^ such a unique career system for Indians in the Indian Service is justifiable : It (the Indian Service) is an entirely different service from anything else in the United States, because these Indians own this property. It belongs to them. What the policy of this government is and what it should be is to teach these Indians to manage their own property and the civil service has worked very poorly so far as the Indian Service is concerned * * *.^' In a recent case, the U.S. Supreme Court lent further justification for Indian employment preference by stating that : The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be "an inhabitant of that State for which he shall be chose," Art. I, Sec. 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent groups in staffing its proj- ects, all of which either directly or indirectly affect the lives of tribal Indians. The preference, as applied, is granted to Indians not as a discrete racial group, but, rather as members of quasisovereign tribal entities whose lives and activi- ties are governed by the BIA in a unique fashion. Since there is no other group of people favored in this manner, the legal status of the BIA is truly sui generis." ^'■ i'2o U.S.C. sec. 472 (1970). « 25 U.S.C. sec. 471 (1970). « 78 Cong. Rec. 11731 (1934). «>78 Cong. Rec. 11123-11125 (1934). ^^ Morton v. Mancari, 417 U.S. 535, 545 (1974). 278 Thus, the Congress in 1934 and the Supreme Court in 1974 both viewed the Indian Service as unique and Indian employment prefer- ence in the Service as a justified and logical step to further Federal policy in Indian affairs. In the course of a hundred years there have been at least seven statutory attempts to provide for Indian preference in employment within the Indian Service (BIA and IHS).^^ The present condition of personnel administration within the Bureau of Indian Affairs and Indian Health Service is an indication that Indians can expect no bet- ter treatment in the near future without the intervention of Congress or top direction from the executive branch. The present conditions do not generally result in a sufficient supply of good candidates for jobs, for Indians or non-Indians. A lack of procedural and administrative leadership has left all employees to struggle with the complex issues without the benefit of Bure'auwide policy direction and laws that were meant to assist them. A MANAGEMENT AND PUBLIC AWARENESS PROBLEM OF THE BUREAU Hidden Regulations The Bureau of Indian Affairs (BIA) regulates and controls its relations with the service population, primary and subsidiary offices (central, area, etc.), other agencies, and individuals and entities in both the public and private sectors largely through the BIA manual. Thus, the quality, accuracy, and efficient maintenance of the manual system becomes essential if the Bureau is to fulfill its responsibilities. This manual system consists of some 42 titles and 52 supplements. Printed in looseleaf binder form, the manuals fill a 10-foot long book- shelf. Of these 42 titles, approximately 17 relate to internal agency ad- ministrative matters. The remaining 25 involve subject areas which regulate and affect the rights of the Indian tribes and Indian people. The BIA manual as it presently exists is a confusing, outdated, antiquated, often contradictory, and generally inefficient compilation of policy and procedure ranging from the old (80 BIAM) to the absolutely unfathomable (82 BIAM). Portions of the manual sys- tem ai'e in violation of the publication requirements of the Administra- tive Procedure Act (APA), contrary to congressional intent, relevant statutes, judicial decisions, or agency regulations, and in such a state of disorganizatioM as to be of limited utility to agency personnel. There are numerous regulatory provisions contained in the manual which affect the substantive rights of Indians. In many cases, these agency regulations have not been published for comment in the Fed- eral Register and subsequently codified in the Code of Federal Regu- lations (CFR) as required by the Administrative Procedures Act (APA). The most flagrant example of this is 82 lAM, containing some 200-300 pages of eligibility criteria and guidelines regarding the Bureau's Employment Assistance Program. Very little, if any, of this title has been published. Abrogation of such procedures results in the denial of benefits through illegal eligibility requirements and other criteria being improperly imposed. B2BIA Management Study, final report of Task Force Three (GAG. 1976), p. 103. 279 Mechanicall}' confusing, the manual contains both Indian Affairs Manual and Bureau of Indian Affairs Manual volumes. The older volume was to be totally replaced by new material over 2 years. Very little replacement has in fact been accomplished. The proliferation of old titles still in use further exemplifies the outdated condition of the manual system. Xumerous references contain vague statements advising that an appropriate part will be issued "later." Some of these initial references are themselves over 6 years old. As the primary tool for all BIA personnel to ascertain and apply Bureau policy regarding such vital areas as delivery of services and protection of land, timber, water, and mineral resources, it is im- perative that the manual be made more responsive to the needs of its users while at the same time effectivel}' accomplishing its purj^oses. The manual system must be comprehensive, comprehensible, and legally correct in order for it to be effectively utilized by agency per- sonnel. Until this is accomplished, irreparable harm is being done to Indian people. In conclusion, a careful revision of the present service delivery sys- tem of the Bureau of Indian Affairs nuist be undertaken. Such a revision must encompass not only the perspective of Bureau em- ployees as to the inadequacies in the delivery of services, but most importantly, tribes must have the opportunity to express their A'iews as to how the service delivery system can be revised to better meet tribal needs. This revision plan is a necessary prerequisite to the establishment of service delivery systems in a new independent Indian agency. Such regulations should then be published in the Federal Register to allow for comment bv interested persons. PROBLEMS WITH THE BUREAU OF IXDIAX AFFAIRS BUDGET One of the most important elements in any budget formulation process is the relation of a budget to the total physical and financial needs of the population to be served. Particularly, the Bureau of Indian Affairs budget should be responsive to Indian planning and program priorities at the local level. However, the organizational structure of the Bureau separates the functions of the Financial Man- agement staff responsible for budget formulation from the functions of the Policy Planning staff responsible for planning. This separa- tion of functions also exists in the area and agency offices, and thus the coordination between budget and planning processes critical to responding to tribal needs is lacking. As the BIA Management Study points out. Formalized communications do not exist between the Policy Planning iStaff and areas, agencies and tribes. The relationship between the central office and area PPE budget function is one of downward procedural information and up- ward consolidation. The same basic budgeting relationship exists between the area and the agency. However, communications between the agency and the tribe occur during tlie budget planning phase but not during the budget moni- toring phase." In an attempt to align the budget with tribally established priorities, the band analysis system of budget formulation was created in the 33 U.S. House of Representatives, 1977 appropriations hearings — Department of the Interior, part 6, p. 708. 280 Bureau. The process supposedly allows tribes to indicate spending pref- erences at varying levels of total funding derived from percentages of the previous year's funding. However, upon closer scrutiny of banded and nonbanded program outlays, it can be seen that more than half of the budget is not determined by the band analysis. Since there are sev- eral tribes under one agency, tribal conflicts are created. Tribes have no input as to which Bureau programs are banded or nonbanded, thus Bureau attempts to respond to tribally established funding priorities are meaningless. Indeed, the BIA budget formulation process is structured in such a way as to he more responsive to the constraints of the budget processes and appropria- tions procedures of the Department in which it is located, and QMB, rather than the tribal needs it is legally mandated to serve." A proposed budget formulation process for the Bureau of Indian Affairs as part of a larger proposed Federal-Indian budget has been a major endeavor of this Commission. The proposed budget process provides for a total assessment of tribal needs and the development of long range tribal plans to meet the needs identified. Upon com- pletion of a needs assessment and development of a tribal plan, the tribe would then enter into negotiations with the Bureau of Indian Aifairs to determine those Bureau programs which would best re- spond to tribally specified needs and long-range plans. Following this, the tribe would then proceed to identify those Federal domestic as- sistance programs which target moneys and services to those areas of need not addressed by available Bureau programs. Finally, a total tribal budget would be submitted to Congress as a part of the total Federal-Indian budget. Costs of Bureau of administration would be entered separately, so that at all times, all parties to the budget process would be able to identify the tribal budget as distinct from the Bureau budsret. Bureau requests for appropriations would then be based on the tribal needs.^^ The 1934 Indian Reorganization Act required that the Secretary of the Interior advise the tribes of the amount of money requested for their benefit. This provision has never been properly carriecl out. Also, the 1934 Act contemplated that should the tribal council disagree with the Secretarial submissions, the differences should be made known to the Congress. In the 1976 oversight hearings of the House Appropria- tions Subcommittee, Chairman Yates advised ^'^ the Bureau of Indian Affairs that "Our Committee considered itself to be as important as 0MB and the Department of the Interior in being advised of the amount of money necessary to carry on BIA's program adequately." Out of this hearing, the cormnittee authorized an investigation, which was highly critical of the Bureau of Indian Affairs administration of its educational facilities. This report is dated December 1976 and states : In the opinion of the Investigative Staff, the Indian Self-determination Edu- cation Assistance Act (Public Law 93-638) is one of the most important legis- lative acts dealing with the Indian people. It is however, complex and compre- hensive, and the achievement of the goals envisioned by Congress may require a " Ibid. " See ch. 8, for an expanded discussion. B6 See final report of Task Force Six (AIPRC, GPO, 1976). .281 greater understanding on the part of the BIA and Indian people and a great deal of patience on the part of tribes in obtaining the full benefits intended. Self-determination means that tribes are entitled to establish their own pri- orities and goals without Federal domination. Under this Act, the Federal Gov- ernment is committed to accept and support tribal government judgments based on the needs and goals of their people. The Act seeks to establish a new direction for Federal Indian people to direct their ovn^u de.^tinies. while at the same time preserving their special rights and trustee status with the Federal Government. The new (President Carter's) administrntion beffinninir in 1977 has ex]oressed a preference for a zero-based bndafet, and this Commission recommends the same to be^in at the tribal level. Most tribes have loncf-ranofe plans that this predetermined nnnnal needs for funding:. Such a system could be initiated rather quickly to meet le^al requir- ments and the desires of Conaress to learn the truth of the actual needs of Indian tribes and people. COXTIXUIXG PROBLEMS AT "tiIE OTHEr" ISIAJOR INDIAIST SERVICE Tlie Indian Health Service The responsibility for Indian health was transferred from the Bu- reau of Indian Affairs to the Department of Health, Education, and Welfare in IDoo. At that time, the Indian Health Service was created under Public Health Service and the Health Services Administration of that Department, and was designed to provide health care services to Indian people in areas where there were no existino; health care facilities. The main advantage seen in such a transfer was the avail- ability of doctors servino; in the Public Health Service in lieu of the 2 year military obligation resulting from draft deferments for medi- cal training. Almost immediate! v, health care services to Indian peo- ple improved as tlie Indian Health Ser^ace budget was increased and medical personnel were assigned to Indian Health Service installa- tions. Still, there was an overwhelming backlog of Indian people need- ing health care ser^-ices, and environmental conditions on many reservations continued disease-breeding at astonishing rates. Today, even though significant improvements in Indian health have been wit- nessed. Indian Health Service officials estimate that if no new cases were undertaken by IHS, it would take approximately 50 years to treat the backlog of Indian people needing medical treatment. Indian Health Service seeks to respond to this need by providing funds for contract health care from other health care professionals and hospital facilities. Gradually, the role of Indian Health Service has evolved to become that of a health care provider of last resort. Funding and staffing of health care facilities are severely below national standards and recommended doctor-patient ratios. Tlius, Indian Health Sen'ice must ask that Indian people exhaust all other possible sources of health care services before turning to Indian Health Service for treat- ment. As a general rule, however, other health care providers are not aware of the evolving role of IHS, and as a result, refuse treatment to Indian people on the grounds that provision of health care services to Indian people is the sole responsibility of the Indian Health Serv- ice. Thus, the delivery of health care services to Indian people is at best fragmented, and lacks a formalized system for assuring that the health needs of Indian people will be met. 92-183—77 19 282 a. Organizational Structure The delivery sj-stem of health care services in the Indian Health Service consists of a central office in Eockville, INId., 4 program offices, 8 area offices, and 88 service units. The central office is re- sponsible for setting IHS policy, the program offices conduct research and development, the area offices provide technical assistance and pro- gram evaluation, while the service units are responsible for providing direct medical care and locating other health providers for contract health care. The delivery system is plagued by problems of poor man- aoement, lack of leadership, poor communication between area offices and service units, and a lack of policy guidance." The quality and variety of health care that a service unit can render is severely restricted by the service unit budget, which has always been significantly inadequate to respond to the health care needs of Indian people it is supposed to serve. Management of the service unit is the responsibility of a physician who spends his first year in IHS with a full clinical caseload, and his second year managing the service unit. Many physicians express their dissatisfaction with this arrangement — many feel that they do not have sufficient background in administration to enable them to be effective service unit man- agers.^^ Second, depending upon the backlog of cases, some phy- sicians must maintain their full clinical caseload as well as assuming the responsibility for service unit management. Often, this situation precludes evaluation of total health needs and the establishment of treatment priorities. Inadequate staffing and insufficient funding re- quire that emergency treatment receive first priority, and in most cases, that preventative treatment be abandoned. A recent development in the organizational structure of the Indian Health Service has been a change in the role of the area offices which now serve as technical assistance facilities for the service unit. Resist- ance to this reorganization is evidenced by the lack of cooperation between service units, and area offices. Communication and assistance generally is a function of personal relationships rather than IHS policy facilitating the flow of information. Service unit personnel view the area offices as just another layer of bureaucracy which ob- structs communication and accessibility to central office decision- making.^^ The service delivery system of Indian Health Service needs major improvement in management procedures, communication among the various elements of the service delivery system, and overall policy guidance coupled with adequate funding in order to realize the goal of bringing the health status of Indian people up to parity with that of the general population. b. Indian Health Service Budget The most severe problem faced by Indians in seeking to obtain medi- cal treatment is a result of the budget formulation process of Indian ^" The accounting system of the Indian Health Service is structured in such a way as to preclude any trackins of the actual percentage of a dollar reaching the service unit level, or more importantly, precludes the identification of that portion of each dollar that actually goes to trentnient. "8 Task Force Six, Health Task Force final report to American Indian Policy Review Commission, July, 1976. s» Ibid. 283 Health Service. IHS receives a fixed allocation each year, a percentage of the departmentwide budget appropriated to the Department of Health, Education, and "Welfare. This allocation bears little relation to the needs witnessed at the service unit level or those identified by Indian people. Yearlj' allocations are whittled away by central office administrative costs and area office administrative costs, with the re- sult that only a small portion of the dollar allocated gets down to the service unit level.*^" Even then, a service unit may receive a portion of the funds allocated to it in the form of X-ray machines or other equip- ment which it may not need, while critical needs for increased staffing go unmet. Jkloreover, the funds remaining after the central and area offices have extracted their administrative costs, drastically reduce the quality and variety of health care a service unit can provide. Often, because of financial constraints a service unit is unable to provide any- thing other than emergency treatment. Health maintenance and disease prevention are nonexistent in service units with such budget con- straints. The service unit must continually redefine the population eligible for IHS services given scarce resources that preclude the provision of health care services to those with the greatest need. The result is that Indian people are denied service by their own health serv- ice, only to be sent "down the road" to be refused services from dis- criminatory health care providers. In order to adequately respond to the health care needs of Indian people, the budget formulation process of the Indian Health Ser\dce must be revised in accordance with the principles outlined in the pro- posed Federal-Indian budget. ^^ Such a process would entail Indian identification of the total health needs of each Indian community (res- ervation and urban) and development of a long-range plan to meet those needs. The result of the total liealth needs analysis and long- range plan would then be submitted to the service unit, whereupon service unit personnel would work witli tribal representatives to create a service unit budget based on tribally identified health needs. The budget would specif^" program costs, treatment costs, equipment costs, central and area office operating expenses separately, so that at all times, all parties to the budget formulation process could identify Indian Health needs assessment data as distinct from IHS admin- istrative costs. The Indian Health Service budget requests would then be based on the health needs of the Indian community which it is mandated to serve. The statistics on lack of health care gathered to justify passage of Indian Health Care Improvement Act (Public Law 94-4-37) indicate the ratio of professional health care employees to Indian population is much lower than the U.S. as a whole. ^' The low percentage of facili- ties qualifying for accreditation by normal health standards and the particular conditions of comparison on any element actually reflects admission of inadequate conditions being clearly expressed to Con- gress. Public Law 94-437 requires funds appropriate to accelerate health care to Indians must be over and above that appropriated for w The acconntine system of IHS Is strncturecl In such a way as to preclude nny trackinj? of the actual percentage of a dollar reachlnsr the service unit lerel, or more importantly, precludes the Identification of that portion of each dollar that goes for treatment. '^ Spc actii^n on a separate department In this chapter. «2 Indian Health Care Improvement Act — House of Representatives Report 94-1026, part 1, Apr. 9, 1976. 284 each year's "normal operational requirements budget." It is therefore questionable that any funds could be used unless the regular appropria- tions bring the low percentage ratios up to par on a national level. If IHS does not bring the ratio of professional employees up to U.S. standards, the intent of 437 will not be achieved. Indirect information by the evidence indicates that funds appro- priated to IHS for the Indian Self-Determination and Education Assistance Act (Public Law 93-638 purposes transferring administra- tive responsibility to tribes) is actually being used for employee pay raises. This is supported by the Indian Health Service indications that they would be able to absorb the pay raises in the current appropria- tion amounts. This raises the question of whether the Executive leader- ship is even interested in correcting the deficiencies for which the health legislation was passed. A management study of Indian Health Service is necessary and the indications are that Indian Health Service should be withdrawn from the Department of Health, Education, and Welfare and join other Indian activities in a new department or agency for major Indian affairs activities as a part of the trust responsibility. A Progrx\m for the Future of Indiax Administeatiox COXSOLUDATION OF INDIAN PROGRAMS IX OXE DEPARTMENT Since the founding of this Nation, there have been proposals ad- vanced for the development of a separate department or independent agency. Indeed, original plans were advanced in colonial times for the establishment of not only a separate department, but even a 14th State. Since the transfer of the Bureau of Indian Affairs from the War Department to the Department of the Interior, the question has been raised: "Where should the Bureau of Indian Affairs be located?" Another question often asked is: "How should it be organized?" Re- sponses have ranged from the 19th century urging to return it to the direction of the War Department, the recommendation that "* * * Indian affairs be committed to an independent bureau or de- jDartment" ®' and the 20th century recommendations that it should be "abolished" or later transferred to the Department of the Interior. As changes in the structure and location of the Bureau of Indian Affairs were considered during the early part of this century, Indian tribes repeatedly asserted their rights to consultation prior to any administrative or legislative modifications. Apart from the Board of Indian Commissioners, the first major influence that tribal governments had on Bureau structure came dur- ing congressional hearings on the administration-proposed Indian Reorganization Act.®* Indian efforts to influence structure continued sporadically through the remainder of the 1940's and into the next decade. But, not until 1961 through the American Indian Chicago 8= Report of Commissioner of Indian Affairs, 1S6S. p. 4S. The Please Commission appointed by Act of July 20, 1867, 15 Stat. 17, made their recommendation to tlie Com- missioner on November 18, 1868, but in a supplementary report (Oct 9 1S'»S) ursred transfer to the War Department. ' " «* Act of July 15, 1870, see. 3, 16 Stat. 355. See: Schmeckebier pp 26-27 285 conference did Indians establish a comprehensive position on the character and structure of Federal Indian administration.^^ The threat of termination had the ironic effect of binding tribes together. Indian resolve was mirrored in the remarkable document produced by that conference : "The Declaration of Indian Purpose." ^'^ The Declaration began : We believe in the inherent right of all people to retain spiritual and cultural values, and that the free exercise of these values is necessary to the normal development of any people.*' Wide ranging proposals and recommendations were offered for a major overhaul of Federal Indian affairs administration and policy. AAHiile the conference urged that area offices be abolished and that local agencies be given "broader exercise of responsibility and author- ity to act" as had their predecessors, the Declaration of Indian Purpose urged that certain principles guide the structuring of the Bureau of Indian affairs. The conference declared : That basic principle involves the desire on the part of Indians to participate in developing their own programs with help and guidance as needed and re- quested, from a local decentralized technical and admiustrative staff, preferably located conveniently to the people it serves. * * * The Indians as responsible individual citizens, as responsible tribal representatives, and as responsible tribal councils, want to participate, want to contribute to their own personal and tribal improvements and want to cooperate with their government on how best to resolve the many problems in a businesslike, eflQcient, and economical manner as rapidly as possible. In the ensuing years and right up to this date Indian tribes and people have repeatedly requested that their special status be recognized and institutionalized in the form of a separate Indian Department or independent agency. The National Congress of American Indians, the National Tribal Chairmen's Association, the Affiliated Tribes of the Northwest Indians and other intertribal groups have all adopted resolutions requesting a separate department or agency. By 1974, the National Congress of American Indians unanimously endorsed a position paper and "Proposal for Readjustment of Indian Affairs" ^^ which recommended "the establishment of independent Federal governmental machinery to replace the Bureau of Indian Afi'airs". Contained in the "American Indian Declaration of Sover- eignty" which is attached to the NCAI proposal in this urging : Establish a single, independent, federal governmental instrumentality with concurrence of the majority of the recognized aboriginal American Indian tribes and nations, in order to implement and guarantee the treaty responsibilities and trust obligations of the United States of America under Article Six of the Con- stitution of said nation.^* The National Tribal Chairmen's Association took a similar position in support of a separate Indian agency in the summer of 1975.'^° Since these formal organizational statements were publicly an- nounced. Indian tribes and other orcfanizations have announced their « Fifty-eight tribes representing 146.194 persons snpportincr the bill -while 13 tribes rejiresentinfr 15.21.''> persons requesting more time for considerfition or opposing it. 6" American Indian Chicago Conference, Declaration of Indian Purpose, June 10-13, 1961 (Appendix D). «■ Ibid., p. 45. '•■'NCAI Convention. San Diego, Calif., Oct. 24. 1974. ""Ibid.. "American Indian Declaration of Sovereignty," part C. '" San Antonio News, September 1975. 286 support for various forms of a new structure of the BIA as a separate agency. Common among these various proposals is the separation of Indian affairs from the Department of the Interior. Similary, support for separation has been conditioned on full participation of Indian nations and tribes in the planning and development of the new agency. In testimony presented to the American Indian Policy Review Commission on behalf of the Creek Nation, the following was recommended : * * * Indian affairs are not solely a judicial nor a legislative duty of the government, nor are they an exclusively Executive duty. On the other hand, Indian affairs are constituted by governmental duties which are simultaneously quasi-executive, quasi-legislative, and quasi-judicial. There is only one form of governmental organization of powers which embodies these three types of power simultaneously : independent commissions and agencies. * * * Therefore, I strongly recommend that Indian affairs be assigned to an in- dependent commissions. Only this assignment of Federal power will alleviate the present confusion of Indian affairs with the Executive Branch.'^ What may have been a negotiated political consideration prior and following the Eevolution has become a desirable administrative and program alternative in the last 17 years. It is also motivated by Indian tribes desiring less Federal administration and a more direct method of receiving appropriations for tribal projects as well as a wish for relief from a compounded and fractionated conflict of interest. Federal funds could be consolidated and provided more directly with a reduced administrative cost assessed by various Federal agencies. Some of the principal reasons for the establishment of a separate department or independent agency are : To reaffirm the separate and unique status by providing a Department which can effectively administer the trust. To improve the delivery ratio of funds to Indian tribes. To coordinate various programs more effectively by delegating that responsibility to one department. To remove conflict of interest partially by consolidating the authorities of the United States into one prime agent for the trustee. To provide a more direct access by Indian tribes. To permit Indian tribes utilizing comprehensive planning to participate in a budget system which encourages tribal participa- tion and priorities. To permit Congress and the executive branch to effectively monitor and evaluate Indian administration and programs. A SEPARATE DEPARTMENT The best answer to many problems in Indian administration appears to be to create a separate Indian department or agency with oversight and jurisdiction and full legislative powers under a standing or select committee on Indian affairs. This (the separate Indian Depart- ment) would be accomplished by removing the Bureau of Indian Affairs from the Department of the Interior and subsequently having Ti Glenn Moore and Robert Trapp. Creek Nation, AIPRC hearing, May 8-9, 1976, Denver, Colo. 287 that agency which would administer the majority of Federal program dollars appropriated for Indians. It should be emphasized that in transition the BIA would have to be streamlined and the Secretary of the Interior would have to assume the responsibility of planning the change. For the benefit of those who are BIA enemies, it must be pointed out that there is no other way to effectively transfer responsibilities to an independent Department or agency without the Bureau of Indian Affairs providing the base and core of the new "super" agency. The only other method to initiate the administration of a separate agency would be to run a parallel De- partment to the BIA which would duplicate administration. That does not appear to be feasible and Congress would probably be disinclined to duplicate appropriations for the same purpose. The role of the Interior Department in the transition period prior to the enactment of legislation creating such a department or agency would be to prepare itself at the direction of the Secretary of the Interior and proposed Assistant Secretary of Indian Affairs to ac- complish administratively many of the actions necessary to make it independent. Without regard to the establishment of a separate Department a complete inhouse overhaul of Indian Affairs is badly needed to provide an efficient delivery of budget and services as well as to administratively remove departmental conflict of interest. For in- stance, the Commissioner of Indian Affairs should be given Assistant Secretary status and the Associate Solicitor of Indian Affairs should be established as the General Counsel of the BIA. The independent department or agency would be empowered to di- rectly administer or coordinate all the activities and responsibilities of the executive branch related to Indian tribes and their members. This new department, in addition to coordination would be the principal administrator of a tribal budget system which would be consolidated in a manner which would advise Congress of the total needs, priorities, planned projects and proposed budgets for all Federal prgorams — pro- grams possilDly not administered by this department or agency would still be affected by its budgetary requirements and priorities. The legis- lation establishing this department or agency would contain certain elements as follows : a. Provisions for tribal and organizational freedom. b. A legal department operating independently of the Justice Department. c. An Indian career service, independent of the civil service organization. d. A program and budgeting system possibly independent of the Office of Management and Budget. e. A decentralized program and budget development process, eliminating the present three-tiered organization. f . Provisions for assuring maximum local control. g. Provisions for delivery funds, assistance and programs directly. h. A substantial decrease in administrative cost. i. Additional program funds available for tribes. A separate agency would consolidate programs from Federal de- partments which are a part of a separately established Indian service structure which exists because of the unique status of Indian tribes. These programs were once almost solely within the Bureau of Indian Affairs and the Department of the Interior, but since the separation of Indian Health Service and establishment of the Office of Indian Edu- cation in HEW, administration has become complicated if not nonexistent. The programs which might properly belong in a separate Indian structure are listed by agency and department as follows: Prime consideration Agency or office Department Bureau of Indian Affairs Interior. Associate Solicitor for Indian Affairs Do. Portions of Lauds Division .Justice. Indian Healtli Service HEW. Office of Indian Education Do. Secondary consideration Office of Native American Programs HEW. Indian desk of economic development administration Commerce. Indian desk Agriculture. This is not a total list. The feasibility of which functions and offices should be transferred and whether by legislation or Executive order would have to be examined by the executive branch and Congress jointly with the Secretary of the Interior in the lead role. INTERIOR DEPARTMENT TRANSITION Until such time as a new department or independent agency is created, the Department of the Interior should consider administra- tively accomplishing certain tasks directly under the supervision of the Secretary or his delegate. AVliile a proposed Assistant Secretary- should provide the leadership, the Interior Department should not make the mistake of relying on the BIA to supervise its own manage- ment reforms. The alternative proposed is as follows : 1. Institute changes necessary to carry out the recommenda- tions of the BIA Management Review conducted by the AIPRC, and endorsed in this report. 2. Administratively upgrade the Commissioner of Indian Af- fairs to an Assistant Secretary for Indian Affairs within the Department of the Interior. 3. Devise a BIA budget system which adequately expresses In- dian needs and which provides for preparation of long-range plans by the tribes. Such a systeui should be separately accounted for within Interior Department by a delegate from the Office of the Assistant Secretary in charge of Proirram Policy and Budget. 4. Administratively remove the Associate Solicitor's Office of Indian Affairs from the Interior Solicitor's Office and create an Office of the General Counsel in the Bureau of Indian Affairs. 5. Remove the three-tiered inanagement structure of the Bureau of Indian Affairs by having its 90 agencies reporting and ne- gotiating directly with tlie Washington, D.C.. office. The practice of having 12 BIA area offices supervising and administering over an average of 9 agency offices needs to be evaluated along with their purposes and objectives. 289 6. Require the Bureau of Indian Affairs to prepare an annual report "svliich will consist of a report on programs, appropriate data, program evaluation results, and fiscal accounting reports. This report should be made available to Congress, appropriate levels of the executive branch, as well as the Indian tribes which the BIA serves. 7. Consider the establishment of a model technical assistance and administrative support facility in Denver, Colo., which would run parallel to existing BIA area offices without interfering with the daily operations of the field offices of the BIA. This office would provide technical assistance, contract administration, and man- agement support to tribes on a project basis. This model technical assistance center could also serve as a test model for a multi- agency service facility which could test the operational feasibility and effectiveness of an independent department or independent agency. The personnel could be assigned from other agencies also working on Indian reservations. Staff could also be assigned through the In- tergovernmental Personnel Act and funding flexibility could be pro- vided for by assigning this facility with the main field contracting functions as well as the responsibility for the technical assistance and training related to management and contracting. Grants and con- tracts could be monitored and evaluated from this facility which is ver\' accessible to "Indian Country." BIA TRANSITION The Bureau of Indian Affairs will play a "\cry important role in any organizational changes in the Executive branch as well as Indian Af- fairs' adjustments undertaken by the Secretary of the Interior within the Department. The new Assistant Secretary will play a lead role in assessing the feasibility and the degree of change necessary to de- velop a plan for a separate department or independent agency. "\Aliether the BIA is removed from the Interior Department or not, it is still imperative that the Secretary of the Interior internally pro- vide for tribal relief froin the Department's conflict of interest prob- lems. Any study should have implementation provisions built into it, thereby making a fundamental commitment to embark on a process of changing the Bureau of Indian Affairs from a management to a serv- ice agency. This commitment could spare Indian tribes the time and expense of a TTth study of the Bureau of Indian Affairs in 27 years. The Commission recommends a process which would involve the President's Office, the Office of Management and Budget, and the Sec- retary of the Interior. The Secretary should serve as the principal coordinator in the executive branch. It is, therefore, the sense of the Commission that the BIA can be more effectively refonnecl for efficiency by a separate operational plan- ning, implementation, and review unit which would work directly betAveen the Secretary of the Interior and the Assistant Secretary of Indian Affairs. 290 In summary, the transition recommendations to the Interior Depart- ment would be based on three premises : That the executive branch will seriously consider submitting a plan for an independent agency or department of Indian affairs. That an implementation of the management recommendations for the Bureau of Indian Affairs is a necessary first step in a process for a change. That the Secretary of Interior consider the establishment of a "Management Improvement Eeview Office" reporting to the Sec- retary which would provide early assessments for future planning as well as implementing badly needed improvements in the present Bureau operations. The following steps are recommended as an alternative approach to a transition administration for the Bureau of Indian Affairs. All studies conducted should initiate action and review. 1. Establish a Management Improvement Review Office to plan, organize, and supervise the implementation of recommen- dations to improve the Bureau of Indian Affairs, while guaran- teeing the uninterrupted flow of essential services to the Indian people. 2. The process of implementing recommendations should pro- vide for tribal participation within BIA areas to assure resolution of specific organizational and procedural problems identified by Indian tribes, such activities implemented by a predetermined schedule. 3. The plan must include a management information sj^stem keyed to the needs of Indian tribes for their use in making local policy and program decisions, as well as for providing an adequate statistical data base for national objectives. The materials pro- vided should allow common access to the Federal Government and the Tribal Governments in order to promote deliberations on equally beneficial terms. 4. The plan must include : (a) A budget system which allows tribal programs and priority needs to reach congressional committees in spite of 0MB restrictions or ceilings. (b) A personnel system which provides for developing mis- sion statements, position descriptions, qualifications, and a recruitment program to encourage qualified Indians to apply. This could be the first step of instituting a new "Indian Ca- reer Service" discussed elsewhere in this report. (c) An accounting system to provide a basis for analysis between congressional appropriations and actual fund usage, together with evaluations as to progress and accomplishments toward established tribal goals. (d) A system of publishing current tables of organization, delegations of authorities, policy and procedural guidelines, and a method of keeping tribes up to date an operational rules and regulations involved in Bureau of Indian Affairs administration. 291 5. Implementation of organizational changes, administrative clianges, and certain procedural changes requires reevaluation of central office activities, including the field extensions of the cen- tral office; area office activities, including special multitribal school and special office activities now under area offices; and agency offices where serving multitribal activities. The latter to determine the need for reducing multitribal agencies by increas- ing single or dual agency offices to give greater emphasis on local decision making powers at the tribal level. 6. The Management Improvement Review Office should re^dew and cooperate with the executive branch in planning for reorganization of the executive branch as proposed by the Presi- dent, in order to have an opportunity to clarify the trust respon- sibility and to prevent any intended or unintended diminishment of trust relations between the Indian people and the Federal Government. 7. The INIanagement Improvement Review Office should review and cooperate with a Special Action Office of the President if and when any work is done to establish a new department or separate agency for Indian Affairs. See other section of this chapter regarding "A separate department." I 1 PRESIDENTIAL LEVEL | 1 1 OFFICE OF THE PRESIDENT SECRETARIAL LEVEL rSECRETARY OF THE"| L INTERIOR J 1 BUREAU LEVEL TASSTSTANT SECRETARY] [for INDIAN AFFAIRS J \ • ^ 1 0MB PRIVATE •^"p"^# IIIDIAN INDUSTRY J 1 COMMUNITY / 1 / 1 DEPARTriF.NT OF THE INTERIOR / 1 / 1 f UNDER SECRETARY . / r \fOR INDIAN AFFAIRS 1 J / 1 / 1 \ y_i\N'AGEMENT IMPROVEMENT 1 IMPLEMENTATION REVIEW OFFICE BUREAU OF INDIAN AFFAIRS / DEPUTY ASSISTANT DEPUTY ASSISTANT SECRETARY SECRETARY OPERATIONS POLICY DEVELOPMENT AND ANALYSIS • DEPUTY ASSISTANT SECRETARY ADMINISTRATION 292 GENERAL COUNSEL ♦ TRUST PROTECTON • Legal Advice DEPUTY ASSISTANT Secretary OPERATIONS • Human Res • Natura 1 Resou 'ces • Tr Lbal Goi erni nent De /elo pmer t ASSISTANT SECRETARY fOR INDIAN AFFAIRS LOCAL SERVIC CENTERS ♦ Tribal Government and/or # Local Agency Superintendent DEPUTY ASSISTANT SECRETARY POLICY DEVELOPMENT AND ANALYSIS Dev tSAnalvsis • Interqover • Audit and Review nalSLea islative « Public Af 1 airssin formativin ADMINISTRATION • Pl^ nninq and Budqeti 1^ • Fir 1 Manaqement • Pe: • Cor Sonne 1 s/Grants • Sa- aport Serv Lces PROPOSED ORGANIZATION CHART FOR BUREAU OF INDIAN AFFAIRS REALIGNMENT SCHEDULE ACCOMPLISHED NO LATER THAN JANUARY, 1978. PROPOSED ORGANIZATION CHART FOR BUREAU OF INDIAN AFFAIRS 293 THE CREATION OF SEPARATE INDIAN COMMITTEE IN CONGRESS While the administration of Indian affairs in the Congress was not directly considered when the Keview Commission was established, the congressional process is an integral jDart of Indian affairs. It was vital, therefore, that the Review Commission consider the issue of congressional jurisdiction over Indian affairs. From the early 1800's until 1946, the Senate and the House had vested jurisdiction over Indian affairs through full standing commit- tees. Under the Legislative Reorganization Act of 1946, the commit- tees on Indian affairs were abolished and the legislative and oversight jurisdiction over Indian matters was vested in the Committees on Public Lands in the House and Senate prior to the termination era. Since that time through the 94th Congress, these committees main- tained a subcommittee on Indian Affairs. Although several major use- ful pieces of legislation affecting Indians were enacted during the 30- year intei-val, this subcommittee arrangement has failed to provide an adequate forum for legislating appropriate solutions to problems af- fecting Indian people. In the 95th Congress, the Senate has, mider S.J. Res. 4, created a temporaiy Select Committee on Indian Affairs. This is a step forward in the Senate's approach to Indian affairs. However, in the 95th Con- gress, the House of Representatives has taken a step backwards, by merging the Subcommittee on Indian Affairs into a subcom- mittee which also has jurisdiction over public lands. Under this ar- rangement, the importance of Indian affairs will be further dimin- ished. Furthermore, other portions of Indian affairs are handled by other committees; i.e., Education and Labor Committees has certain responsibility for Indian education ; Indian health is handled by an- other committee and economic development by another. In the Con- gress overall there are more than 10 cx)mmittees with responsibility for some Indian activities, with the result that Indian affairs is treated in a disjointed, uncoordinated, and haphazard manner. Many of these committees are unable to handle Indian affairs adequately because they usually lack staff trained in Indian matters. Generally, Congres- sional staff people are experienced and trained in general administra- tion and do not have the knowledge and experience to deal with the uniqueness of Indian people. These special qualities can only be de- veloped through long experience in Indian affairs through a per- manent organization. Unless Congress accepts its responsibility to the Indian people by establishing permanent select committees on Indian affairs in the House and the Senate, problems affecting Indian people cannot be fully resolved. A. Congressional Responsibility for Indian A fairs In 1787, the Constitution Convention approved the Constitution of the United States and sent it to Congress for action. Article 1, Section 8, Clause 3 of the Constitution provided Congress with the power "to regulate commerce with foreign nations and among the several States 294 and with Indimi tribes^ [Emphasis added.] The Federal courts have since held that the plenary power of Congress over Indian Affairs derives from its responsibility for regulating commerce with Indian tribes and from treaty-making. As a consequence, Indians and Indian tribes, more than any other segment of the American population, have l)een uniquely affected by congressional action or inaction in their daily lives. In fulfilling the responsibilities set out in the constitutional docu- ments, the Congresses established ad hoc, select, or standing commit- tees as their needs required. The Continental Congress on June 16, 1775, established a Committee on Indian Affairs which was charged ^ith several duties including that of taking steps "* * * for securing and preserving the friendship of the Indian Nations." In the next year on April 26, 1776. the Continental Congress established a Stand- ing Committee on Indian Affairs. The early Congresses under the Constitution of the United States followed a similar practice but did not establish a standing Committee on Indian Affairs in the_ Senate until January 4, 1820. The House of Representatives established a standing Committee on Indian Affairs until 1947 when it was made a part of the Committee on Interior and Insular Affairs pursuant to the Legislative Eeorganization Act of 1946. B. The Unique Status of Indians Since Indians are the only group of people specifically identified in the Constitution, it is clear that a special and unique political relation- ship exists between the Indian tribes and the Federal Government. To fulfill these historic obligations to the Indians, the Federal Gov- ernment through treaties and statutes has promised to serve as trustee to the Indian tribes and Indian people. As the trustee, the Federal Government ought to organize itself to provide those ser-vdces for protection and enhancement. Furthermore, the Federal Government as trustee is accountable for performance at the highest degree of skill, care and diligence with the "Prime Agent" and officials held personally responsible for any breach thereof. The Congress itself is the most essential part of the Federal side of the Federal-Indian relationship. IIa-\dng recognized and ratified Indian treaties, established constitutional relations, enacted subse- quent laws regarding Indians, Congress is responsible for maintain- ing the polices and practices so created. A conmiittee through which the Congress can provide oversight and consider new plans, new schedules, and funding needs is essential. During the 19th century, Indian Affairs played a major role in the affairs of the United States, Indian issues have decreased in im- portance, but the uniqueness of Indian tribes in their relationship with the United States remains. The special trust responsibility for Indian tribes and their resources has not been diminished and should be acknowledged by the Congress through the creation of permanent standing committees on Indian affairs in both Houses. C Conflict of In terest in the Management of Indian Affairs The jurisdictional basis of the Interior Committees into which Indian affairs has been merged since 1946 has given rise to severe 295 conflicts of interest. The responsibility of the Interior Committee to legislate in areas of public lands, national parks, mining and water and power resources has often been in conflict witli Indian trust in- terests. So long as Congress fails to vest jurisdiction ov^er Indian matters in cases of conflicts of interest, Indian interests will suffer. D. Congressional Consideration of Indian Issues Requires a Perma- nent Select Com/mittee on Indian Affairs The complexity and volume of Indian law and the many problems afi'ecting the Indian people call for a permanent standing committee on Indian Affairs. Among the complexities Avhicli will face Congress in the coming years will be the resolution of Indian claims for land taken by States and others in violation of the Indian Trade and Intercourse Act of the late 1700's and the early 1800's. Most widely known are the Passama- quoddy and Penobscot Indian claims in ^ilaine and Massachusetts. Similarly, the Catawbas have such a claim in South Carolina. More- over, the Crow Indians may have claims for tlie return of large areas of land acquired in violation of their Allotment Act. The research to identify a reasoned and principled legislative approach to such situa- tions is extensive. The interests and responsibilities of disparate groups must be considered in sensitive negotiations, which must resolve these claims. Congress can expect to confront many of these situations and a permanent Indian affairs committee adequately staffed is neces- sary to ensure continuous principled and appropriate legislation. Many of the statutes in title 25 of the United States Code are obso- lete, in conflict with later legislation, are in conflict with Federal policy, duplicative and lack clarity of legislative intent. These laws are not organized in a logical or practical format and must be re- viewed, consolidated, and codified. The last title of the United States Code to be revised and codified into positive law was title 5 (Government Organization and Em- ployees). This revision and codification process took more than 8 years with an initial staff of 29 people, and which had the active support of the executive agencies. The resolution of many Indian questions cannot be resolved without a fully staffed Indian committee. Besides the land title cases and revision of title 25, it is incumbent upon Congress to act on other Indian-related legislation. In the past, the small staff of the Indian Affairs Subcommittee has been able to prepare reports and draft legislation on only a very small fraction of proposed Indian legislation. Finally, the oversight responsibilities placed upon Congress on Indian affairs, are particularly important and time-consuming to the nature of Indian bureaucracy. Becaust; Indian tribes and Indian people are scattered throughout the Nation, no political pressure lob- bying processes aro available. More and more, it appears that con- gressional delegations from States with significant Indian popula- tions are catering to those constituents with the greatest political vot- ing power. "Wliere those interests conflict with Indian interests, the Members of Congress are reluctant to openly and vigorously support the legal status and promote protection, preservation and enhance- ment of Indian assets. Indian issues are national obligations and can- not be resolved through a local or regional view. Consequently, 296 carefully documented investigation and oversight activities are neces- sary, and can only be accomplished with consistency by a permanent Indian committee. Recommendatioxs for Federal Administration eligibility of tribes for federal programs The Commission recommends that: Congress enact affirmative legislation to reaffirm and guarantee the permanence and viability of tribal governments within the Federal system. Congress clarify the eligibility of tribal governments as prime spon- sors for Federal domestic assistance programs and other programs delegated to State and local governments. Congress enact legislation establishing tribal governments as equal to State governments in Federal domestic assistance programs. This should include amendment of all enabling legislation, program acts, and administrative regulations which require tribal governments to come under State jurisdiction. Congress amend the Intergovernmental Cooperation Act to include tribal governments, and enact the Federal Program Information Act (S. 3281) to include Indian tribes. Congress appropriate such funds as are necessary to allow the prep- aration of operations and procedure manuals to be used by tribal gov- ernments in their administration of tribal government affairs. These manuals would include operation models presenting alternative sys- tems of financial management, accounting, personnel policies, and pro- cedures, management information and organization structure. Congress enact Senate Bill S. 2175 — Public Participation in Gov- ernment Proceedings Act of 1976. ESTABLISHMENT OF INDIAN CAREER SERVICE The Commission recommends that : The executive branch establish an Indian Career Service consistent with statutory provisions and should be charged with the reponsibility of develoi^ing the employment standards as required by section 12 of the Indian Reorganization Act of 1934.^- The executive branch propose a plan to imj^lement the provisions of section 12 of tlio Indian Eeorganization Act of 1934 by establishing standards for the hiring of Indians apart from the requirements of civil service laws in the Bureau of Indian Affairs and the Indian Health Service. Congress amend section 12 of the Indian Reorganization Act of 1934 to make the Indian preference provisions applicable to all Federal ao-encies administering pi^ograms specifically directed to Indian affairs. CONTRACTING PREFERENCE AND TECHNICAL ASSISTANCE The Commission recommends that: The executive branch coordinate efforts to provide for the direct administration of contract funds by the Indian people. "- A complete legal analysis with findings related to Indian preference laws Is con- tained in the Task Force Number Nine final report, vol. I., pp. 106-120. 297 The executive branch direct the implementation of section 7(b) " of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e(b) supp. 1976) to direct its applicability to all Federal agencies; further to direct the General Services Administration to amend Federal procurement regulations to : Clarify the scope and intent of section 7(b) . Emphasize that contradicting orders cannot modify a congres- m on 1 1 *ipi" Clarify' that title VII, section 703 (i) of the 1964 Civil Eights Act provides for permissible preferences. Provide standard Indian preference language be included. The executive branch direct that the Office of Federal Contract Com- pliance within 0MB offer a statement in support of the amended Federal procurement regulations. The Bureau of Indian Affairs compile and maintain a permanent list of qualified Indian contractors ; such a list to be maintained ; stand- ards being maintained; such lists to be available to all Federal agencies. The executive branch coordinate and consolidate all technical assist- ance efforts into a single agency. The executive branch establish a national professional and technical Indian skills bank administered by Indians. The executive branch should direct and coordinate all agencies to establish a model National Indian Technical Assistance Center — con- solidating personnel with technical assistance grants and contracts. Such consolidation to run parallel to existing BIA service units to test the feasibility of an independent agency service center. LONG-RANGE EXECUTIVE REORGANIZATION OF INDIAN ADMINISTRATION The Commission recommends that : The President submit to Congress a reorganization plan creating a Department of Indian Affairs or independent agency to be comprised of appropriate functions now mainly administered by the Bureau of Indian Affairs, Indian Health Service, and agencies within the Interior and Justice Departments. Rights protection be consolidated as set forth in chapter 4 of this report.'^* The plan for a transfer of appropriate programs and functions to the new agency include a review of those programs identified in part III of this chapter. In the interim, the President establish a tempo- rary special action office within the "VVliite House which would be charged with responsibility for preparing a plan for the President. The President designate the Secretary of the Interior and the Sec- retary of Health, Education, and Welfare to implement and coordi- nate efforts to evaluate and plan the transfer of various agencies in the event of the establishment of a department or of an independent agency. Congress authorizes a management study of the Indian Health Serv- ice to be conducted utilizing experts from the public and private sec- tor and representatives from the Indian community. 73 A legal analysis of the mandates of Indian contracting under 7(b) is contained in the final report of Task Force Number Nine in VI, 2 :C. 7* The authority of the President to reorganize the executive branch (see chapter 9, title 5, U.S.C.) does not include the creation of a new cabinet or executive department, the President submit to Congress a reorganization plan. 92-185—77 20 298 The President submit to Cono;ress an appropriate plan for the re- moval of all Indian education programs from the Office of Educa- tion, in the Departmeiit of Health, Education, and Welfare and the Bureau of Indian Affairs to a consolidated independent Indian agency. Such Executive action would establish: Stronger lines of connnunication between tribes and the source of educational funding; An administrative structure that would support the develop- ment of tribal control; Direct targeting of moneys and services to tribal communities ; A reliable data base, such that effectiveness of fund utilization .can be monitored; Programs that permit individual ization of services to meet the unique needs of each project; and Direct rather than coincidental aid for educational problems. SHORT-RANGE EXECUTIVE BRANCH PROPOSALS The Commission Tecommends that: The Secretary of the Interior implement an action plan for the modernization of the Bureau of Indian Affairs in order to change it from a management to a service agency. Such a plan give maximum consideration to the Commission's "BIA Management Study" pro- posals. Generally these are: A new organizational structure be established to transfer au- thority and responsibility to the local level. Particularly, the present area offices be divested of their line authority and be established as service centers. The establishment of a planning and budget system which will stimulate Indian tribal participation and place more emphasis on tribal project priorities in the congressional appropriation process. Tribes should participate in the budget process directly with the Commissioner or Assistant Secretary of Indian Affairs and Congress to the greatest degree possible. The establishment of a program to improve the communica- tions and management information system throughout the BIA and contract for access to an automatic data processing system which will also be made available to tribal computer terminals. The reorganization of the personnel system to improve BIA effectiveness while continuing to train, hire, and upgrade Indians. The executive branch direct the Secretary of the Interior to com- pile an appropriate manual of operations which will define and publish minimum and standard threshold trust protections in management, procedures, accounting, monitoring, evaluation, and reporting which should be provided as a standard for all Departments and their field offices as well as for Indian tribes. 299 The Secretary of the Interior, under existing authority, undertake the amendment of the rules of procedure of the Department of the In- terior (43 C.F.R. subtitle (a), 1975) pursuant to sec. 4(d) of the Ad- ministrative Procedures Act (5 U.S.C. 553(e) and 43 C.F.E. 14.1) to provide compensation for certain participants in the rulemaking and adjudicatory proceedings conducted by the Department of the In- terior, including public informal hearings conducted in rulemaking procedures. The Secretary of the Interior direct that the Commissioner of In- dian Affairs be given Assistant Secretary status. This can be accom- plished administratively, but may require other supporting legislation. The Secretary of the Interior remove the Associate Solicitor's Of- fice of Indian Affairs from the Interior Solicitor's Office and create an Office of the General Counsel in the Bureau of Indian Affairs. The Secretary of the Interior establish a separate office of Indian program development and budget, as well as a separate office of policy analysis for Indian Affairs under the Assistant Secretary, Program Development and Budget. The Deputy Under Secretaiy for Indian Affairs become an inte- gral part of an implementation team and direct Secretarial in-house administrative action. The Secretary of the Interior direct the Bureau of Indian Affairs to establish a duly elected Board of Regents to be recognized as a unit representing tribes and tribal opinion to contract for and ad- minister post-secondary schools. The Secretary of the Interior direct the Bureau of Indian Affairs to establish that a duly elected Board of Regents representing each tribe be recognized as a unit representing tribes and tribal opinions to contract for and administer those multitribal elementary and sec- ondary schools. CREATION or CONGRESSIONAL INDIAN AFFAIRS COMMITTEES The CoTnmission recommends that: Congress establish permanent standing or special select committees for Indian Affairs in each Plouse or place all jurisdiction, oversight, and legislative authority in one joint select committee. CHAPTER SEVEN THE ECONOMICS OF INDIAN COUNTRY The first and most basic step for development is to set development goals which reflect the long-term interests of all tribal members. Once these goals are estab- lished, tribes can then evaluate their possible sti-ategies and tactics. There is an essential theme which will carry tribes through all aspects of the development process. Tribes must reclaim control over their resources — land, water, minerals, timber, fisheries, etc., and they must be responsible for all decisions as to their use and development. For a tribe whose goal is self-determination, every pro- gram should be evaluated for its impact on the tribe's ability to establish a meaningful development process. (301) CONTENTS Page Overview 305 Natural Resources Protection and Recovery 308 Land 308 Recommendations 312 Agriculture 314 Recommendations 322 Timber 324 Recommendations 328 Water Resources 329 Recommendations 338 Mineral Resources 338 Recommendations 346 Human Resources 347 Recommendations 354 Physical Infrastructure 354 Recommendations 358 Investment Capital 358 Recommendations 362 Investment of Trust Funds 362 Recommendation 363 Enterprise Development Efforts 364 Recommendation 365 (303) CHAPTEK SEVEN THE ECONOMICS OF INDIAN COUNTRY Overview Indian people have had to relinquish their lands and resources, giv- ing way to the white man's needs. In 1887, there were almost 2 billion acres of land under Indian use. By 1924, this total had shrunk to 150 million acres; by 1975, to 50 million acres. This process was most dramatic during the early history of this country. But economic and social deprivation still continued. Too often, Indian timber, minerals, water, rich agriculture and grazing lands, are exploited through leases whose return is grossly unfair. The administration of Federal programs and the execution of the trust responsibility of the U.S. Government should be directed toward establishing or reconstituting viable economies. Instead, a relationship of dependency has been allowed to grow between Indian people and the United States Government. A look at the Federal Indian budget demonstrates that the j)i'i^^^^iT condition being fostered continues to be one of dependency. Sixty percent of the Indian budget is committed to providing social- welfare services, which are generally available to all other Americans as well. Yet, only 9.5 percent of the budget is used for the execution of the trust responsibility of the United States to protect the re- maining natural resources of Indians and further development of Indian country.^ The development task is a difficult one. For the most part, Indian reservations suffer from all the well-known symptoms of extreme poverty in America although some tribes have begun slowly to reverse that existing condition by demonstrating that carefully planned proj- ects can result in success and productivity. These accomplishments are truly significant \Yhen it is understood that the tribes have not had autonomous control over decisions with respect to resource allocation and reinvestment of returns on original investments. They have taken the initiative in insuring that their lands be utilized in such a manner that returns from production flow to the tribe rather than elsewhere ; that prudent investments in industrial development are encouraged within their territories ; and that a relatively stable and efficient Indian labor force be established. But this is not the case for the large majority of tribes. In fact, indicators show that dependency, not productivity, continues to rise. However, the gains pointed out in some areas are mentioned to illustrate that under certain conditions tribal govern- ments can establish improvements in economic productivity even in the face of complex, adverse conditions. 1 U.S. Dept. of the Interior budget justifications, Bureau of Indian Affairs, fiscal year 1978. (305) 306 Even casual observers have been startled by the stark contrast in economic conditions between reservation lands and adjoining non- reservation lands and communities. There has been an obvious lack of meaningful/levelopment of tribal lands while one can observe pros- pering communities just beyond reservation borders. To simply re- cord the income gaps and then suggest that existing national income redistribution (poverty) programs will provide the necessary solu- tions toward reversing reservation economic dependency is the tradi- tional but plainly inadequate response. CAUSATIVE FACTORS OF DEPENDENCY Before one can begin to formulate revitalization plans, it is necessary to come to grips with fundamental historical and causative, factors which resulted in the creation of a dependency environment.^ver the years, rather than encouraging tribes to initiate tribal production activities, the Federal Government has increased dewndency by en- couraging the destruction of the tribal social fabric^In response to antitribal administrative actions, tribal members developed ingenious ways to preserve tribal culture under difficult conditions, a situation which still exists in Indian country. As an example, in a report to Congress by the General Accounting Office (GAO) in discussing the Gross Reservation Product (GRP) of one tribe, it was noted that even though the GRP had increased by 89 percent from $20.3 million in 1968 to $38.5 million in 1972 the bulk of the increase was in Government expenditures. Government expendi- tures increased from 34 percent of the GRP in 1968 to 50 percent in 1972, showing an increase in dependency. The per capita monetary in- come to tribal members increased by 65 percent from $835 in 1968 to $1,380 in 1972. This shows an important percentage increase. How- ever, it is a percentage figure based on a minimal income base and does not represent anj^ significant increased income. A breakdown of tribal per capita income follows : 1958 1972 Amount Percent Amount Percent $610 73 $1,063 77 17 2 23 2 48 6 69 5 160 19 225 16 Income from wages and salaries Education scholarships and vocational training. Veterans and social security benefits Welfare and unemployment payments Total 835 100 1,380 100 It is important to note that while there were increased expenditures in education scholarships and vocational training, the effort in this area remained constant at 2 percent.^ It must be noted that there was a decrease in percent spent on welfare and unemployment payments. These figures are encouraging. If additional opportunities for train- ing and education in the economies such as business management and natural resources were available, Indian tribes would have an in- creased capacity for developing a self-sufficient economy. 3 U.S. Comptroller General, report to the Congress. Better Overall Planning Needed To Improve the Standard of Living of White Mountain Apaches of Arizona, Washington, D.C. : GAO, Aug. 12, 1975. p. 34. 307 Althougli absolute productivity on reservation has increased, the bulk of transfers have resulted in a reduction of relative productivity in relation to total income in Indian communities. In other words, the rate of increase in expenditures by the United States has exceeded the rate of increase in reservation productivity. Tliis situation might have been averted if the Federal policy would have permitted a flow of investment capital to reservations via development banks or other intermediaries. Unfortunately, the fact is that on some of the largest reservations productive income generated by the tribe or its members only makes up 10 percent of the total distributed income. The con- tinuation of policies which lead to such conditions does not lend itself to investment opportunities. IXDIAN CONTROL NECESSARY FOR ECONOMIC SELF-SUTTICrENCY Indian people can regain their historic economic self-sufficiency only if they regain control over their natural resources and begin to de- velop these resources themselves. The following section first discusses what Congress must do to return to Indian people control of their own resources. Second, it examines the action Congress must take to sup- port Indian people in their struggle to develop their resources by and for themselves.(Self-reliance is not possible without an initial commit- ment of Federal assistanceNThis means using Federal assistance to accomplish goals set by Indilm people. We must view the issues of economic development as critical to other issues that Congress is attempting to resolve — particularly issues relating to Indian self-determination. Implicit in the policy of Indian self-determination is assistance to the tribes for the purpose of reduc- ing their dependence on the Federal Government. To develop. Indian people must move away from the dependency relationship. The consensus of Indian opinion is that self-sufficiency is the primary goal of development. If self-sufficiency is the goal, self-reliance is the only possible means. Self-reliance will not mean scorning all Federal assistance. It does require effective and wise use of that assistance. Self-reliance means determining a truly Indian de- velopment process, using Indian labor, Indian resources, and Indian creativity. The first and most basic step for development is to set development goals which reflect the long-term interests of all tribal members. Once these goals are established, tribes can then evaluate their possible strat- egies and tactics. There is an essential theme which will carry tribes through all aspects of the development process. Tribes must reclaim control over their resources — land, water, minerals, timber, fisheries, etc.. and they must be responsible for all decisions as to their use and development. For a tribe whose goal is self-determination, every pro- gram should be evaluated for its impact on the tribe's ability to estab- lish a meaningful development process. THE FEDERAL ROLE The policy changes discussed above must be viewed as fundamental. The Federal role must be to provide a favorable climate for economic development. This policy must be expressed through drastically in- 308 creased appropriations for capitalization of necessary community facilities, enterprise development projects, and other essential com- munity support system, and by alternative means for acquirino; capital resources. New Indian financing mechanisms (e.g., development banks) and investment procedures must be established and develop- ment of basic skills and technologies must be fostered. This chapter will examine the structure of differing tribal econo- mies and the use of their reservation resources. The analysis contained herein is based on Indian comments from across the country and, it is believed, reflects faithfully the opinions and desires of Indian. people. NATUKAL RESOURCES PROTECTION AND RECOVERY Land The overwhelming conviction of Indian people is that an adequate tribal land base is essential. Their economic security and development of tribal economies depend on it ; the very survival of Indian cultures and the permanency of Indian tribes as governmental units depend on it. Recognition of this basic fact was the reason the Federal Gov- ernment established Indian reservations in the 18th and 19th centuries. The allotment policy contained in the 1887 Dawes Act represented a complete reversal by the U.S. Government. The clear intent of the allotment policy was to break up the tribes' communal land base in order to force the assimilation of Indian people into non-Indian society. The result is the bizarre land ownership patterns existent on many reservations which make it virtually impossible for those tribes to engage in meaningful economic development. The importance of land to the Indian was recognized again in the 1930's when the Indian Reorganization Act of 1934 (IRA) was enacted by Congress. But Indians were again subjected to a radical shift in Federal policy when, in the 1950's, a Federal termination policv prevailed and over 3 million acres of land passed from Indian ownership. This ambivalence of the United States Government has taken a very heavy toll over the years. HISTORY OF INDIAN LAND LOSS In 1875, 4 years after Congress had ended formal treatymaking with Indian tribes, the total Indian reservation land base stood at approximately 166 million acres, or about 12 percent of the land in the continental United States. By 1887, with the passage of the General Allotment Act. further cessions of lands had occurred pursuant to agreements urged by the United States and Indian landholdings diminish.ed to less than 137 million acres. But, the next 45 years were even more disastrous for the Indian. Tremendous political pressure in the West for the opening up of more land to homesteading, the involuntary allotment of tril^al lands to individual Indians, and the sale to non-Indians of "surplus lands" from reservations resulted in the Indian land base being reduced to approximately 52 million acres by 1934, close to what it is today. 309 The story of this loss of land has been documented previously by- man}' authors and Government reports.* and is discussed in detail earlier in this report. Thus, it is not necessary to reexamine indepth this historical movement. In order to understand the Indians' caution ■with respect to Government polic3% however, a brief look is helpful. Under the General Allotment Act of 1887, 118 reservations were allotted and of those 44 were opened to homestead entry under public land laws. Approximately 38 million acres of Indian land were "ceded" outright to the Government with the proceeds distributed in per capita payments or agency funds. Another 22 million acres of so-called surplus tribal lands existed after allotments were made and reserva- tions opened for settlement by non-Indians.^ Of the tribal lands allotted to individual Indians, a trust period of 25 years was placed on the land with restrictions upon State taxation and on the owner's right to sell his or her land without the Govern- ment's consent. After 25 years, a fee patent would be issued removing all restrictions and protections. As a result of issuance of fee patents, 23 million acres were sold out of Indian hands between 1887 and 1934.^ often to pay debts or provide immediate income for poverty-stricken families; an additional 3.7 million acres were sold by special per- mission. By 1934, 3 percent of the allotted land converted to fee patents remained in Indian ownership.'^ Primarily, in recognition of the failure of the allotment policy, Congress, in 1934, enacted tlie Indian Reorganization Act (IRA), which was aimed at tribal economic rehabilitation. That Act halted further allotments, extended indefinitely the trust status of those allotted lands not yet granted a fee patent, and restricted their con- veyance to tribes and other Indians.^ The IRA also authorized the Secretary of Interior to "acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations * * * for the purpose of providing land for Indians," ^ and it authorized the appropriation of $2 million annually. It also specified that title to any lands acquired under the Act "shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation." i° Initially, the Bureau of Indian Affairs was aggressive in seeking funds under section 5 of the Act to acquire lands and place them in trust for Indians. In 1936 and 1937, Cono-ress appropriated a total of 62 million for this purpose." However, appropriations for land acqui- sition dropped off steadily. In 1944, nothing was appropriated under the Act.^2 rpi^g result was that in the 40-year period since passage of lapY'r- ^^V^^^u^ ^H^^%^ "^^^^ Indian : America's Unfinished Business (XJ. of Okla. Press, l T, V r!i =:"/, X 3' Dnoheneaux, One Hundred Million Acres fMacmillan, 197?!) • Con^'?lst self (1969')'''° Education: A National Tragedy— A National Cliallenge, 91st T-«l^'^*'?"2l p^onrces Board, Report on Land Planning. Part X. Indian Land Tenure Economic Status, and Population Trends, U.S. Govt. Print. Off., 193.5: -lenure, • Ibid! ' « Act of June 16, 19.34. 48 Stat. 9R4 ' Supra, sec. 5 ; 25 U.S.C. sec. 465. ^^ Ibid. Pc^ic^'/Revfi'w'comiSssx^n'May m ^^''^' ^'^""^"^^ "^'^ "^"^^^^ °^ *^« ^^^'''^^'^ 1'^'^''^° ^ Ibid. 310 the IRA, a total of $5,988,077 has been expended under section 5 of the IRA for land acquisition and consolidation on behalf of Indians.^^ This money purchased 595,157 acres, over 70 percent of which was suitable at best only for grazing livestock. If the authorization under the Act had been used to its fullest extent, there would have been appropriated more than $80 million for land acquisition and consolidation. An even sadder aspect of this record is that within the same time period, in which the Federal Government was acquiring 595,157 acres for Indians, it was also taking other Indian lands. From 1936 through 1974, a total of 1,811,010 acres of land were taken. This does not even include lands taken for rights-of-way for roads, pipelines, powerlines, and other Federal or State projects. It does, however, include loss of land for projects like the Garrison Reservoir (175.000 acres), Oahe Reservoir (101,952 acres), and the Riverton Project (16,152 acres). These takings were controversial at the time and even today are making national headlines. The opening of Garrison Dam in the spring of 1953 was a bitter defeat for the Fort Berthold Indians, as the dam flooded one-fourth of the reservation. The Bureau of Reclamation's original choice for a site prevailed even though it had been declared unsafe by the Corps of Engineers.^* Today the Garrison Dam and Oahe Reservoir are among "the most econom- ically wasteful and environmentally destructive" water projects built with Federal money.^^ The Bureau of Reclamation now claims, after severely disrupting the economic base of several tribes, that the Oahe Project would only return a dollar for each dollar spent and many white farmers do not want the project for fear of damage to their land.^^ The next land taking anticipated is the Fort McDowell Reser- vation by the Orme Dam Project, a part of the Central Arizona Proj- ect even though the State water engineer testified that "the project is viable with or without Orme." ^^ However, historical experience has shown that it is less politically sensitive and less expensive to take Indian lands for Federal water projects than non-Indian lands. From 1936 through 1974, Indian people lost 488.226 acres of land. This is almost 13.000 acres per year, during a period when the official policy of the United States Government was to assist tribes in consolidatin'o- their land base and seeking economic self-sufficiency. FEACTIOXATED OWXERSHIP Although there has been some improvement, much of Indian land is unusable because of fractionated ownership of trust allotments.^^ With each generation more and more heirs inherit interests in small parcels of land, and in some cases more than 100 individuals may hold interests in a 160-acre piece of land. In one case, on the Standing Rock w Ibid. 1* Ibid., app. B. ^^ Grace Liphtpnstein. "Dams Atp An Endangered Species", New York Times, jMar 1077 i_9 William Robbins, "President Is Viewed Firm on 19 Cuts", New Yorlc Times, Mar. 12, 1" Grace Lichtenstein, "Arizona Concerned by Aqueduct Fund Cut", New Torlc Times Mar. 16, 1977. " See. e.g., Langone. S., Tbe Heirship Problem and Its Effect on the Indian in Toward Economic Development for Native American Communities, U.S. Govt. Print Off Wash- ington, D.C., 1969. 311 Reservation, 3G0 people own one allotment. More than 10 million acres of Indian land are burdened by this bizarre pattern of ownership. The BIA spends increasing amounts of money each year administering their lands. It was observed 20 years ago that "Indian allotments are useless except as a parcel to be combined with other land for a sufficient- sized livestock operation ; for, whereas 2.500-3,000 acres are required in much of the Dakota country for an efficient ranch, the allotments range in size from 160-640 acres. Hence, individuals continue to sell their allotments, lease them to non-Indians, or let them lie idle.^^ There- fore, it is not surprising that non-Indian farmers cultivate about 63 percent of Indian agricultural lands and that Indian people believe that land consolidation and acquisition is important to their economic future. CONSOLIDATIOX PR0GRA3HS Some tribes have developed land acquisition and consolidation pro- grams to solve the problem of "checkerboard" ownership of land. Fre- quently, these have been supported by tribal funds and, in some cases, by loans from the Federal Government. But past and current Federal loan programs have been woefully inadequate, totaling overall less than $50 million ; and it is estimated that at least $1.5 billion is needed to buy the 10.2 million acres of existing allotted land.-° Moreover, not only are Federal loan programs insufficient, but they expose trust land to a serious threat. The Farmers Home Administra- tion has been the largest source of loans for land repurchase in the last 6 years. Usually, tribes offer the land purchased or a guaranteed income, such as interest from tnist funds, as collateral. To repay these loans, the tribe must put the land into production. If the land was originally allotted, it becomes fee simple land on foreclosure. Thus, a land consolidation effort based on loans secured by trust land could result in further loss of Indian land.-^ The importance that Indians attach to reacquiring and stabilizing this land base is illustrated by the following excerpts from special tribal reports submitted to this Commission : -- Standing Rock Sioux Report : * * * today, one of the serious problems we have with the Indian administration is that they continue to fail to take any significant action with respect to restor- ing the land base. This should be their priority * * *. We believe that a viable solution to existing dependency related problems on Standing Rock, as well as those problems resulting from jurisdictional disputes is for tlie Indian adminis- tration to establish a concerted program to restore the reservation's original land base to the 1S89 reservation boundaries. (P. 21.) Crow Tnhal Report: During the Eisenhower administration, individual Crow tribal members were able to apply for and receive patents-in-fee which allowed them to sell their allotted lands easily to eager non-Indian ranchers and farmers. The resultant effect was a second, rapid reduction in the total remaining land base than com- prised the Crow Reservation. In 197G the total Crow-owned land base that re- ^5 Dorner, P., The Economic Position of the American Indian (lOS Harvard University, -• Task Force No. 7 final report, AIPRC, July 1976, p. 37. =1 Ibid, at 27. 22 Special tribal reports to AIPRC, 1976. 312 mainecl on the Crow Reservation is approximately 1.5 million acres, while the land base that accrued to non-Indians who reside within the reservation bound- aries is approximately 700,000 acres. (Pp. 55-50.) Walker River Paiute THhal Report : Between 1006 and 1926, reservation agricultural land was allotted in -20 acre parcels. By the 1930's, these parcels proved to be uneconomical * * *. Even leased units are far too small to be competitive with surrounding profitable farm opera- tions using modern metluids and equipment * * *. The federal laws governing heirship of Indian trust allotments can and must be modified to consolidate ownership in order that the Indian owner can enjoy the privilege of complete ownership and productivity utilize the properties * * *. (P. 2, ch. 8.) Affiliated Tribes of Northwest Indians : The concept of self-determination implies a substantial degree of economic independence. Though the funding sources are theoretically available, they are in most situations illusory or inadequate because of other impediments * * * to tribal economic development. (We) * * * have classified these impediments into four broad categories: (1) limited land resources and the lack of adequate Congressional appropriations for acquisition of additional land * * *. The desire for land is not a romantic notion. It springs from a serious analysis by Indians of their needs for cultural survival and the economic improvement of their people. The integrity of their land base is essential for the preservation and enhancement of all other re- sources — water rights, fishing, hunting, and trapping, timber and mineral reserves — in that Indian livelihood is derived from the land. To illustrate this point the Standing Rock Sioux Tribe in its report to the Commission found : -^ * * * It is clear to the Tribe that for us to become economically viable, we will need such a contiguous and restored land base. Those individuals who say that the reservation cannot be a viable place for Indian development do not know what they are talking about. Standing Rock never did agree to opening of the reservation under the Surplus Land Acts and does not agree to that to this day. We are advocating a restoration and land reform program, which can take place over a long period of time so that neither the Indian interests, nor the non- Indian interests will be discriminated against. Many people believe erroneously that non-Indians do not wish to sell their land. This is far from reality. Tlie Tribe is continuously approached by non-Indians who wish to sell their land to the Tribe. * * * We believe that since there seems to be a steady and growing group who want to move from the reservation and since it is our objective to gain back as much of the land that was taken from us without our consent, that it is morally, as well as economically reasonable, that the Indian Administration develop a program whereby the Tribe can regain trust title of those alienated lands as they become available for sale * * "'■'. EECOMMENDATIONS The Commission recommends that : Congress appropriate funds and provide technical assistance to in- sure the preservation, consolidation, and acquisition of Indian lands upon which to build tribal future. This includes assisting tribes in devising comprehensive land consolidation plans, and assisting land- less tribes in establishing a land base. Congress, therefore, must provide legislation which would : (1) Increase the funds in the Revolving Loan Fund (Indian Financing Act) administered by the Bureau of Indian Affairs, and create a set-aside specifically for tribal land acquisition. These loans should carry lower interest rates and longer terms than now exist for other enterprises receiving loans under the Fund. Present 23 Ibid., Standing Rock, 1976. 313 requirements should remain whicli stipulate that there be a rea- sonable prospect of repayment and that the applicants must have exliausted other avenues of reasonable financing, but there should be less rigid requirements relating to the profitability of the land. (2) Mandate that the Revolving Loan Fund have standby line of credit for tribes to use when immediate access to funds is necessary to purchase key tracts of land which are for sale and are essential to the tribe's acquisition or consolidation plans but would probably otherwise be lost to the tribe during the loan application process. (3) Permit tribes to have a "first right of purchase" option when individually held trust land or non-Indian held land within a reservation is offered for sale, (4) Amend section 5 of the Indian Reorganization Act to pro- vide for an increased appropriation of funds for land acquisition, particularly for those tribes which are presently landless. (5) Amend sections 1465 and 1495 of title 25 of the U.S. Code to delete the provisions of Indian Financing Act funds which restricts the use of purchase of lands outside the exterior bound- aries of Indian country unless the purchaser was the owner of trust or restricted interests in the land prior to purchase. (6) Amend the "excess property" provisions of the Federal Property and Administrative Services Act 40 U.S.C. section 471, et. seq., to specifically provide for transfers of excess property, whether located within or without the exterior boundaries of tribal lands, to the Bureau of Indian Affairs for use by Indian tribes. (7) Mandate that the Secretary of Interior establish and make public specific criteria for accepting Indian lands in trust. Such criteria should include a presumption that lands owned in fee by a tribe or to be acquired in fee shall be accepted in trust unless the Secretary sets forth in writing sufficient reasons for refusal. (8) INIandate that the Executive examine and report to the Con- gress on the feasibility of consolidating the Indian land acquisi- tion loan program administered by the Department of Agricul- ture and the BIA loan programs into one Federal-Indian loan program designed exclusively for providing funds for tribal land consolidation plans. Land should also not be required as collateral for such loans. To provide solutions for the debilitating problems presented by the fractionated ownership of heirship lands, Congress enact legislation which would : (1) Amend the U.S. Code to enable tribal governments to adopt comprehensive plans for resolving fractionated heirsliip land problems. Such plans could include the following procedures: (a) Guaranteeing that tribes have first right to purchase when heirship lands are sold. (h) Authorizing the holders of a majority of the owner- ship interests in a trust, or restricted allotment, to determine sale of land. (r) Enactment of tribal laws governing descent and distri- bution of fractionated heirship lands to allow purchase, at the time of probate of estates, undivided interest in allot- 92-185—77 21 314 ments in heirship status which have reached an unreasonably small fraction ; restriction of inheritance of trusts or restricted allotments to members of the tribe ; or restriction of inheri- tance to a life estate with a remainder in the tribe, but only upon payment of fair market value compensation to the prospective heir. {d) Condemnation with fair compensation by the tnbe ot lands in heirship status which have reached unreasonable small fractions. (2) Repeal statutes which are obstacles to exchanges and/or sales between owners of allotment interests. (3) Reform partitioning laws to facilitate partitioning of allot- ment interests held by heirs, if partitioning is in the best interest of their heirs and the tribe. (4) Transfer the probate authority over trust property now held by the Secretary of the Interior to the tribe. (5) "Amend the special laws regarding the Five Civilized Tribes and the Osage to merge them with the general laws gov- erning the other tribes, at least with respect to jurisdiction over smallestates ($5,000 or less) and with respect to their capacity to write laws governing the descent and distribution of property. Agriculture Indian lands and natural resources are located on over 200 reserva- tions in 26 States and encompass in excess of 50 million acres. About 129 reservations have Indian populations of at least 200 and land of at least 1,000 acres. Indian lands include: (1) 5.8 million acres of commercial forest land, which is about 1 percent of the Nation's commercial forest land and includes about 38 jbillion board-feet of timber, or ly^ percent of the Nation's total; (2) 44 million acres of rangeland, or about 5 per- cent of the Nation's total; (3) about 2.5 million acres of cropland, or 1 percent of the Nation's total.^* Indian range and croplands are valuable resources that provide Indian tribes and individual Indians with considerable income and job opportunities. In 1975, 26,189 Indian families obtained all or part of their livelihood from livestock and farming activities. But the potential yield from agricultural activity is not nearly achieved. ^^ According to 1975 BIA statistics, the gross value of agricultural products grown on Indian range and croplands amounted to $394 mil- lion. Of this amount, Indians received $123 million or less than one- third of the total value of range and farm products grown on Indian lands. Non-Indians, on the other hand, received $271 million or 69 percent of the total value of agricultural products produced on Indian lands.'^ It has been estimated that the gross value of agricultural products grown on Indian range and croplands could be doubled if these re- 24 ppnort to thp Committfe on Interior and Insnlar Affairs. U.S. Senate. "Indian Natii- ril Resources — Onportnnities for Improved Manasrement and Increased Productivity", GAO, A"?. IS. 1075 'R n t8fl.SK n. 1. T^T^ T?T,\ in its 1075 Land Use Inventory and Production Record (Form 50-1) classified 3."? n.fil .017 acres of Indian land as open grazing. " -n--.-, BTA Form .50-1. 28 1975 BIA Form 50-1. 315 sources were under luore intense manatrement. Xumerous impediments to full achievement of the economic potential of Indian agricultural resources have been identified. These include problems relating to fractionated land ownership patterns, lack of access to capital funds, insufficient training in resource management, deficiencies in lease terms to both Indians and non-Indians, as well as nonenforcement of lease provisions by the BIA, and lack of general economic infrastruc- ture such as roads, communications, etc. Land acquisition and con- solidation and general economic infrastructure are dealt with else- where in this chapter. This section focuses only on issues related to farming and livestock production, and leasing of land for thesa purposes. FARMING OF IXDIAX LANDS Imjyortance of Indian Agriculture According to 1974 BIA statistics. 2.440.172 acres, or 4.7 percent of all Indian trust land, were classified as agricultural. Of the almost 214 million acres, 29 percent were irrigated and 71 percent were dry farm. "While the size of Indian agricultural lands seems small, the value of products grown was considerable : $o39.919.780. However. 73 percent of this value was produced by non-Indian operators. Part I of the 50-1 form shows that non-Indian operators usually cultivate 63 percent of all Indian agricultural lands, while Indian operators cultivate 29 percent and S percent remains idle.-' TABLE l.-INDIAN AGRICULTURAL LANDS USED BY INDIAN AND NON-INDIAN OPERATORS AND GROSS VALUE PRODUCT, 1974 i Type of land Dry farm Irrigated Gross value, Gross return Operator Acres product per acre Acres Gross value, product Gross returir per acre Indian 564,630 $38,643,144 $68 70,998 Non-Indian 936,649 111,617,105 119 247,047 $24, 433, 041 134,891,467 $340 464 1 Figures based on calculations drawn from BIA 1974 Land Use inventory and Production Record (form TABLE 2.-GR0SS VALUE OF PRODUCTS GROWN ON INDIAN LANDS, 19751 50-1).. Total Indian Agriculture value operated Non-lndiaiT operated Indian/total gross value (percent) Cultivated rovi( crops $95,283,812 $16,324,145 $78,959,667 5.8 Smallgrains 115,188,919 26,411,411 88,777,508 22.* Forage, hay, and tame pasture 65,101,563 21,962,302 43,139,261 33.7 Horticultural and garden crops 37,612,722 5,154,232 32,458,490 13.7 Native hay 886,811 667,675 219,136 75. S Grazing 78,845,106 52,170,523 27,674,583 65.5 Total 393,918,933 122,690,288 271,228,645 31.0 ■ Figures derived from the 1975 BIA Land Use Inventory and Production Record (form 50-1). -"Calculations haspd on 1074 BIA 50-1 form, part I, for total Indian land in agriculture- nnd use by Indian or non-Indian. Part VII for value of pi'oduets prrown. Tliere is a dis- crepancy in the total amount of land classified as ajiricultural and the figures identif.ving its use. Eight percent of Indian-owned land classified as agricultural is idle, amounts to 195.21.S acres. This figure, plus the average figures in the following table leave a discrep* ancy of 425,635 acres classified as agricultural but unaccounted for in these statistics. 316 Task Force Number Seven on economic development examined 32 reservations in depth. For the 10 reservations with the most agricul- tural land, tliey found that land use and economic return patterns correspond fully to that in the above tablets One is immediately struck biy the fact that the non-Indian operator not only cultivates the bulk -of Indian lands, but that his gross return per acre is higher. The preceding table provides a breakdown of major crops and their A^alue grown by Indians and non-Indians on Indian land in 1975. As shoAvn by this'table, in 1975, Indians derived only 31 percent of the total gross value of the cash crops grown on Indian owned lands. Non- Indians derived the other 69 percent. There are numerous explanations for this phenomena. According to a 1974 GAO study at Fort Hall, the chief reason for not participat- ing in high-dollar yield farming (irrigated) was that Indians (1) could not obtain credit; (2) lacked a knowledge of farming tech- nology.2^ But this is only part of the explanation. The other lies in the problem of land ownership patterns brought about by the individual allotment of Indian lands and by policy decisions of the BIA in years past which favored leasing out of In(iian land rather than stimula- tions of large-scale tribal development. Tribal Enter'pinses Some tribes have taken the initiative to break this lease cycle and develop their own tribally operated farm enterprises. The value of these enterprises is that not only do they provide a greater rate of re- turn to the Indian community from their land, they also provide much needed jobs. At Crow Creek, the tribe has brought 1,500 acres under dry farm cultivation, principally alfalfa and winter wheat. It obtained funds for land consolidation through FmHA and enterprise funds from EDA. The tribe reported that these funds were still insufficient for complete development of the farm. Eventually, the tribe hopes to have three units of 2,000 acres each under cultivation. Fifteen hundred acres would be irrigated. It is estimated that eight people would be employed full-time on the 60,000 acres, and many more through in- direct supportive industries. In 1975, t]ie farm enterprise had a net profit of $48,000 or $35 an acre. If this is compared to the gross cash rent per acre ($16.89) usually received in South Dakota, probable return would be more than doubled.^" The Umatilla farm enterprise manages the Umatilla tribal farm lands. The Umatilla obtained a loan from the Revolving Loan Fund to purchase land to start the farm. Income derived from the land is used to pay for land purchase loans, spraying, fertilizer, and related expenses. Through 1976, the tribe had 1,360 acres of land under cultiva- tion which they hope to expand to 6,000 acres. The farm enterprise has generated a net income which exceeds the average net income re- ceived by Umatilla lessors. 28 Task Force No. 7, p. 33. "^ Report to the Subcommittee on Indian Affairs Committee on Interior and Insular Affairs, TT.S. Senate, "I^and Leases on tlie Fort Hall Indian Reservation in Idaho", GAO; M.nv 31, 1974; pp. 16-17. '^ Farm Real Estate Market, Developments Economic Research Service, USDA, July 1975, p. 34. 317 TABLE 3.— TRIBAL ENTERPRISE INCOME VERSUS LEASING INCOME Year Total net in- come from tribal farm enterprise Ne income per acre Average in- come received by Umatilla lessor 197^ $77,357 $58. 60 46.53 52.87 $21. 13 1974 61,431 37.12 197') 71, 910 34.08 Source: Superintendent, Umatilla Agency, Pendleton, Greg., 1976. There are other examples of tribal agricultural development which did not fall within our survey. Among the most exciting develop- ments is the Quechan hypodroponic farm. It demonstrates how the tribe marshaled the necessary grants and loans to buy land and put it into production using the latest techniques available. Indian Rangelands Rangelands and livestock operations are an important part of the Indian economy. The 1975 GAO report on Indian Natural Resources estimated 44 million acres existed on Indian reservations and found that Indian ranchers used about 90 percent of this land.^^ The Bureau of Indian Affairs in its 1975 Land Use Inventory reported some 15,074 Indian ranching operations accounted for livestock products valued at $74.8 million. Conservation and Overgrazing "', Despite the high amount of reported acreage classified as open grazing there are serious concerns regarding range management. Ac- cording to the 1975 GAO study : An estimated 13 million acres, or 30 percent of Indian rangeland are not being properly managed and are in poor condition because (1) the range has been overgrazed, (2) range improvements have not been effectively nsed or maintained, and (3) limited use has been made of training and education programs. These problems have existed on some reservations for years. Short- term, stopgap measures have been taken to relieve the situation but the long- term problems still remain. An important factor hindering the effective manage- ment of Indian rangelands on some reservations is the conflict between tribal and individual Indian desires with respect to accepted range management practices. (1975 GAO report, pt. 1, p. 31). About 60 percent of the Indian rangeland is located in two arid States — Arizona and New Mexico. Eangeland is classified in four categories: excellent, good, fair, or poor — ^based on the comparison of the present amount and kind of forage with that which the range could optimally produce. GAO sur- veyed seven sample reservations and found conditions ranging from Northern Cheyenne Reservation with 85 percent classed as excellent to Ute Mountain with 68 percent fair to poor and Papago with 99 percent so classified. With respect to the Papago, they reported findings that the range was grazed to double its capacity and attributed this partially to the 81 1975 GAO report, pt. 1, p. 30. 318 failure of the tribe to adopt a grazing permit system."- They further conchided that with proper range management, beef production at Papago could be doubled.^^ The report noted that the Bureau has a trust responsibility for the management and protection of rangeland resources and cited the Indian Reorganization Act of 1931 as directing the Secretary of the Interior to restrict the number of livestock grazed on Indian range units to its estimated carrying capacity. The report further noted that for more than 40 years the Bureau has been telling the tribe that its rangeland is severely overgrazed but in that time neither tlie tribe nor the Bureau has imposed any control. In explanation of this. GAO states that "the foremost cause of overgi-azing is a con- flict between good range management practices and Indian culture and tradition" which place a high value on animal ownership and opera- tion without restriction.^* LEASING The General Allotment Act of 1887 divided tribally held land into individual Indian allotments. In the years following the passage of the Act, support grew for the concept of allowing Indians to lease their lands. The first general Indian land leasing statute, enacted in 1891, placed a restraint on Indian leasing by permitting Indians to lease their land only if they were unable to farm it "by reason of age or other disability." In theor3\ it was felt that if an allottee had the physical or mental capability to cultivate an allotment, the leasing of snch an allotment should not be permitted. In practice, however, the leasing of allotted land fell prey to the influence of white settlers, tind leasing often became the rule rather than the exception on some reservations. Even at the time allotments were made to Indian owners their size was frequently inadequate to support an individnal agricultural effort. Plots of 160 acres in sparsely vegetated rangelands were understood by western cattlemen to be inadequate for ranching activities. Plots of 40 or 80 acres on irrigable land may have been viable in the late 1800's, but not imtil properly irrigated, and funds for such purposes were slow in coming. The first consequence of this fractionation of ownership out of the tribes into individual tracts was a mammoth loss of land out of Indian ownership into non-Indian hands. Between 1887 and 1934, approxi- matelv two-thirds or 90 million acres of the Indian land base passed out of Indian ownership into non-Indian hands. A secondary con- sequeiice of the individualization of Indian landholdings was the additional fractionation of individual ownership among succeeding heirs. The final rosnlt of tins fraf^tionation of ownorsliin into small narcels pud multiple ownership is that maior portions of lands classified as Indian owned are. in fact, under the dominion and control of non-In- dians by virtue of their having been leased out, T"^neconomic size plots, lack of capital, and lack of technical assistance force Indian owners to '- TMrl., p. S4. ^ Ibid., rP- 34. 319 lease their lands to others. These facts were known to the Bureau of Indian Affairs in 1934 and were known by Congress. The Indian Re- organization Act of 1934, was designed to remedy at least a part of this problem by authorizing acquisition of hands and establishing a revolving loan fund. However, grossly inadequate sums were appro- priated for land acquisition, the revolving loan fund quickly became fully committed, and the problems of heirship and land leasing continued unabated. In recent vears, two steps have been taken to try to improve the In- dian credit position. The Indian Finance Act of 1974 ^^ was enacted authorizing loans and providing grants for a number of purposes and the law governing the Farmers Home Administration loan program was amended to provide for loans to Indian tribes for acquisition of lands.^® However, utilization of the revolving loan fund at BIA has not been effectively directed at resolution of the land question and the loan program of FmHA has serious impediments. More importantly, neither of these credit facilities has reached to the problem of exces- sive leasing of lands to non-Indians. The leasing program has, in many instances, tied up tribal and in- dividually owned trust land for years and today poses serious obstacles to tribal initiatives toward economic development and self-sufficiency. In its 1975 Land Use Inventory, the BIA estimated that Indian owned resources directly supported some 120,000 jobs by both Indian and non-Indian. This amounts to 20 percent of the entire Indian service population recognized by the BIA. A long step toward self-sufficiency would be taken if all of these jobs were held by Indians — the ownei-s of the resource. There are numerous problems with the leasing program aside from its adverse impact on tribal initiative to develop their own agricultural enterprises. The most serious of these problems are the inequitable lease rates that are obtaiiied. Task Force Number Seven has provided de- tailed documentation of this problem relating case studies from two specific reservations, the Crow Tribe in Montana and Fort Hall in Idaho, to illustrate their point. Gro'iD Competent Leasing A competent lease is a 5- or 10-year lease of allotted agricultural land in which the rent is prepaid for the entire term of the lease. For a given piece of land, the first o-j-ear period was paid in a lump sum when the land first went into competent lease status. Subsequently, once a year the current lease is canceled and a new one written, with payment of rent for the last year of the new lease discounted to the present. De- cember is the most usual time to cancel and rewrite the leases. The BIA's role is recording of leases. As long as the allotment is owned by five or fcAver people, a competent lease is valid. If an allottee or a group of owners wishes to regain control of its land, ho must wait 5 or 10 years. For poor people, this can be a long wait. Further, for many of the leases, and particularly for rangeland, even after the 5- year period, there would be only one potential lessor. INIany of the ^ 25 U.S.C. sec. 1451 et seq, 3«25 U.S.C. sees. 488-492. 320 lessors are larire operators who lease land from many Indians. Many own fee-patented land interspersed among Indian allotments wliich tliev lease. In June 1975, 868,281 acres of 1,205,926 acres of allotted land were under competent lease. This is 72 percent of the allotted land. Such leasing constitutes a partial alienation of allotted land. Com- petent leases can be used as collateral for loans, while trust land can- not. This feature depends upon the existence of an assignment clause in the lease. Since Indians use competent leases as collateral for loans, such leases provide a method of financing, without which, Indians might otherwise feel forced to sell their lands. Land Leases on the Fort Hall Indian Reservation Since 1973, a controversy has raged at Fort Hall over a finding by the Economic Research Associates of Los Angeles, consultants for the tribe's overall economic development plan, required by EDA. They found that Fort Hall Indians failed to get equitable income for all agricultural land leased to non-Indian tenants. Typical nonreserva- tion leases in the Fort Hall area averaged 35 percent of gross crop value, while Fort Hall leases were equivalent to about 2.3 percent of gross crop value. In response to this study and a tribal request for an investigation, GAO conducted an investigation and also found there was a large dis- parity in lease rates, particularly in ii-rigated reservation land. Irri- gated reservation land was found to rent at an average of $15.36 com- pared to $75.41 for high quality irrigated nonreservation land. Dry farm acreage rentals were approximately equal for reservation/non- reservation lands, but a substantial disparity was also found to exist for pasture rental. These findings of GAO were softened, however, by a finding that certain intangibles caused non-Indian lessors to be less willing to pay the same rent as for non-Indian land, but these intangi- bles were not fully identified.^^ In 1975, another firm. Farm Management Co., did another evalua- tion of leasing at Fort Hall. They calculated the value of cash leases for both high quality and average quality nonreservation land, thus taking into consideration the tangible costs raised by GAO, and com- pared them to the value of cash leases for the same quality land on the reservation. TABLE 4.— VALUE OF CASH LEASES" Nonreservation land Reservation land Higli quality Average quality High quality Average quality Potatoes Grain Potatoes Grain Potatoes Grain Potatoes Grain Value of cash lease $64-$80 $40-$60 $26-$39 $9-$19 $35 $35 $35 $35 Average 56- 70 17- 24 35 35 ' Western Farm Management Co., "Analysis of Present Leasing Practices" and the effect on rental rates of tribal agri- cultural land, funded by EDA, Technical Assistance Grant No. 07-6-01534, pp. 52-53. ^ Report to the Suhcommittee on Indian Affairs, Committee on Interior and Insular Affairs. P.S. Senate, "Land Leases on the Fort Hall Indian Reservation In Idaho," GAO May 31. 1974. 321 Since potatoes are normally rotated every other year with a grain crop, the average cash rent is $56-$70 on the better soils and $17-$2'4 on the sandier soils. After the -first reports of ERA and GAO, the tribal council increased the standard rent per acre from an average of $15 to $35 an acre. However, this fixed fee allows the better lands to stay in farming at a bargain price while the poorer or marginal lands were abandoned because of lower yields, greater fertilizer ex- pense and difficulty in irrigating this type of soil. Using standard lease rates for the entire reservation has caused the tribe to receive less rent than it should for better farmland and the poorer land is left idle. In 1974, the Shoshone-Bannock Tribes at Fort Hall commissioned an additional comprehensive study by an economist, Mr. Jack Peter- son, under a HUD 701 planning grant. This study published in 1974, and updated in 1976, confirms the continued inequitable leasing practices.^^ Leasing practices have provided Indian landowners with very sub- standard returns for the following reasons : Fixed rate rentals on Indian land are substantially less than on non-Indian land. Indian fixed rate rentals are preferred over crop share rental. Indian lessors have no recourse when leases are violated. Leases are for lengthy periods of time. Lease regulations for proper conservation practices are unen- forceable. What is the alternative to leasing? On several of the sample reser- vations, particularly Umatilla and Crow Creek, tribes have consoli- dated tracts of trust land and are farming it. This would solve a multitude of problems. First, efficient-size units could be created. Second, the tribe has better access to capital and technical assistance than do individuals. Third, returns are usually higher than leasing and are directly received by the tribe. These criticisms related equally to farm and grazing lands. The lack of readily available capital and the lack of a sound policy di- rected toward land consolidation, acquisition, and termination of these present lease pi-ograms combine to thwart tribal development and economic self-sufficiency. Credit and Technical Assistance Aside from fractionated land ownership, the major obstacles to development of a viable Indian farm economy are inadequate credit and lack of necessary technical assistance. The Indian farm operator has three major sources of credit: commercial banks. Farmers Home Administration, and the BIA Revolving Loan Fund. Both commercial banks and the FHA require acceptable collateral, and as GAO reported they were reluctant to accept Indian land as collateral because of its trust status. In review- ing new BIA revolving loans made during fiscal year 1975, it appears that the bulk of individual loans were made for purposes other than ^ .Taok, Ppterson. Futures, A Comprehensive Plan for the Shoshone-Bannock Tribe, funded by a 701 Planning Grant, HUD, 1974, p. 14. 322 agriculture. Only 16 percent went for agriculture and livestock activities. (See table 5.) Table 5. — Distributwn hy typo of new BIA revolving loans to individuals^ fiscal year 1975 Type of loan Percent Agriculture 15. 9 Farming 8.4 Livestock 7.6 Business enterprise 22. 7 Consumer credit 11. 3 Ediication 0. 4 Fisheries ^ 1. 3 Land 5. 8 Housing 34.6 Refinancing 7.9 Total percent 99.9 Total $15, 315, 532 Technical Assistance The technical assistance and agricultural advisory services available to Indian farmers is supplied through a cooperative BIA/USDA eifort. Under a memorandum of imderstanding between the Extension Service and the BIA, the Extension Service provides leadership and direct assistance to State extension serAdces in planning, conducting, and evaluating extension programs in those States where the BIA has contracts with State extension serA-ices. Eunds for this work are trans- ferred directly from the BIA to the State extension services. However. TJSDA officials have complained that the actual amount of technical assistance and advice provided to Indian operators has declined in recent years because the BIA is reluctant to seek increased appropriations. The BIA extension budget has remained small and virtually constant since 1971. Table 6. — Extension Service BIA funds directed to State extension service 1971 $1, 748, 331 1972 1, 877. 2.32 1973 1.732, 737 1974 1, 695. 020 1975 1, 709, 633 Source : USDA. The nature of fiscal funding makes ]6b security uncertain for exten- sion agents. This affects the quality of personnel that work in the pro- gram. For most, it is a temporary job. USDA would prefer direct appropriations. This would increase the level of funding and promote job security. Ultimately, the funds should be given directly to the tribe so that they may contract with those who will supply the best tech- nical assistance. EECOMMEISTDATTOXS Tlie Commission recommends that: 1. Tribes be encouraged to develop comprehensive plans for long- term economic development premised on maximum Indian utilization 323 of Indian-owned resources. Recommendations for appropriation of grant moneys to tribes for planning purposes appears in chapters 5 and 6 of this report. 2. Congress enact legislation which will facilitate tribes in acquir- ing consolidated land areas sufficient to support efficient farm and cattle industries, Specifically, Congress : a. Amend existing Federal laws relating to leasing of indi- vidual trust allotments to provide that tribes have a "first right of refusal" on leasing of such lands. b. Elsewhere in this chapter it is recommended that Congress establish a special fund for the purpose of aiding tribes in pro- grams of land acquisition and consolidation. In addition to use of these funds for outright acquisition of ownership, tribes be authorized to draw from this fund in order to acquire lease- hold rights in individual allotments. Such authorization must be designed to accommodate the special credit needs of individual allottees which cause them to annually renegotiate what purport to be long term leases. 3. The Bureau of Indian Aifairs revise its policies regarding leas- ing of agricultural lands in the following respects : a. Rental terms correspond to general lease terms of com- parable grade lands hekl by non-Indians in the surrounding area. Where practicable rentals should be premised on percentage of crop values rather than fixed rates per acre. b. Leases contain strong conservation requirements witli penalty provisions adequate to assure compliance by lessees. c. Leased properties be inspected as frequently as necessary to insure compliance with lease terms. d. Tribes be encouraged to contract with the BIA to perform inspection and enforcement duties. 4. The BIA and the tribes develop long-term range management plans to realize the potential benefits of a renewed, high producing grazing range. These plans provide for: (1) range and soil inventories to determine current range capacity; (2) timetables for adjusting herd size to capacity; (3) grazing permit systems; (4) development and prudent use of range improvements to raise the carrying capacity; and (5) education programs to promote good range management practices. In addition, these plans evaluate the short term economic impact which diminishment of herds will cause to individual Indians during the period necessary to regenerate such rangelands. A program simi- lar to the past "Soil Bank*' program should be instituted to pi'ovide incentive to individuals to reduce their livestock holdings. 5. The Bureau of Indian Aft'airs implement programs necessary to provide technical assistance and training to tribal i^eople to aid them in adopting modern farming and range management. Spe- cifically, the BIA : a. Review its funding requests for support of State extension Services and seek additional funds for this purpose as api^oar necessary. b. Develop vocational education programs to be offered at the reservation level to train adults and students at the secondary 324 educational level in techniques in atrricultnre, range man- agement, and other subjects relevant to natural resource development. 6. Congress hold oversight hearings to ascertain the adequacy of the current funding level of the revolving loan fund for purposes of agricultural and livestock development. Timber economic potential for tribal development of tijiber resources Timber has the potential for being one of the most important Indian resources for development of reservation economies. I^nlike mineral resources, timber is a renewable resource, and, therefore, can con- tribute indefinitely to tribal revenues. Excluding Alaska, the total standing timber inventory in Indian country is estimated at 40 billion boaid-feet. Indian forestry lands are the largest private holding of forested and commercial forest land in the United States. One-fourth of all Indian lands are forested, and 10 percent of all Indian lands are com- mercial forest lands.'^ Timber contributes from 25 to 100 percent of tribal revenues for 57 reservations; more than 80 percent on 11 of these reservations. Income from stumpage (standing trees) alone for 1974 was $73 million. Nevertheless, at present the potential yield of Indian timber lands is not being achieved. It is estimated that the $73 million derived from stumpage sales was 20% less than could have been obtained if harvesting had matched the annual allowable cut (AAC). In some areas harvesting on Indian lands was 65 to 75 percent below annual allowable cut. It is estimated that between 1970 and 1974 the dollar loss to tribes from insufficient logging was $25,486,767. This problem is compounded by the fact that the BIA has failed to implement reforestation and precommercial thinning programs for many tribal forests. (See discussion, infra.) If the AAC is not adjusted for those tribal forests affected, it will inevitably (and soon) deplete the resource. Ironically, the BIA, by its inflexibility, fails in both re- spects by setting the AAC too low for some forests and too high for others. An examination of the situation on the Quinault Reservation in the State of Washington provides a classic insight into the revenue poten- tial of timber to Indian people, and a textbook study of the problems of maximizing timber revenues and providing sound forest manage- ment. The annual allowable cut on the Quinault Reservation is 200 mil- lion board-feet. Actual harvest in 1975 was only 122 million board-feet. The Quinault estimate that a properly managed forestiy program would yield for stumpage alone an income of $22 million in 1976 prices for the Quinault Tribe. Development of tribal forestry management ca- pabilities, logging operations, sawmills, and manufacturing plants us- ing sawmill products would generate 1.800 jobs in the timber industry alone. It is estimated that for eveiy job in the timber industry, 1.8 2» TT.S. Congr.. Hoias*^. "Department of the Interior and Relaterl Agencies Appropriations for 1977." hearina; before a subcommittee of tlie Committe on Appropriations, part 6, Mar. 3, 1976, p. 1.50 (94th Cong., 2d sess.). 325 jobs are establislied in related industries. Maximization of the Quinault timber industry would thus translate to some 5.360 jobs throughout, the Quinault region, clearly benefiting both Indian and non-Indian alike. Total value of economic activity generated would be in excess of $270 million. These figures and the fact that timber is a renewable- resource indicate the tremendous potential for economic development that Indian forestiy offers. However, unless proper forest management techniques are instituted immediately, the long-range potential of this most important tribal resource is in serious jeopardy. In a special study submitted to tho Commission, the Quinault tribal forest manager predicts that timber harvests on that reservation could plummet from 140 to 160 million board-feet to 5 to 20 million board-feet by 1986." BIA MAXAGEMEXT OF IXDIAX FORESTRY*^ The trust responsibility of the Federal Government for Indian forest resources is administered through the BIA forestry- program. GAO reports have established the fact that the trust responsibility has not been diligently and effectiveh^ carried out. "Indian forest lands are managed less intensely than the Government manages its own na- tional forest properties and compare even more poorly with manage- ment of industrial tree farms," Chief Forester Wilcox stated in a 1970 interagency memo. This observation is clearly supported in a field study reported in a 197r» GAO report comparing forestry manage- ment practices at the Wenatcliee S'ational Foi'est witli those on the neighboring Yakima Reservation in the State of Washington. A 1973 GAO study stated that the Bureau does not adequately : 1. Determine annual harvest volumes ; 2. Update timber management plans for reforestation and stand improvement : 3. Obtain information required to minimize the impact of timber harvesting and road construction on other forest resources. A 1975 GAO report to the Senate Interior Committee ^- reiterated the same points of the 1973 report, as well as others, concluding that the Bureau has not adequately : 1. Increased the volume of timber harvested to the level per- mitted under the principles of sustained yield. 2. Improved the effectiveness of precommercial thinning and reforestation programs. 3. Performed commercial thinning. 4. Harvested adequate levels of dead and dying timber. 5. Established specific goals and action plans for identifying and accomplishing needed forest management work. 6. ^lade substantial effort to acquire the personnel and funds needed to full}' manage the Indian forest. Thinning and reforestation are essential to the maintenance of commercial forest. In 1973, "thinning accomplishments for all res- ^oTim LaFrancp. "A C.tfp Study of Land Man.T^pmpnt and Land Tse PTanninsr on Quinault Indian Reservation", a special report to Task Force No. 1, American Indian Policv Review Commission, Washington. D.C. Summer 1070. "GAO. "Indian Natural Resources: Onportur.ities f^r Imirovefl :Nran.T'Pment r *^ Ibid., at pp. 9, 19, 22, 24. , . 1 1 . . . - . 326 ervations eqiialod only about ?> percent of the total amount of pre- 'oommercial thinnins; needed (backlog) and the reforestation accomplished equalled only about 4 percent of reforestation need," (GAO study.) The BIA has 173,365 acres needing reforestation and 738,593 acres needing timber stand improvement. This backlog is ;OTowing at a rate of 7,000 acres per year.*^ The i975 GAO report criticizes the Bureau programs for harvesting of dead and dying timber in the following terms : On the Colville Reservation, 47 MBF, which is equal to 39% of the AAC harvest, dies annually and on Yakima, 12 million MBF dies annually. The Bureau has no program for systematically harvesting this timber, and therefore, a large volume is not harvested and deteriorates to the point where it can no longer be used. The actual economic loss is not projected, but clearly it is significant. Harvest management under BIA does not follow basic principles of revenue maximization. Contrary to the most respected principles of good forest economics, the Bureau policy favors equal annual harvests irrespective of market prices. Logically, more timber should be harvested when prices are high, less when they are low as long as one attains within a single decade the optimal timber cut for forest growth as determined by a computerized timber management program. Added to the fact that the BIA sets equal timber cuts irrespective of market prices, the BIA is unable to accurately calculate the "annual allowable cut" because of its reliance on two old and simple formulas to determine what cut is "allowable." The formulas make no use of economic concepts such as the rate of interest, transportation costs, the price of timber rela- tive to other goods, or the value of land in alternative uses. Instead, the BIA used a predicted future growth rate of the forest. But, the BIA's predicted rates for cutover land are invariably higher than actual rates because they are predicated on the assumption that the Bureau will provide expert management. Yet, by its own admission during appropriation hearings, BIA is not completing the forest management tasks it has set for itself. Another outdated BIA practice is the method for adjusting stump- age prices. During the timber sale period, changes in lumber prices should, by normal competition, cause stumpage prices to change. The BIA tries to adjust the stumpage prices using the "Western Wood Products Lumber Price Index. The error in this procedure is that liunber scale and log scale are not the same any more. Technical progress and changing utilization standards have enabled mills to obtain more lumber per log than formerly. Currently, lumber scale is 1.3 to 1.5 times smaller than log scale. If the lumJ3er price index rises by $10 there is an increase in revenue of $13 per thousand log scale to the mill if we take the 1.3 value. But under the BIA approach the stumpage adjustment formula figures the 50-50 split between mill and tribe against the $10 lumber price index. So the mill receives an additional $8, the tribe an additional $5, rather than the tribe and the mill each receiving $6.50. " Task Force No. 7, final report, AIPRC, at p. 54. 327 DE^-ELOPilEXT OF TRIBALLY MAXAGED FORESTRY PROGRAMS The economic potential of Indian timber resources is very encour- aging. Indeed, it is estimated that tribes with medium to large stands of timljer have the capacity to achieve economic self-sufficiency based on their timber resources alone for, as cannot be overemphasized, tim- ber is a renewable resource. With proper management and with the development of related industry, it can supply an economic base to certain tribes for the indefinite future. In addition, maximization of the Indian timber potential will benefit nearby non-Indian commu- nities through related industries as well as the Nation through assuring continued supply of a resource wliich is in growing short supply'. A major problem confronting the development of proper forest man- agement programs is that of individualized ownership of Indian lands, and particularly the problems associated with fractionated heirship interests. This problem is more prevalent at the Quinault Reservation than others. Individual parcels of trust land are subject to long-term timber contracts which do not require reforestation or conservation practices, and which do not assure a proper return on the value of the timber harvested. In matters of fractionated heirship, a further complication arises from the fact that many heirs issued to the BIA open-ended powers-of-attorney which authorize the BIA to enter into leases of their lands for the indefinite future. Many of these powers-of-attorney are quite old, the number of heirs is sub- stantial, and terminating these documents by having the original grantor rescind them is difficult if not near impossible. The need to develop a comprehensive forestry management program for Indian country is obvious. It is vitally important that this pro- gram center around tribal control and management. BIA administra- tion is hampered by lack of goals and objectives in forestry develop- ment. This deficiency indicates that the BIA has no cohesive approacli to forestrv^ management. It is also not in the position to manage all the tribes' resources within their varied ecological contexts. Only the tribes should determine their goals and only the tribes can oversee the exploitation of all reservation resources with due consideration for external efforts. The BIA does not have the direct interest in the enhancement of tribal resources which tribal members have. Due to the poor reputation of BIA forestry and the lack of opportunity for advancement, it is almost impossible to recruit highly qualified per- sonnel to Bureau forestry management. A vicious circle of poor per- formance results is perpetuating tremendous losses for tribes as timJ^er resource owners which results in perpetuating a dependency economy. Training in more technical aspects of forestry development could be offerofi in tribal or intertrilial technical schools and community col- leges. Tribal members must be encouraged to concentrate on scientific and technical subjects of immediate use to the tribe when they pursue advanced degrees. The tribes need to develop a timber industry, not just a logging operation. This would include growing timber as well as development of processing facilities, but would have to recosnize the importance of maintaining competition for Indian timber if dollar benefits are to be 328 maximized. Total restriction of timber operations to tribal enterprises can cause a decrease in stumpage value which, in turn, could result in lowering of income to tribes. In addition, denial of access to private enterprises may result in cutting off Indian access to private expertise. A special task force should be formed comprised of experts in the areas of forest management to evaluate the present BIA forest man- agement program and develop a modernized comprehensive forest management program for the future use of the Bureau and the tribes. The members of this task force should be drawn from the public and private sectors of the forestry industry and should include timber managers of Indian tribes and the BIA. RECOMMENDATIONS The, Com/mission reccrmmieiids that: 1. In order to clarify the legal authority for Indian tribes to regu- late, manage, and sell their own tribal resources. Congress amend : 25 U.S.C. 406— Sale of Timber on Lands Held in Trust ; and 25 U.S.C. 407 — Sale of Timber on Unallotted Lands. 25 U.S.C. ^06 Sale of Timber on Lands Held Under Trust Amend sec. 406(a) by inserting a period after Interior in line 3 and striking the remainder of the sentence and the fol- lowing sentence. Amend sec. 406 by adding a new paragraph at the end of the section as follows ; (g) Bonds for performance and reclamation pursuant to contracts under this section may be required by the Secretary or the owner of the timber in accordance witli provisions under Sec. 407. 25 U.S.C. J,07 Sale of Timher on Unallotted Lafnds Amend sec. 407 by designating the present section as para- graph (a) . In line one after "sold" inseit "by authority of the tribal council with approval of the Secretary of Interior". In line four insert a period after Interior and delete the re- mainder of the paragraph. At the end of the paragraph in- sert a new sentence : "Regulation of timber sales under this section and sec. 406 may be superseded by regulation pursu- ant to tribal constitution, charter, or ordinance, provided that such regulation is not inconsistent with the provisions of this section." Amend sec. 407 by adding a new paragraph (c) to read as follows : (c) Nothing in this section shall prevent the adoption hy the tribal council of regulations for the management of natural resources within reservation, and after such regulations have been approved by the Sec- retary of the Interior they shall be controlling and regulations by the Secretary of the Interior under this section which may be inconsistent therewith shall no longer be applicable. 2. To resolve the difficult problems in management in the continuing waste of Indian timber resources occurring because of tlie fractionated heirship pattern of ownership of forested allotments Congress amend existing Federal law relating to : 329 (1) Sale of timber on trust allotments to provide a first option to the tribes. (2) Authority to the tribe to acquire existing powers of at- torneys now held by the BIA upon a showing that the affected allotted lands have been included in a comprehensive tribal forest management plan. 3. The BIA make a study of its existing forest management prac- tices and regulations. A special task force be formed comprised of experts in the areas of forest management to evaluate the present BIA forest management program and develop a modernized comprehensive forest management program for the future use of the Bureau and the tribes. The members of this task force should be drawn from the public and private sectors of the forestry industry and should include timber managers of Indian tribes and the BIA. 4. In order to provide for reforestation and regeneration of the mil- lions of acres of Indian forest which have been clearcut by private companies under sales contracts approved by the BIA, the Congress appropriate funds to enable those tribes affected to undertake the necessary regeneration and reforestation programs. 5. Congress enact legislation to permit tribes to contract with pri- vate enterprises or the Forest Service for timber management. Water Eesoukces The survival of Indian tribes as economic units in the arid and semiarid Western States requires the protection and enforcement of their water rights. The importance of water to the Indians has been well stated by Senator Kennedy : (to) American Indians, land and water have always led the list of those mat- ters deemed essential for both present livelihood and future survival. For Indi- ans know that any threats to or dimimition of their land and water rights may constitute threats to their very existence." A formidable body of law favorable to the American Indian people has been developed which, if properly administered and applied, will protect the Indians against divestiture of their water rights. In the past, however, these rights have been neglected and violated, thereby stifling tribal goals of self-sufficiency through economic development.*' INDIAN WATER RIGHTS Indian water rights were recognized by the Supreme Court in the landmark case of Winters v. United States, from which emanates the body of law commonly referred to as the Winters doctrine.*** That doctrine holds that the Indians have prior and paramount rights to all water resources which arise upon, border, traverse, or underlie a res- ervation in the amount necessary to satisfy the present as well as future needs of the Indian reservations. 1^ Vol. 122, Con?. Rec, p. S6339, May 3, 1976. 94th Cong., 2(1 sess. ^ For a good discussion of Indian water rights, see Educational Journal, Institute for Indian Law, vol. 2, Nos. 5, 7, and 8. "The Indian Water Wars" by the Development of Steve Nlekeson. « Winters v. United States, 207 U.S. 564 (1908). 92-185 — 77- 330 Winters rights are owned by the Indian tribes and should, therefore, be distino-uished from other federally reserved rights. The only role of the United States is that of a trustee for the tribe. This was precisely the point of the decision in Wmters v. U.S. the lead case on the subject : The reservation was a part of a very much larger tract which the Indians had the right to occupy and use and which was adetpiate for the habits and wants of a nomadic and uncivilized people. It was the policy of the Government, it was the dps;ire of the Indians, to change those habits and to become a pastor and civilized people. If they should become such the original tract was too extensive, but a smaller tract would be inadequate without a change of conditions. The lands were arid and, without irrigation, were practicall.v value-less. And yet, it is contended, the means of irrigation were deliberately given up by the Indians and deliberately accepted by the Government. The contention that these rights were given up by the Indians was firmly rejected by the Court. In applying the Winters doctrine, it is important to note that rights to the use of water in the Western States are interests in real property, having all the components of a freehold estate. The doctrine of "prior appro])riation" governs water use in most Western States. The extent of tlie water right is determined by the amount of water actually put to use and the date when that use first commenced. The significance of the Wmters doctrine is that neither of these criteria are applicable to the determination of Indian water rights. Not only do tlieir rights predate those of the non-Indian users, they are open-ended rights not limited to amounts already put to use, but rather are dependent upon the future needs of the tribes. The priority date of the Indians' Winters doctrine rights to the use of water is of vital importance. For example, on the tributary streams of the Upper Missouri River Basin, such as the Milk River, the Big Horn River, the Tongue River, and others, the demands for water far exceed the available supply, thereby resulting in a gross overappropri- ation of th-ose streams. Consequently, the priority rights of the Black- fe^et, the Fort Peck, the Wind River, the Crow, and the Northern Cheyenne Indian Tribes in the States of Wyoming and Montana are gravely imperiled unless their fidl priorities are protected. The priority date of the Indian water rights may depend on wheth- er the reservation was created by treaty or Executive order. Where a reservation was established by treaty, as in the Winters case, the tribes impliedly reserved the right to all the water necessary to fully develop their reservations, and arguably these rights date from time imme- morial. A different situation may exist with respect to Executive order reservations, where title was returned from the United States to the Indians. For these reservations, the priority dates governing the In- dians' Winters doctrine water rights are determined as of the date the reservation was created. It should be noted, however, that Winters rights for treaty and Executive order reservations have equal dignity and are not subject to appropriation by the State. In the years following the Winters case, many cases arose in which the Circuit Courts of xVppeal applied the Winters doctrine for the purpose of protecting the Indians' water rights. In Conrad Invest- ment Co. V. United States., the Ninth Circuit Court of Appeals relied on that doctrine as its basis for holding that the Blackfeet Tribe in Montana possessed water rights in a river bordering its reservation in 331 amounts sufficient to meet their future needs of irrigation and other useful purposes.^^ That same court reached a similar conclusion in Vnitecl States v. Walker River Irrigation District^ involviuii- Indian chaims to a stream which flowed across its reservation.*^ In that case, the court emphasized the following : The power of the Government to reserve * * * water (to Indian tribes) and thus exempt (such waters) from subsequent appropriation by others is beyond debate/' Courts liave also established the criteria governing the amount of Avater which may be reserved by Indian tribes. In United States v. Ahtanum Irngation Distnct^ the Court of Ajopeals for the Ninth Circuit addressed the question of the amount of waters reserved and held the amount to be that which is necessary to meet the Indians' "present and future water requirements"-.'^° The Supreme Court elab- orated upon this general rule in the more recent and vitally important case oi Arizona v. California:'^ In addition to reaffirming the 'Winters doctrine, the Court in that case held that the standard of measurement to be used in determining the Indians' water rights should be the amount of water necessary to * * * irrigate all the practicably irri- gable acreage on the reservations." ^^ Despite this well-established body of law favorable to the Indian, there is a continual challenge to their Winters rights by the Federal Government, the States, corporate and municipal entities, and non- Indian landowners. Great political concern and hostility toward In- dians and their rights is frequently engendered as Indians assert their legal claim against State and local water interests. VIOLATIONS OF INDIAN" WATER RIGHTS A formidable body of law protects the Indians' water rights, and proper enforcement and application of the law should preserve these rights. However, as evidenced by the following cases, the Interior and Justice Departments have often in the past been lax in enforcement of these rights and have not infrequently adopted adverse positions, contributing to the erosion of the Indians' water rights. For example, in Colvllle v. Walton, et al, a case initiated in 1970 by the Colville Confederated Tribes of Washington, the Justice and In- terior Departments intervened and adopted a position adverse to that of the Colvilles. In essence, the Department claims the Secretary of the Interior has exclusive jurisdiction over the water resources on the Colville Indian Reservation and therefore has the right to control all allocation of water within the I'eservation and apparently the duty to allocate the water to non-Indian users on the same basis as it is al- located to Indian users. The authority relied upon for the claimed "exclusive jurisdiction" is 25 U.S.C. sec. 381. That statute states that the Secretary of the Interior may, when water is required for irriga- tion on an Indian reservation, ]3romulgate rules and regulations "to secure a just and equal distribution" of the available water among the *' Conrad Investment Co. v. United States, 161 Fed. 829 (9th cir. 190S). ■•^ United States v. Walker River Irrigation District, 104 F. 2d 334 (9th cir. 1939) " Ibid., at 336. ^'' United States v. Ahtanvm Irrigation District, 236 F. 2d 321, 326 (9th cir 1956) " Arizona v. California, 373 0.2 546 (1963). s= Ibid., p. 600. 332 ^''Indkni.s residing upon such reservation^ [Emphasis supplied.] This case has now been pending for some 7 years. Recently Justice asked and the Court granted a 1-year extension of time, thus delaying even further the efforts of the tribe to adojit their own water code. The Justice Department has now asserted tlie same argument in the Bel Bay case now pending in the western district of the State of Washington. The Government is also asserting paramount authority over Indian water rights in the Upper Missouri Basin in matters involving sale of water. This captured the attention of Congress which held compre- hensive hearings regarding efforts of the Secretary of the Interior and the Corps of Engineers to invade the Indians' water rights." In all, the Secretary of the Interior has entered into contracts for the sale of approximately 712,000 acre-feet of water of the Big Horn River and its major tributary, the Wind River. Without those water re- sources, both the Crow and the Wind River Tribes will be denied any possibility of economic growth. The Rights Are Legally Adequate to Meet the Future Requirements of the Indian Communities In the above cited Ahtanu?n decision involving the Winters rights of the Yakima Indian Nation, the issue arose as to the method to which there should be adherence in measuring the Indian rights. On the- subject, the Court said : This brings us to a discussion of the question of quantum of waters reserved.. It is obvious that the quantum is not measured by the use being made at the- time the treaty reservation was made.^ These succinct terms used by the Court in this most pertinent declaration : The reservation was not merely for present but for future use. Any other- construction of the rule in the Winters case would be wholly unreasonable. It was then that the Court in^these terms reiterated and reaffirmed this basic tenet of the Winters doctrine, as enunciated in the carriei" Conrad decision: "The lands within these reservations are dry and arid, and require the diversion of waters from the streams to make them productive and suitable for agriculture, stock raising, and domestic purposes. What amount of wat^- will be required for these purposes may not be determined with absolute accuracy at this time ; but the policy of the Government to reserve wliatever water of Birch Creek may he reasonably necessary, not only for present uses, but for future requirements, is clearly within the terms of the treaties as construed by the Supreme Court in the Winters case." ^^ Tliere was thus established the important criteria which contem- plates a supply of water for the Indian needs to meet their then and future water requirements. In 1960, those criteria, which had been applied to treaty reservations in Winters, Conrad, and Ahtanum, were intensely and extensively reviewed by the Special Master appointed '^ Hearing on the sale of water from Upper Missouri River Basin by the Ferteral Govern- ment for the development of energy, before the Subcommittee on Energy liesonrces and Water Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st. sess., pt. 1 at p. 10 (1975, hereafter referred to as Sale of Indian Water). « United States v. Ahtanmn Irrigation District, HSC. F. I'd 321, 326 (CA 9 — 195G). 55 Conrad Investment Co. v. United States. 101 Fed. 829, 832 (CA 9 — 1908). 333 by the Supreme Court. On the nature, measure, and extent of Indian Winters rights to the use of water, the Court had this to say in approv- ing the report of the Special ^Master in regard to the Wmte7's doctrine and its application to future water requirements : We also agree with the Special Master's conclusion as to the quantity of water intended to be reseiTed. * * * tlie water was intended to satisfy the future as well as the present needs of the Indian Reservations * * *." There have thus been established by judicial precedent these aspects of great importance in the application of the concepts of the Indians' Winter-^ doctrine rights to the use of water : (a) They underscore the great need for water; (b) They underscore that need is for present and future Indian requirements; and (c) They underscore the intention that the Indian reservations are to be continuing, viable, economic comnuinities utilizing the necessarA' quantities of water to achieve those precise and most desirable ends. liidian and State Rehitions Involving Indian Winters Doctrine ' Rights: The Akin Decision The Al'in decision epitomizes the conflicts of interest that pervades Pederal prote reservations in 11 States. This was approxi- mately 7-lo percent of the ITnited States identified coal resources of 1.581 billion tons.^^ In a report by the Federal Trade Commission that Indian lands have the potential of containing more than one-tenth of the United States currently minable coal reserves.'"'*^ A brief review -of the relative importance of Indian minerals to j^roduction in the United States would also prove helpful. Data gathered from a USGS survey shows that production of coal on Indian lands in 1974 was 1.9 percent of all United States production which made up 35.8 per- cent of all production on Federal and Indian lands The value of pro- duction of oil and gas on Indian lands was 4.4 percent of the total United States production. If off-shore leases are excluded, the pro- duction value rises to 13.6 percent of the total production value on all Federal and Indian lands. Aside from the major Indian energy re- sources, there are a variety of other minerals of considerable value on Indian lands. For example, phosphate production on Indian lands ivas 4.9 percent of the total United States production which amounted to 35.4 percent on Federal and Indian lands. In 1974, 100 percent of the Federal and Indian land uraiiium production was on Indian lands. It must be noted that of all mining on Federal and Indian lands, production from Indian held resources was 15.6 of the total.*'^ INEQUITABLE MINERAL LEASES The present policies on the leasing of Indian resources leave tribes with inequitable agreements. These agreements ensure that revenues received from mineral resources are only a fraction of what they should be. Measured by international standards, the leases negotiated on behalf of Indians are among the poorest agreements ever made.®^ DEFICIENCIES IN CONTRACTS One of the major deficiencies in Indian lease agreements is that royalty rates are usually too low and fixed in dollars per unit of pro- duction of the resources which, of course, ignores increases in value rather than percentage of value, which increases income as minerals increase in value. In four out of the five Navajo coal leases consum- mated between 1957 and 1968, the royalty was fixed between $0.1.5- ^O.?)7o a ton. Since then, the average value per ton of coal rose from $4.67 (1968) to $18.75 (1975) .^^ There is no simple way to change these inequitable terms because there are no adjustment clauses in the leases, and the leases are for 10 years "and as long hereafter as minerals are «Task Force No. 7 final renort. ATPRC. Washinston, D.C, Tiilv 1976. p. 47. eaFTC, Bureau of Competition, 1975 "Report to the Federal Trade Commissinu on Min- eral Lea.-^ing Indian I^ands," staff report, Jame.'; Dick, primary author. October in7.'5. ^ Supra, note 1. n. 47. 8' David N. Smith and Louis T. Wells, Negotiating Third World Mineral Agreements : Promises at Prologue. Cambridge Mass. ; F.allinser Publishing Co. (1975). '"Executive Office of the President, Council on Wage and Price Stabilitv, A studv of Coal Prices, a staflf report, IMar. IG. 1976, p. '37. 340 produced in paying quantities/' The royalty is arguably fixed for the' life of the deposit. Some tribes have attempted to negotiate royalty rates in spite of the Blxi written leases. The Crow Tribe was successful in forcing the rate of coal from the originally offered 11 cents per ton to 17.5 cents per ton. As a general principle, in a line of inflation, a. fixed price contract for any commodity is a poor contract. Even if the relative price of a commodity does not rise in relation to all other goods over time, the general rise in the price level will hurt tribes with fixed rates per ton rather than percentages of value.^° In a review of 15 coal leases from 3 tribes, 12 had fixed royalty rates while only 3 had royalty rates based on the selling price of the coal. Although USGS,. in 1971, changed its policy of calculating royalties based in fixed amounts per ton to percent of selling price, they approved royalty rates for leases at 17.5 cents per ton without recommending percentage royalty rates.^^ COAL LEASE ACEEAGE LIMITATION In reviewing 15 leases, it was discovered that 10 were in excess of the 2,560-acre limitation mandated by 25 CFR § 171.9(b) and §172.13. Decisions on size of leases must be determined by the tribes. It is noted, that for coal development to be profitable the size of the lease has tO' be greater than 2,560 acres.^^ It appears that a review of the acre limitation must be done. ENFORCEMENT OF TROVISION OF CONTRACTS The BIA and USGS are charged with the responsibilities of en- forcing Indian mineral lease provisions. There is considerable docu- mentation that such enforcement is not taking place. There has been a failure to require full compliance with information provisions of exploration permits. The USGS has the responsibility of perform- ing gas and oil well site inspections for lease compliance. The inspec- tions include drilling, producing, abandonment, and meter proving inspections. It has been found that only a very small percentage of required inspections is being carried out.'^^ It has been found that significant amounts of royalty payments were being received late. In fact, of the survey that was performed, only one tribe was properly enforcing its lease provisions adequately, A comparison of royalty payments on the Osage, Uintah and Ouray, and Jicarilla Reservations for a 3 month period in 1974 follows : Payments Late Percent Reservation examined payments late Osage Uintah and Ouray Jicarilla 4,824 13 0.3 60 42 70.0 60 28 46.7 ■"• Ron Trosper. American Indian Mineral Agreements : Literature Search and Rpform Proposals. A paper prepared for Task Force No. 7 — Reservation and Resource Development, American Indian Policy Review Commission. Washington, D.C.. May, 1976. •^U.S. Comp. Gen., report to Senate Committee on Interior and Insular Affairs, Indian Natural Resources — Part II Coal, Oil, Gas, Washington, D.C. : GAO, Mar. 31, 1976. " Ibid., p. 24. ^Ibid., p. 31. 341 The loss to the tribes is sioiiificant. For example, in a review of •20 producing oil and gas leases done over a 14-nionth period on one reservation, it was revealed that over $270,000 in royalty payments were 1 to 11 months late. If the 1.5 percent late charge provision were enforced, it would mean that the tribe would receive an additional $6,000. That $270,000 invested for 1 year at a conservative G percent rate would have produced $16,200 additional income to the tribe.'* Enforcement of contracts requires reviews and audits of lessees. These requirements are not being performed. USGS regulations require lessees to submit reports which include reports of operations listins: various actions. These reports, for the most part, are not being submitted. ^Manv postaudits are not being performed. In one area of the review, only 5 percent of the past audits were being performed. The benefits of such audits are significant. In that same area, over a 2-year period, an additional $798,000 was collected through such audits." The functions of reviewing and auditing require auditors and reviewers, which requires funds to be expended. In view of the fact that significant benefits can be received witli adequate reviews and audits, it would be appropriate to put greater effort in this area. Enforcement of lease provisions for hiring are to a large extent not •done. The reason is tliat the tribes and the BIA are unable to deter- mine the effectiveness of Indian preference in hiring provisions. Only in a few cases were there procedures which required the lessee to report on their employment of Indians in the Indian community. If procedures were established for enforcement of preference provisions, the tribes and BIA would better be able to determine the effectiveness ■of such provisions. Indeed, where such procedures were established, there was substantial Indian employment in the minerals industry, as was the case on the Navajo Nation where enforcement procedures had been established. In that situation of the 1,313 people who were em- ployed in the coal industry, 712 wei'e Indian. The total annual earn- ings, in that situation, were approximated at $8.2 million. In other cases, because accurate figures on the number of people employed Avere not available, it was not possible to determine the number of Indians employed in the mineral industry; however, indications were that Indian employment in the industry was minimal."'^ ENFORCEMENT OF PROVISIONS FOR RECLAMATION The tribes, BIA, State and local agencies, and USGS are all involved in reclamation activities on Indian lands. Monitoring of reclamation on Indian lands activities is the responsibility of USGS The responsibilities of USGS in this area are not outlined in the CFR, although they are discussed in various sections. There are no formal agreements among the different organizations to coordinate these activities. The result is that each organization is operating independently.'^ "MV.id., p. 32. ■"• Ibifl., p. 34. "« Uiid., p. 18. " Ibid., p. 37. 342 EXVIROXMEXTAL COXTOOLS ARK TOO WKAK Indians aro unable to prevent environmental deo-radation resnltine^^e\- opment Administration's Indian programs to the narrow responsibili- ties of the Office of Minority Business Enterprise. Together they have provided planning, technical and management assistance, capital, in- frastructure and promotional efforts. These programs have undoubt- edly made some progress toward economic development on reserva- tions, but have failed far short of the effort required. The progi\ams promoting enterprise development are not examined in detail because several recent reports adequately cover the problems which exist in this area.^" Many of the problems encountered directly or indirectly bv these program's have also been dealt with elsewhere in this report. These relate to the reservation economic environment and Indian control, the inadequacy and constraints on capital pro- vided and categorical nature of some of the programs themselves. Many of these programs have attempted to promote a particular type of development on reservations. The failures encountered reflect less on the potential for reservation development than on the approaches attempted.^^- An attempt to industrialize the reservations began in 1955 when BIA initiated a program to attract industry to locate on or near In- dian reservations. The objective was to provide Indians with employ- ment opportunities. In setting up the industries the non-Indian usually supplied the management and working capital, and the reser- vation supplied the labor and sometimes the physical capital, and the BIA gave on-the-job (OTJ) subsidies. In 1968*^Sorkin evaluated this program and found that 137 enterprises had been attracted, 27 had closed down and 110 were still operating. The labor force was equally divided between Indian (4,112) and non-Indian (4,375). Most of the plants were established during 1964-68 when the Vietnam War had accelerated the demand for electronics parts. Sorkin found that one out of five failed because of inexperienced management and insufficient capital, input which non-Indians were supposed to provide.^^^ With the data available from the BIA we have not been able to adequately trace the results of the program from 1968 to 1975. However, in interviews with the directors of the business development program, the response was that plants were still folding and for the same reasons : inexperi- enced management and undercapitalization. The BIA's recently established Indian business grant program, es- tablished under the Indian Finance Act, has been discussed earlier under capital. The capital grants available under this program may al- leviate some of the problems discussed earlier for the establishment of small Indian enterprises. Generally, however, the program must be viewed as inadequate in scope and subject to the same constraints as other BIA development programs. ^^ GAO report, "Improving Federally Assisted Business Development on Indian Reserva- tions," June 27, 1975. i'^ "Minority Enterprise and Allied Problems of Small Business," hearings before the Subcommittee on SEA Oversight and Minority Enterprise of the Committee on Small Business, House of Representatives, July 8, 9, 10, 1975. "3 Sorkin, A., American Indians and Federal Aid, Washington, D.C., Brookings Institu- tion, 1971, p. 118. 365 In 1966 the Economic Development Administration replaced the Area Kedevelopment Administration and continued the attempt to bolster local depressed economies. Since that time EDA has spent $231 million or $23 million annually on Indian programs. EDA's program is much more flexible than BIA's program of business development. EDA has invested in public works such as water, sewers, and industrial parks. Business loans, plamiing grants, and technical assistance are also available. This distribution of funding was as follows : Percent Industrial parks, $17,126,113 7 Other public works, $173.926,993 75 Business loans, $16,509.204 7 Planning grants, $14,359,463 6 Technical assistance, $9,447,965 4 How EDA decides to distribute its funds is the subject of a special task force report which is contained in the appendix of Task Force Number Seven's report.^^* Some EDA projects have more of an impact in terms of creating income and employment than others. If we consider the industrial park program, only 45 companies have located in the 42 parks which have a total acreage of 3,487, These 45 firms employ 1,200 Indians, The cost of creating these jobs was $14,000 per job not including busi- ness loans or M'age subsidies. Although it appears excessive, it is not if one considers the average industry cost of $25,000 per job. Of the 32 reservations in the sample, five had industrial parks, but not occupants. It has long been recommended that industries which use the natural resources be promoted. EDA has recently begun to examine the char- acteristics of the plants that fail and they found that they had the highest success rate M'ith tribally owned resource based industries. Ho]:)efully, EDA will continue to collect statistics so that this pattern can be verified. "Wlien the composition of reservation enterprises was analyzed, we found that most of the enterprises were commercial, again with an emphasis on toitrism and recreation. Among the 32 reservations, there was a total of 81 tribally owned enterprises; 36 percent were based on the natural resources, 58 percent were commercial or construction es- tablishments and only 5 percent manufacturing a nonresource prod- uct. Sixty-three percent of all tribal enterprises were established with the help of EDA and BIA loans and grants. At the same time there were 21 major non-Indian enterprises: 47.6 percent were based on a natural resource : 14.3 percent were commercial ; and 38.1 percent manu- factured a product not based on reservation resources. RECOMMENDATION The Commission recommends that: Congress hold oversight hearings with the Economic Development Administration, Small Business Administration, Office of Minority Business Enterprise, Department of Labor, Bureau of Indian Affairs, and Department of Transportation to determine what the obstacles are to successful business development in and near Indian communities. ^* Task Force No. 7, Final Report, AIPRC, Washington, D.C., July 1976, p. 149. CHAPTEK EIGHT COMMUNITY SERVICES No recitation of cold statistics can adequately portray the hnman misery and suffering experienced by the majority of Indian and Alaskan Native peoples on reservations and in numerous villages in Alaska. However, when the impact of these statistics is measured against the unfulfilled hopes and aspirations of scores of Indians which have been cut short by unnecessary illnesses and deaths, and against the alarmingly high number of Indian families which have been devas- tated by social disintegration caused by mental illness and alcoholism, then such conditions become real and meaningful. (367) CONTENTS Page Introduction 371 General data 371 Alcoholism 373 Mental health 374 The responsibility 375 The balance upset 376 The health care system 378 Few facilities, poor facilities 378 Contract care 379 IHS staffing 380 IHS budget 382 Indian involvement in IHS 383 The IHS patient 385 Alternate health care sources 385 Housing 386 Speci fie problems : Regional and cultural variations 389 Universal problems 390 Resolving the dilemma 392 Other considerations 393 Recommendations 393 Water, sewer, and sanitation facilities 393 Transportation and access to health care 394 Indian nutrition 395 The Indian Health Care Improvement Act (Public Law 94-437) 396 General recommendations 399 A. Facilities 399 B. Staffing 399 C. Budget and management 400 D. Housing 400 E. Transportation 400 F. Nutrition 400 G. Alcoholism and drug abuse 401 Education 401 Introduction 401 Background 401 Historical 402 BIA and education 405 The off-reservation boarding school 407 U.S. Office of Education 409 The State role: Positive or negative? 411 Coalition of Indian-controlled school boards 413 Achieving tribal control 414 Beyond secondary schools 414 General recommendations 416 Off-reservation boarding schools 418 Scholarship 418 Higher education 418 Welfare 419 Federal-State and State-local assistance 419 How BIA general assistance fits in 421 Child placement 422 Recommendations 422 Child placement 423 (369) CHAPTER EIGHT COMMUNITY SERVICES Introduction' The unique position of many Indians as State residents living on or near Indian reservations under Federal jurisdiction has compli- cated U.S.-Indian relations in many ways. Nowhere, however, has the relationshi]) between the governed and the government been more muddled or more neglected over the years than in the social serv- ices — health, education, and welfare. Indians have shorter life spans and are far more susceptible to some disease than the general population, but Federal health care policy has been weak and inconsistent. The tribes lack the resources to pro- vide health care and non-Indian local governments often refuse to provide it on the grounds that it is a Federal responsibility. Indians receive less opportunity for formal education than the gen- eral population and Federal education programs are not appropri- ately directed to remedy this situation. Though the States are willing to accept Federal money for the education of Indian children they are iniwilling to use those Federal dollars to develop remedial pro- grams specifically designed to meet the needs of Indian children. Indians have lower average incomes and higlier unemployment rates than the general population, but must contend with an ill-defined, and at times conflicting system of welfare programs on four loA^els — Fed- eral, Federal-State, State-local, and tribal. "While a number of State and Federal agencies are authorized to deliver services to Indians, in practice Indians do not receive many of the services from these agen- cies of disputes over where the primary responsibility lies. Conflict- ing eligibility i^equirements further exacerbate the problem. The problems of Federal vs. State and local responsibility for In- dian social services would be less critical if either had sufficient funds to contribute significantly to health, education, and welfare programs. But even Federal programs, set up for the sole purpose of providing Indians with social services, must operate with insufficient funding, inadequate staffs, and second rate facilities. General Data The physical health of the American Indian is considerably lower than that of the general population. Indians suffer from a high in- cidence of preventable, environmentally caused disease and from nutri- tion-related illnesses such as malnutrition, obesity, tooth decay and maternal and infant sickness. Treatment of both categories of dis- ease requires detection and foUowup procedures which are especially difficult in the highly dispersed Indian population. (371) 372 In addition to physical disease, the lingering and cumulative ef- fects of forced displacement, cultural conflict, and high rate of un- employment all contribute to a high level of mental health problems. This is evidenced by excessive use of alcohol and drugs, and by re- lated social problems such as child neglect, broken homes, and violent and accidental death. Data on nonreservation Indians is incomplete, but death and dis- ease statistics for reservation Indians are accurate and current.* They show that in 1970, Indian life expectancy was 65 years, com- pared with the national average of 71 years. Indian infant deaths in 1971 were 23.8 per 1,000, compared with 19.2 in the general popula- tion. In the same year, Indian deaths from diarrheal disease were at a rate four times higher than national averages. Deaths from tuber- culosis were 3.7 times higher, from cirrhosis 2.9 times higher, from accidents 2.9 times higher, from homicide 2.4 times, from congential malformations 1.5, from suicide, 1.7, from certain diseases of early infancy 1.5, influenza and jDneumonia 1.4 and from diabetes 1.3. One of the most prevalent diseases is otitis media, a painful swell- ing within the ear. It generally occurs in children Avith a history of untreated respiratory infections. When drainage is obstructed by swelling, pressure may rupture the eardrum, causing partial hearing loss and life-threatening complications which can only be remedied by surgery and may require hearing aids. For example, at the Crown- i:)oint Navajo health service unit, 2,533 school age children were screened in 1972. Of these, 34 children had hearing loss from otitis media, 41 had both eardrums perforated, 106 had one eardrum per- forated and 11 had a growth on the bone structure behind the ear or in the middle ear.^ Although each case required surgery or rehabilitation, no coordi- nated action was taken by the screening center to get the children to a treatment facility. The chief of otolaryngology for the Navajo area estimated that in 1973 about 6,000 Navajos, or about 5 percent, needed ear surgery. There and elsewheie there is a current backlog of cases needing such surgery, A General Accounting Office survey team said after visiting Crownpoint in 1973 that at the late ear surgery was being performed — four a week — it would take 30 years to treat the backlog,^ Respiratory diseases such as pneumonia and influenza also hit In- dians harder than the general population — causing death at a rate 2.4 times higher in 1972. The same year, the mortality rate for Indians from bronchitis, emphysema and asthma was 5.4 times higher than national averages. Tuberculosis, caused by overcrowding and poor ventilation, occurs 10 times as often in Indians as in all other U.S. races. Even when drug therapy is applied, followup control pro- grams arc not sufficient to prevent reactivation. Five of the health care units surveyed by a GAO survey team in 1973 were not pro- viding such control treatment. Two health care units were unable to provide treatment for about 1,100 Indians who had positive reactions to tuberculosis tests. At the Crow Agency unit in 1972, about 25 per- *The data in this section are for the years 1970-1975. 1 "Procress and Problems in Providing Health Services to Indians," Comp. Gen. of the United States, Mar. 11, 1974, p. 26. = Ibid., p. 29. 373 cent of the 271 Indians in the control program were overdue for serv- ices. At Pine Ridge, about 8 percent of the 405 Indians in the control program had not received treatment and other services recjuired in a Government tubei'culosis control manual.^ The story is similar with other diseases. The Indian venereal disease rate is higher than the national average. From 10G2 to 1971. the syph- ilis incidence rate increased by 117.6 percent and gonorrhea by 79.4 percent. Control systems are weak at the health care units and no effort is made to trace and keep records of contacts and to follow up with treatment. Maternal and infant health are poor among Indians. Indian infants from 1 to 12 months old die at more than twice the rate of the gen- eral population. Many die unnecessarily of such diseases as pneumonia, meningitis, gastroejiteritis. and accidental asphyxiation l^ecause moth- ers are unaljle to reach facilities for regular prenatal and postnatal visits. Malnutrition among pregnant Indian women may be associated with menta] retardation among Indian children. Some studies * sug- gest that malnutrition decreases the normal number of brain cells pro- duced in an infant and can adversely affect development at everj' stage. Even with rehabilitation, such early growth failures are probably irreversible. Alcoholism The most severe and widespread health problem among Indians today is alcoholism and its medical consequence, cirrhosis of the liver. The social problems caused by alcoholism create an environment from whicli alcohol often seems the only escape. Alcoholism atl'ects not just the alcoholics, but the total Indian society and family units. A 1970 report on Indian alcoholism made this statement on the widespread effects of the disease : Alcoholism is a costly proposition in every sense of the word. Personal health may be impaired by cirrhosis and its complications, neuro-psychiatric disorders and nutritional deficiencies. The majority of accidents, especially fatal ones, are associated with alcohol, as are nearly all homicides, assaults, suicides and suicide attempts among Indians. The loss of personal freedom and productivity, the breakup of families, the hardship and humiliation involved are considerable, although not easily measured.^ At the six health care units surveyed by GAO in 1973, an estimated 60 percent of the caseload was directly or indirectly related to alcohol. During 1972, 1,097 patients made 2,637 visits for episodic and habitual drinking, alcoholic addiction, intoxication, and delirium tremens. Dur- ing the year, 181 patients were diagnosed three or more times for these conditions. On one central Plains reservation.^ 70 percent of the population over 15 years of age reported that they drank — 82 percent of the men and 55 percent of the women. Children were reported beginning drinking » Ibid.,, pp. 41, 42. * Stanley M. Gam, "Biological Correlates of Malnutrition In Man," Nutrition, Growth and Development of North American Children. Washington. D.C. : U.S. Government Print- ing Office. DHEW Publication No. (NIH) 72.26. 1972, pp. 129-1.38. - U.S. Department of HEW, Public Health Service, Indian Health Service, "Alcoholism, ^^^^^ Priority Health Problem", a report of the IHS Task Force on Alcoholism, 1969- 19(0. « "Report on Alcoholism and Drug Abuse", Task Force No. 11, American Indian Policv Review Commission, Aug. 1976, p. 16. 374 between the ages of 9 and 17. In the age group from 15 to 19, 60 per- cent of the boys and 40 percent of the girls reported drmknig. In a small Great Lakes community, only seven of the 74 persons over 18 totally abstained. . „ n- The National Institute of Mental Health reports that, m 1973, 7a to 80 percent of Indian suicides were alcohol related, two or three times the national rate. The National Center for Health Statistics reports that, in 1972, suicide was one of the three fastest rising causes of death among Indians." In the Indian Health Service ambulatory patient care repoit for 1975, there were 84 cases of battered children on first visits, 32 of which w^ere alcohol-related.^ Similar to alcoholism is the prevalence of drug abuse. In the first three months of 1974 alone, the number of drug abuse cases in Indian mental health programs jumped by almost 50 percent. The primary responsibility for prevention, education, and rehabili- tation of alcohol and drug users has been with the National Institute on Alcoholism and Alcohol Abuse. NIAAA has been funding and ad- ministering most alcoholism programs since 1972. In 1976 NIAAA was supporting 99 reservation programs at a cost of $12 million and 12 training programs at a cost of $1.6 million. NIAAA's role was changed to one of funding only in 1976 when Congress passed S. 3184. This act authorized the Indian Health Serv- ice to take over administration of "mature" alcoholism projects be- ginning in fiscal 1978.^ The change is viewed as a step in the right direction by the National Indian Health Board on Alcoholism and Drug Abuse w^hich will provide consultation and technical assistance to make alcohol projects more relevant to Indians. Mental Health Manifestations of emotional disturbance among Indians were first reported in 1928 by Brookings Institute investigators" who found "excessive use of alcohol, high accident rates, child abandonment, and poor social and school adjustments." As late as 1955, a Public Health Service report revealed that there were no facilities for psychiatric care of Indians beyond institutionalization in asylums," and that the few medical social workers serving Indians "were not sufficient in number to meet minimum requirements." Moreover, these social workers were limited to dealing with tuberculosis patients, mothers and children with problems of physical health, and the aged, handi- capped or abandoned. The 1955 Public Health Service report failed to deal adequately with the problem of mental health. A National Institute of Mental Health team visited the same sample reservations, but "because of the shortage of time, it w^as not possible to collect and develop quantitative data" ^% according to the PHS report. Only two pages of the 327-page report were devoted to mental health problems, excessive alcohol con- 7 lUd., p. 16. 8 IMd., p. 17. Alcoholism report, July 9, 1976, vol. IV, No. 18. M "The Problem of Indian Administration," Baltimore : Johns Hopkins Press, 1928 11 Some Indians were removed to St. Elizabeth's Hospital in Washington, D.C.. where many remained until their death. Public Health Service Publication No. 531, Feb. 11, 1957, p. 151. ^ IMd., p. 151. 375 sumption, liiffli accident and violent act rates, child abandonment and desertion. "There appears to be especially intense frustration", the psychiatrists reported. it was not until 1965 that a pilot mental health project was started at Pine Ridge with NIMH funding. Later, a headquarters was estab- lished at Albuquerque to provide clinical research training and con- sultative and administrative resources to mental health sections in reservation service areas. Severe understaffing keeps every service area from providing more than a fraction of the needed services. Because a comprehensive assess- ment of needs has not been made, services are delivered on a random basis with limited resources and funds. For instance, in the Portland area a model suicide prevention pro- gram was established. The program relies on the combined help of Indian counselors, community health representatives, social workers, VISTA volunteers, and Indian Health Service mental health staff. Although the program relies on the combined help of Indian volun- teers and staff, as well as non-Indian professionals, it still lacks the necessary tools to cope with the unique and varied cultural patterns of Indian tribes. These patterns, which vary from tribe to tribe, require special education and orientation even for mental health professionals. Availability of direct psychiatric therapy for Indians in acute crisis or with chronic emotional problems is severely limited. There are few psychiatrists and their skills are needed elsewhere in broad programs of prevention, support, and education for the community as a whole. Social workers and psychiatric nurses are equally scarce. Few area programs have enough people with the right skills to train interested Indians to take on some of the community work. A large portion of the workload in reservation mental health clinics must be carried by the paraprofessional mental health worker. With- out them, the programs could not operate at all. After brief training at Desert Willow Training Center in Arizona, they return to their communities to counsel, handle crises, provide transportation, provide administrative and liaison support and handle almost any other prob- lems that arise. A definite need exists for local training programs with locally applicable courses to turn out more such paraprofessionals.^^'' The Eesponsibijlity Improving the health of the Indian population, and especially that portion on reservations, would be a formidable job for even the best equipped, funded, and managed health care system. The Indian Health Service and its predecessors, Avhich were as- signed to provide health care to reservation Indians, were not equip- ped for the job. Even today the Indian Health Service has a severe shortage, inadequate facilities, limited funds, a backlog of unmet i2u For example, three University of Colorado Medical Center psychiatric residents recently set up a program of mental health consultation to the Crow and Northern Chey- enne Reservations in Montana. They worked with hospital staff at Crow Agency • with community health nurses and workers ; with community agencies such as VISTA and the ^^^'s'^'^P^'c'??*^'] Youth Corps ; with personnel at the BIA School at Busbv ; and with the staff at St. Labre s School for Indian Children at Ashland. The psychiatric consultants avoidecl giving direct patient care and focused Instead on increaslng'personnel sensitivitv to patients and bringing staff together to work out their own problems. "Mental Health consultation on Indian Reservations", Innovations, Palo Alto, Calif., American Institutes for Research in Collaboration with NIMH, vol. 3. No. 3, Fall, 1976, pp. 26-27. 376 medical services, a ])oor budget and management system. Moreover, the Service is dependent upon groups which are insufficiently support- ive, including other Federal agencies. State and local governments and private health contractors. Additionally, the Indian Health Service has functions beyond health care. It is responsible for sanitary installations, construction of facilities, fostering Indian involvement in the health care system and coordinating alternate health resources for nonreservation Indians. For more than 50 yeai-s. Congress has been passing legislation and making appropriations designed to raise the level of Indian health, to improve the environment on leservations, and to involve Indians in the Federal health care system. Agencies working directly or indirectly to achieve those goals started with onlv the Department of the Interior, but grew to include Housing, Agriculture, and Health, Education, and Welfare. Appro- priations for free Federal health care for Indians increased from $40,000 in 1911 to some $274 million in 1076. Congress has funded countless studies to measure the level of Indian health, to determine needs and to evaluate the Federal health care system. Congress has heard Indians and Indian Plealth Service ad- ministrators testify frequently on the cultural relevance of Federal health care, on ways to involve more Indians in it and on means to impro^'e it. Tot. in 1977, the Indian Health Ser\'ice remains underfunded and understaffed. It lacks the flexibility to meet diversified tribal needs. Its non-Indian focus is culturally irrelevant. Indian involvement in the system, even indirectly, is minimal. Federal agencies fail to sup- port and serve it properly. Congress acknowledges that it has a special trust responsibility for Indian health, but it maintains a health care system which is not suf- ficiently funded to be the primary provider it professes to be, and with rnre exception serves only Indians who live on reservations. Other Indians must rely on State and local health pro^dders which are unreliable Ix'cause of the dispute over where the primary responsibility lies. The most recent Indian health legislation, Public Law 94-437, is not a design for comprehensive health care, even though it declares that its policy is "to effect the national goal of providing the highest possible health status to Indians." The Act does, however, provide for upgrading of the Federal health care system. It partially addresses poor environmental conditions, acknowledges the health needs of non- reservation Iridians and outlines a program for the training and education of Indian health professionals. A number of Federal agencies will be involved in implementing the Act's provisions. The Act holds the possibility for an improvement in Indian health, but fundnig will not be available until fiscal 1978 and will end with fiscal 1980. Wliether the Act's appropriations will, in that time, meet total needs, remains to be seen. The Balaxce Upset The earliest European settlers in America found Indians adapted to their environment in a way which satisfied their material, emotional, 377 and physiological needs. The lifestyles that resulted from these adiip- tations disappeared with European colonization. Settlers brought with them strange diseases and alcohol. Those tribes which resisted coloni- zation found themselves in drawn-out combat. Indians living on lands the settlers wanted were removed forcibly. Smallpox was the first Indian health problem the Federal Govern- ment recognized. Because it threatened the lives of soldiers stationed near reservations, the War Dej^artment ordered mass vaccinations. However, the vaccines often did not arrive where they were needed, and there was a shortage of doctors to administer them, despite the fact that Indian agents wrote frequently to Washington to seek both. For the most part, the only Federal medical care Indians received during the 19th century was occasional attention from doctors hired by the Bureau of Indian Affairs to treat Federal employees and children in BIA schools. Although a health division was created in the BIA toward the end of the 19th century, which hired some additional doctors and built some hospitals, health needs of Indians have never been adequately met. For example, in 1921 Congress passed the Snyder Act Avhich au- thorized the approjjriation of funds "from time to time" for "relief of distress and conservation of health." A Brookings Institute study of Indian administration ^^ reported on the continued extensive con- ditions of ill health that })revailed among Indians, and some 20 years later when teams from the American Medical Association were asked by the Secretary of the Interior to investigate health care on a number of reservations,^'* they reported : As a result of lack of sanitary conditions, many of the diseases common to white men are rampant among the Indians and require redoubled efforts on the part of the medical officers to control them. * * * jf ^jjg American people were aware of the failure on the part of Congress to appropriate sufficient funds for the health of the Indians, a justified wave of criticism would sweep the country. Ten years later in 1958, according to the Public Health Service, Indians continued to have health problems resembling in many re- spects those of the general population of the Nation in 1860, a genera- tion before. Diseases largely controlled among the general population still caused widespread illness and death among Indians. These and similar studies prompted Congress in 1955 to transfer Indian health responsibility from the BIA to a newly created body under Health, Education, and Welfare called Health Services Admin- istration, Public Health Service.^^ It was later renamed the Indian Health Service (IHS). After the transfer from Interior to HEW, appropriations increased, but there still was not enough money to serve both reservation and nonreservation Indians. The underlying environmental and social causes of poor health remained untouched. From the Indians' stand- point little Avas changed, and in 1976, as pointed out by Senator Henry M. Jackson : ^® " "The Problem of Indian Administration," Baltimore : Johns Hopkins Press, 1928. ^* Drs. Brasch. Branton, and Chesley, "Survey of Medical Care Among the Upper Mid- west Indians", Journal of the American Medical Association, Rochester, Minn., Jan. 22 1949. pp. 223, 225. ^ Public Law 83-536, 71 Stat. 370, 42 U.S.C. sec. 2001 (1954). " Testimony before the Indian Affairs Subcommittee of the House Interior and Insular Affairs Committee, Oct. 20, 1975u 92-185—77 ^25 378 The deplorable state of Indian health is a matter of record. No recitation of cold statistics can adequately portray the human misery and suffering experi- enced by the majority of Indian and Alaskan Native peoples on reservations and in numerous villages in Alaska. However, when the impact of these statistics is measured against the unfulfilled hopes and aspirations of scores of Indians which have been cut short by unnecessary illnesses and deaths, and against the alarm- ingly high number of Indian families which have been devastated by social dis- integration caused by mental illness and alcoholism, then such conditions become real and meaningful. Our national conscience demands that this deplorable health picture be corrected. The Health Care System As U.S. citizens, Indians are entitled to the entire range of healtli serAdces available to the entire population. However, the fact is that Indian people receive the bulk of their medical care from a single Federal agency^ — Indian Health Service. One reason is that Indians seeking care from federally funded programs administered by State or local governments are often refused with the excuse that IHS is solely resj^onsible for their care. IHS, however, has neither funding, facilities, or staff to provide health service to all Indians. As a consequence, many go without any care. Like the BIA, IHS has to limit its health care to those Indians living on or near federally recognized reservations. These Indians receive direct care in IHS facilities and indirect care from private health providers contracted with IHS funds. As the parent body of IHS, the Department of Health, Education, and Welfare controls the size of IHS staff, has final approval of its budget before it goes to 0MB, and sees that the Service conforms to administrative and departmental policy. But HEW has not been an aggressive advocate of Indian health. It opposes the use of direct health care, but fails to insure Indian entitlement to alternative health care sources, such as other HEW programs and federally funded State and local programs. An obstacle to improvement is the fact that HEW regional offices do not correspond geographically to IHS area offices. There is also a lack of interagency coordination, consultation, and monitoring. In April 1975, an Intra-Departmental Council on Indian Affairs was established within HEW. The establishment of this council was based on a recognition of the total lack of coordination of Indian pro- grams within HEW. Few FACiLiTrES, Poor Facilities IHS headquarters are in Rockville, Maryland. Eight area offices administer and advise 86 service units, which actually provide health care on reservations. At the service units there are 51 hospitals with inpatient and outpatient clinics, 83 health centers and 300 field stations, including those in Alaska. Not only is the number of these health facilities insufficient, but many are unacceptable by national standards. Thirty-five of the 51 hospitals do not now meet Federal fire, safety, and building codes. Twenty-nine do not meet Federal accreditation standards, either be- cause of poor physical plants, inadequate staffing or deficiencies in equipment supply." !• Hearings before the Permanent Subcommittee on Investigations of the Committee on Government Operations, U.S. Senate, 93d Cong., 2d sess., Sept. 16, 1974, p. 5. '"""'"""'^'^ °° 379 In 1974, an Indian health bill introduced by Senator Jackson de- scribed IHS facilities as "inadequate, outdated, inefficient and under- manned".^^ The same bill pointed out that 57 areas with Indian popu- lations required "either new or replacement health centers and sta- tions, or clinics remodeled".^^ One tribal chairman, Henry L. Allen, described the Pawnee, Okla- homa, service unit as follows : There is just do way you can justify continuing tlie hospital or even calling it a hospital. It is obsolete. It was built around the first of the century. It has been there these many years. We keep modif.Aing this old facility and it will never be adequate for the present needs of the people, who number 12,000 to 18,000 . . . with four doctors."" The following engineering report was written on the Winslow, Arizona, IHS hospital, one of four unaccredited facilities viewed by Senate investigators : This is a three-story, heavy double reinforced concrete building. It was built in 1933 as a tuberculosis sanitarium. The facility is now a 40-bed acute care hospital. Not one room in the building was designed for the use it is now put to. There is no chance for proper nursing care, proper nursing procedure, or proper asepsis. With the possible exception of the kitchen, every department of this hospital is critically inadequate for acute patient care. Because of structural limitations, it is unfeasible to remodel or expand this building.^ IHS delivers the bulk of its direct care in the outpatient clinics of its hospitals and it is there that the Indian patient most often suffers from the inadequacies of the system. Patients who have traveled long distances often wait several hours for only a cursory examination. One Navajo facility with four examining rooms has an outpatient load of 60,000 visits a year. A single X-ray machine performed 27,500 ex- posures in 1 year, even though the safety standard is 5,000 exposures.^^ Some new methods of providing medical care are being explored. For example, mobile health vans are being used experimentally on the Navajo and Rosebud reservations. Until recently, a television satellite Avas used successfully in Alaska to relay a physician's diagnosis and in.structions to remote, inaccessible areas staffed only by health aides. CoxTR-VCT Care To supplement its own facilities, IHS spends about a third of its budget on contract care in private facilities. Aside from the fact that IHS is unable to meet its own existing need, there are other disadvan- tages to purchasing contract care. In some instances, contract medical care may be uneconomical. In addition, contract care suffers from a lack of monitoring of reported discriminatory practices among some doctors and hospitals. Such monitoring would be difficult under the best of circumstances, but many contracted facilities are far from reservations, and IHS has neither the formal means nor the staff to perform that function. " S. 2938, 93d Cong., 2d sess., Feb. 1, 1974, sec. 2(f) (1). w Ibid. ="> Hearings before the Permanent Subcommittee on Investigations of the Committee on Government Operations, U.S. Senate, 93d Cong., 2d sess., Sept. 16, 1974, p. 53. 21 /bid., p. 35. 22 Testimony of Dr. Taylor McKenzie, Executive Director, Navajo Health Authority, before the Permanent Subcommittee on Investigations of the Committee on Government Operations, U.S. Senate, 93d Cong., 2d sess., Sept. 16, 1974, pp. 58-59. ' 380 In addition to direct and contract patient care, IHS also offers on a Tandom basis (dependent upon available funding and staff) various •outreacli and community oriented programs in public health, maternal and child health, nutrition, and hygiene. If such programs were oper- ating on a large scale, the limited service which IHS can give would be enhanced considerably. Since they are not, IHS' task is more dif- ficult than it need be. IHS Staffing Like its predecessors, IHS is chronically short of personnel, both professional and supportive. Isolation in an alien culture, lack of educational and recreational facilities, low-pay, separation from pro- fessional colleagues, inadequate and substandard housing — all of these factors make recruitment difficult and turnover high. Of those who do accept IHS work, many have had only superficial exposure to public health work, and little if any knowledge of Indians. Often these employees are not sufficiently oriented before going to their posts and may experience severe culture shock. Doctors and nurses who stay on find it difficult to integrate socially with the Indian community, have excessive w^orkloads in ill-equipped facilities, and become frustrated with patients who are often unresponsive and hostile to non-Indian medical methods. IHS has generally relied for staff needs on the Public Health Serv- ice, which many professionals chose in lieu of military service under the draft. Despite the fact that this option no longer exists, IHS has not offered incentives of any kind to professionals from other sources. In the recent past, a few foreign medical school graduates were hired ^^ to fill this gap, but they lack command of either English or any Indian language and further aggravate existing frustrations which Indian patients experience in seeking culturally sensitive treatment. Two-thirds of the IHS hospitals, four-fifths of its outpatient clinics and half of its health centers are understaffed^meeting only 80 per- cent of staffing standards for their respective services.-* The IHS ratio of health professionals to population shows the IHS lagging behind the national average in every category :^^ Current Recommended ratio ratio Physicians 1/938 1/700 Dentists 1/2,800 1/1,650 Otolaryngologists 1/120 ,000 1/20 ,000 Audiologists 1/480,000 1/30,000 Opiithalmologists 1/54 ,200 1/12, 000 Optometrists - — - 1/69,714 1/10,000 Pharmacists . . 22/100,000 65/100,000 Social service workers 1/7 ,283 5/10 ,000 Registered nurses -- 207/100,000 458/100,000 Public health nurses — 29/100,000 40/100,000 23 Congress recently declared in the 1976 Health Professions Educational Assistance Act that "there Is no longer an insufllcient number of physicians and surgeons in the United States such that there is no further need for affording preference to alien physicians and surgeons in admission to the United States under the Immigration and Nationality Act". New York Times, Jan. 14, 1977. ^ S. 2938. 93d Cong., 2d sess., Feb. 1, 1974, sec. 2(f) (2). 2s IHS Office of Program Statistics. 381 The Service also has a shortage of support staff, such as parapro- fessionals, technical aides and assistants, to the extent that profes- sionals are obliged to perform many of the functions tliat should be done by assistants. Further, IHS hospital administrators report that nurses frequently cannot maintain continued surveillance of an}' given section because they must move one to another in any given work shift. "Infants have died because there was nobody to take care of them," according to Di-. Taylor McKenzie, Executive Director of the Navajo Health Authority.-*^ The testimony of Alan Yamashita, Fort Defiance Unit Director, is but one of many similar accounts given to a Senate investigative committee : This administration has been informed of a number of incidences where the safety of patients has been placed in jeopardy. For example, on August 21, 1974, there were only two nurses (RN and LPN) on the 4:00-11:00 p.m. shift in the OBGyn Department. These individuals had the responsibility of caring for 16 patients. During the evening shift there were four OB admissions and two de- liveries. In addition to this, there was a baby in an isolette in the transitional nursery which had to be observed at all times. They requested help, but because of the nursing shortage in other departments, could not be helped until around 11 p.m. Therefore, with no help in sight, deliveries continued but no postpartum checks were made, and no infants in the nursery were observed. The results could have inchided postpartum hemorrhage on the unobserved mother, apneic spells, and/or the death of an infant. The total OBGyn census at the end of the evening shift was 22.*^ This statement by IHS Director Dr. Emery Johnson to the same in- vestigating committee sums up the typical staff situation : "There is no way that a single nurse, for example, can adequately watch the labor room, the newborn nursery, the intensive care nursery, and sometimes even have to cover the emergency room. There is no way."' -^ In addition to its numerical shortcomings, IHS staff is often in- sensitive to the needs and values of its Indian patients. Professionals, for example, are generally non-Indian, as are administrators.-^ IHS efforts to employ more Indians have been generally unfruitful. Ad- herance to Indian preferance and employment policies which date back to the 1800's,^° has been opposed time and again by non-Indian em- ployees who feel it discriminates against them. Service training programs have been equally ineffective. Most are onlj' for clerical and technical Avorkers and practical nurses, and they are located away from the reservation.''^ In the case of the START program (geared to GS-1-5 level) and the Upward Mobility program (geared to a GS-7 level), the supplementary inservice training stu- dents are supposed to receive from IHS superiors is rarely given be- cause professionals cannot take time from heavy workloads for such purposes. Community health representatives questioned by the Health Task Force ^- indicate that their IHS training is inadequate. Seventy-four ^ "The Navajo Nation : An American Colony," a report of the U.S. Commission on Civil Rights, Sept., 1975, p. 107. 27 Hearings before the Permanent Subcommittee on Investigations of the Committee on Government Operations, U.S. Senate, 93d Cong., 2d sess., Sept. 16, 1974, p. 66. ^ Ibid., p. 73. ^ IHS employs only three Indian doctors of a total of 486 ; only 15 of the Service's S4 service units have Indian directors. IHS figures, Apr., 1973. 30 See, e.g., Indian Trade and Intercourse Act, June 30, 1834, 4 Stat. 729, sec. 9. 31 Desert Willow, Santa Fe, and Black Hills. «2 Survey of 285 CHRs, June, 1976. 382 percent of the respondents said they needed training in the administra- tion of drugs; 78 percent in symptom identification; 70 percent in emergency medical care; 65 percent in psychiatric crisis intervention; 54 percent in lab sample testing; 67 percent in midwifery; 68 in com- municable disease control and prevention. IHS funds training for Indians to become licensed practical nurses ■at schools in Rapid City, South Dakota, Shiprock, New Mexico, and Albuquerque, New Mexico. But no such programs are at present of- fered for the training of registered nurses, although efforts have been made to utilize nearby colleges for this purpose. While IHS training programs are conceptually sound, they are too few in number to begin to meet the service population's needs, and they are not geared to specific tribal situations. Indians are not using the training programs to any significant de- gree because of the hardship of traveling to training centers and other reasons. The Health Task Force, in a study of the IHS manage- ment system, found Indians frustrated with the Service's selection methods : there is favoritism shown ; there is no overall plan geared to a systematic filling of staff gaps ; information concerning the train- ing programs is inaccessible ; and application procedures are complex. The use of medicine men and women to alleviate staff shortages is accepted by IHS in a limited way, varying from unit to unit. The idea meets resistance both from Indians and non-Indians in some areas. In other cases, skeptics who have agreed to try a combination of tradi- tional and Anglo medicine have met with success. The possibilities for use of this resource have not been sufficiently explored, partially be- cause of the lengthy, expensive training involved. A single school operates at Rough Rock in the Navajo area as a demonstration proj- ect. It began in 1969 with funds from NIMH. IHS Budget In addition to its staffing and facilities problems, IHS is plagued with an inefficient budget and management system. Administrators are always concerned whether the Service can survive each time Fed- eral policy changes or health responsibility is shifted to a different agency. Dependence on congressional appropriation is another source of anxiety. These factors — combined with pressing, critical needs at the unit level — have an effect on management efficiency. Congressional appropriations for IHS are based, not so much on changing and diversified service unit needs, but rather on the amounts allocated in the previous year in specific health categories. IHS, HEW, and 0MB together prepare an annual budget for congressional review. Congress then appropriates funds in four categories: patient care, field health services, construction, and program management. IHS feels obliged to spend funds as Congress specifically directs, even when this means that unit needs may not be optimally met. Headquarters then allocates to areas, and areas to service units, according to their previous budgets, and, to some extent, their pro- jected needs. When service units and area offices prepare their indi- vidual budgets for submission to IHS headquarters, they set priorities 383 based on their needs, but realize that headquarters allocations will be made within the limits of what Congress has appropriated. There is never enough money to eliminate the Service's backlog of unmet needs and also to meet on-going needs. IHS, therefore, has to do the best it can with limited funds. The number of positions a service unit has is also fixed in the budget mechanism. IHS received an increase of 500 positions in fiscal 1971, and these were divided by headquarters equally between field health and patient care. Additional positions continue to be distributed equitabl}^ among area offices, who, in turn, allocate to service units. Such a budget system has a deadening effect on service unit direc- tors, who have no flexibility in planning programs to meet the spe- cific needs of their patients. Indian Involvement in IHS In theory, Indians have close involvement with the service which delivers health care to them. In practice, however, Indian involve- ment is uneven, with considerable variance from tribe to tribe. The Administration, the Congress, and IHS have all indicated support for the concept, but it is difficult to implement, even though both IHS and tribes have developed mechanisms for that purpose. Tribes have advisory health boards and departments; IHS has a Division of Indian Community Development (DICD) and an Office of Tribal Affairs. DICD is supposed to participate in servicewide executive policy formulation and execution ; advise on the operational implications of the Service's plan, programs and operations ; provide servicewide leadership in program operations and internal coordina- tion in relation to Service goals, objectives, policies and priorities; provide direction and coordination for day-to-day operations of area offices. OTA is supposed to participate in the servicewide executive policy formulation and execution; coordinate the development of optimal, supportive relationships with tribal governments, intertribal governing bodies, national Indian interest groups, and other individ- uals and groups interested and active in Indian affairs; advise on the tribal affairs implications of Service policies, plans and programs and operations. The Director of IHS has as one of his functions "develop- ing individual and tribal capacities to participate in the operation commensurate with means and modalities which they deem appropri- ate to their needs and circumstances." Neither of the IHS structures has staff or budget at area and service unit levels and, therefore, cannot implement their functions to a sig- nificant extent. Advisory Indian Health Boards were established at service unit levels by a number of tribes in the early seventies in an effort to make IHS delivery more responsive to tribal values and traditional healing methods. The Board concept has since expanded to the area and na- tional level with a budget of $244,000 supplied by IHS (the very body that boards are to evaluate, monitor and criticize) , but it continues to operate in a somewhat unstructured fashion with insufficient resources, funds, or expertise. Its members often are unpaid volunteers who deal with grievances, orient new IHS staff, provide liaison between IHS and Indian people, handle individual patient complaints, strive for 384 more cultural sensitivity on the part of IHS staff, and let the Service know what their priorities in health service are. Testimony given to the Health Task Force ^^ indicates that these lay board members feel at a disadvantage with IHS professionals; are ineffectual because they are funded out of service unit budgets, if at all; and have no real authority vis-a-vis IHS. Tribal health departments generally have greater funds and full time staffs, but they too are funded by IHS. These departments co- ordinate tribal health programs which IHS buys by contract for use by its service population. Since tribes run these programs, they have the authority to hire staff and set policy. Moreover, their exist- ence, unlike the advisory boards, is authorized by law.^* A comparison between tribal involvement mechanisms (healtli boards, health departments, and contracting) and those operative for the non-Indian population (Health Service Agencies) highlights the weaknesses in the Indian involvement system. Health Systems Agencies were created by the National Health Planning and Resources Development Act of 1975.^^ Each of these agencies receives direct funding from HEW for a staff of no less than five professionals with expertise in administration, data gathering, health planning, and health resources development. The functions and authority of these agencies is spelled out in the Act which created them: they have review and approval authority over proposals for various kinds of federally funded programs. They are authorized to develop health plans indicating the kinds of health services needed to increase the accessibility, acceptability, continuity, and quality of health delivery in their areas. They receive technical and consultative assistance from Centers for Health Planning (also funded by HEW) to aid them in developing innovative approaches to health care delivery. The Act which created Health Systems Agencies specifically ex- empted tribal health programs from HSA authority, in order to preserve tribal sovereignty and guard against State jurisdiction. This means, however, that these monitoring and evaluative mechanisms cannot presently be used vis-a-vis IHS, and that tribes are still with- out adequate resources and capability for doing so. It appears that tribal attitudes concerning IHS are transmitted to Congress primarily through the avenue of committee hearings, which set obvious limits. It is clear that tribes need a program comparable to HSA, perhaps one modeled after it, with non-Indian medical associations providing technical assistance and guidance until there are sufficient Indian health experts available to take over those roles. Indian involvement is likely to increase as tribes begin to implement the Indian Self-Determination and Education Assistance Act passed in January of 1975. The Act authorizes grants to tribal governments for the purpose of evaluating, monitoring, and restructuring present programs for greater flexibility to service unit needs and priorities. The Act also will permit tribes, through grants, to design their own programs. 33Rpnort on Indian Health, AIPRC, Washington, D.C. : U.S. Government Printing Office, July. 1976. pp. 131-1.32. 31 Buy Indian Act (25 U.S.C. 47. 18.34) ; and the Indian Self-Detennination and Educa- tional Assistance Act f Public Law 93-268). ^ Public Law 93-641. 385 The IHS Patient The shortcomings of IHS' delivery S3^stem are keenly felt by its recipients, the Indian people. In testimony to the Health Task Force, ^® patients told of traveling long distances to facilities, having to wait several hours to be seen, and, finally, receiving but cursory examina- tion. Often patients are denied needed services simply because IHS lacks the staff or equipment to provide them. As inpatients, Indians frequently receive improper care because of staffing and facility inadequacies. In the words of Dr. Emory Johnson, IHS Director, "The main concern (of doctors and nurses) is one of being unable to respond to patients with the quality and quantity of care that they know from their training and from their experience is required.^^ But the overriding dissatisfaction Indian people have with IHS is its non-Indian orientation, staffed as it is mostly with non-Indian doctors practicing non-Indian medicine. It is the Indian patient who has had to adapt, rather than the other way around. Most Anglo doctors and nurses are not knowledgeable of Indian culture and values and are therefore insensitive to the needs of their patients. Indian people feel that this creates a barrier to effective treatments. They may be frightened and uncomfortable with "scientific" methods and could respond more readily to treatment which is relevent to their traditions. IHS staff is aware of the problem and is frustrated by the resistance and hostility of Indian patients. Yet IHS has done little to seek out and hire traditional practitioners. It was, instead, the National In- stitute of Mental Health which in 1966 funded the first and only tradi- tional medicine training program now in operation.^^ It is still only a pilot project in which medicine men draw salaries for their teaching and students earn a small hourly allowance. IHS psychiatrists, in par- ticular, are enthusiastic about the program, even though some had reservations at the beginning. Dr. H. C. Townsley, chief of IHS Mental Health Programs, told the Health Task Force in 1976 that his staff had learned to consult with traditional healers whenever possible, because it helps them to understand patient needs. Towns- ley feels that traditional, ceremonial techniques work better with emo- tionally disturbed Indians than non-Indian symptom-based therapy. Clearly, there is a need in IHS for traditional healers. Working in combination with non-Indian doctors, they can see that Indian patients are given the kind of medical care they can respond to. Alternate Health Care Sources For those Indians who are excluded from the IHS delivery sys- tem (members of nonrecognized tribes and urban and rural Indians, members of recognized tribes not living on reservations), there are, theoretically, alternative sources of free health care. But actual use of these sources is often denied to Indians simply because they are Indians and despite their citizenship rights to such services. With the »See hearingrs transcripts, Health Task Force, AIPRC ; Phoenix, p. 22 ; Oklahoma City, pp. 46, 94, 104, 140 ; Billings, pp. 6-12 ; Navajo, p. 17. . ... ^ ■•!" Hearing.<5 before the Permanent Subcommittee on Investigations of the Committee on Government Operations, U.S. Senate, 93d Cong., 2d sess., Sept. 16, 1974, p. 73. =« Located at Rough Rock, Navajo Nation. 386 eventual advent of National Health Insurance highly probable, it is important that the Indian right to alternative health sources (other than IHS) now be firmly established and assured. Health providers other than IHS, at every governmental level, claim that Indians are the sole responsibility of IHS and tliat they do not have the funds to serve Indians. Some of these alternate providers are county hospitals, mental institutions, various children's services, and vocational re- habilitation services, as well as financing mechanisms such as the Veteran's Administration, workmen's compensation, medicaid, and medicare. Either Indians are excluded from these programs, or, as in the case of medicaid and medicare, discouraged from their use by complex reimbursement and eligibility barriers. This situation exists despite the fact that HEW has declared that recipients of Federal financial assistance may not deny health serv- ices to Indians on the grounds that IHS services are available. More- over, IHS, Office of Civil Rights, and the Medical Services Admin- istration (MSA) entered in a triagency memorandum of agreement in 1973 on Indian eligibility rights to federally funded programs. IHS agreed to determine how many Indians are eligible for non-IHS federally funded programs; to furnish OCR with a, list of Indians who have been refused service in such programs; and to publicize among Indians the availability of such services. IHS has been unable to keep any of these promises to any significant extent because it lacks the funding and staff to do so. Without convincing evidence from IHS,"^ OCR, in turn, has not been able to perform the monitoring and enforcement functions it agreed to in the triagency memorandum. ]MSA, which agreed to help non-Indian health-resource agencies with procedures necessary to firmly establish such eligibility, has not done so, according to tastimony at Health Task Force hearings,^" because no agencies have requested such help. Health Task Force hearings further revealed that urban Indian health centers (where complaints of discrimination are most likely to be heard) knew nothing of the memorandum because none of the three agencies had told them about it. OCR gave the excuse that it is over- burdened with other responsibilities and does not have funding to carry out the memorandum agreement. IHS declared that it is preoc- f'upied with pressing medical problems. Clearly there is a need in HEW for a funded and staffed monitoring and enforcement body to im- plement the plan which the three agencies set up but are unable to carry out. But the poor living conditions on Federal reservations, often fixed in colonial economies, are directly attributable to the failure of HEW, HUD, and BIA to eradicate them. Housing : The Unmet Need Providing every American family with safe, adequate housing has been the goal of the Federal Government since 1949. More than 25 years later that goal has not been attained for its citizens and in par- 2» Only seven charges of discrimination have been reported hy IHS since the agreement was made in 1973. One of the charges was made after an Indian was denied care from a non-Indian facility and subsequently died. "Report on Indian Health," AIPRC, Washing- ton, D.C., U.S. Govt. Print. Off., Sept., 1976, pp. 138-139. 4'5 Ibid., pp. 139-140. 387 ticular for Indian people. Table one demonstrates the disparity be- tween national and Indian housing statistics. TABLE 1.— SELECTED CHARACTERISTICS OF INDIAN HOUSING Indian National Selected characteristics (percent) (percent) Housing units over 30 years of age 40.9 40. 5 Lacking plumbing 26.3 5.5 V/ith plumbing but crowded 16.4 6.9 Source: U.S. Bureau of Census, IWO Census of Housing, HC(7)-0 "Housing of Selected Racial Groups," HC(7)-1 "Housing Characteristics by Household Composition," and HC(2)-1 "IVIetropolitan Housing Characteristics." While the above figures are illuminating, a better understanding of the magnitude of the problem can be gained by examining BIA hous- ing statistics. Table two is an inventory of housing by BIA area offices. Of the 109,255 dwelling units shown in all BIA service areas, less than half (49,560) are considered standard. A third of the total need outright replacement ; slightly over one-fourth need renovating, and another 18,000 families who may be living with other families are in need of some kind of shelter of their own. Table 2. — Consolidated Housing Inventory [Fiscal year 1975] Total number of existing housing units 109, 255 Housing in standard condition 49, 560 Housing in substandard condition 59, 695 Of the housing in substandard condition 59, 695 Housing units needing replacement 33, 122 Housing units needing renovation 26, 573 Total new units required 51, 065 Housing units needing replacement 33, 122 Families needing bousing 17,943 iSource : Bureau of Indian Affairs, 1975. Table three shows the BIA Inventory changes between fiscal year 1974 and fiscal year 1975. Because of the movement back to the reser- vations, more reliable data collection procedures, expanded BIA serv- ice districts and the rapid deterioration of existing stock, present efforts are not keeping pace with the new demand and will not result in reducing the present total housing deficit. In fact, present produc- tion must more than double to eliminate the deficit within a reason- able time. TABLE 3.— CHANGES IN CONSOLIDATED HOUSING INVENTORY (FISCAL YEAR 1974-75) Increase Selected categories Number Percent Number of families in service population. 13,927 12.0 Total number of housing units 13, 101 13. 3 Number of substandard housing units 6,410 12.3 Total housing need 7,236 10.6 Source: Bureau of Indian Affairs, 1975. p 388 Substandard housing conditions cause serious health problems for Indian people. As pointed out by Dr. Emery A. Johnson, Director of the Indian Health Service (IHS) , during the 1975 Senate hearings on Indian housing, "A major element in the health status of the people is based on the environment in which they live, and a fundamental part of that environment is their housing." Dr. Johnson went on to say that "crowded living conditions, insufficient amounts of safe water, and lack of sanitation facilities are factors contributing to the poor •environment in which most Indian and Alaskan Natives live." *^ Im- proved housing will not only contribute to the health of Indian people, but also will surely aid in the social and economic development of the reservation. u CURRENT HOUSING PRODUCTION Shown in table four is total new houses built within BIA service areas during fiscal year 1975. If one compares the total of new homes built (4,146) with the increase in total housing units needed (7,236), it is clear that current production levels are not even meeting new demand. TABLE 4.— NEW HOMES CONSTRUCTED DURING FISCAL YEAR 1975 Number Percent HUD low rent Mutual help TurnKey III Total 974 23 1 ,678 40 93 2 2,745 641 15 74 2 112 3 574 14 BIA housing improvement Flood rehabilitation Built with credit loans Other Total, new homes 4,146 100 Source: Robert D. Leatherman, The Indian Housing Effort in the United States. Prepared for Task Force Number's 6 and 7, American Indian Policy Review Commission, Washington, D.C., June 1976. (See, footnote 42). Since the availability of the public housing program to Indian peo- ple in 1962, 24,476 housing units were autliorized and 17,457 have been completed for occupancy at the end of FY 1974. Between 1968 and 1975, HIP completed 4,113 new homes, and repaired 29,443 ex- isting homes.'*- Table five compares the Indian housing need with HUD production plus commitments. As can be seen, HUD has had difficulty in attain- ing its production goals. These difficulties can be divided into specific problems which affect some Indian groups more tlian others, and general or universal problems which affect all Indian people to the same degree. ^1 Indian Housing, a report of the hearing before the Subcommittee on Indian Affairs of the Committee on Interior and Insular Affairs, U.S. Senate, May 1, 1975, p. 12. *- Robert D. Leatherman, "The Indian Housing Effort in the United States," prepared for Task Force Nos. 6 & 7, American Indian Policy Review Commission, Washington, D.C., June, 19TG. 389 TABLE 5.— INDIAN HOUSING NEEDS AND HUD ACCOMPLISHMENTS, FISCAL YEAR 1968-75 BIA Inventory, HUD units, HUD units, new units construction completed for HUD needed started occupancy commitment Fiscal year: 1968. 48,866 1,206 992 1969. 51,182 1,049 1,523 6,000 1970 46,544 3,763 1,206 6,000 1971 49,840 4,974 2,160 6,000 1972 48,313 3,111 2,889 6,000 1973 47,071 2,675 3,788 6,000 1974 47,556 2,638 3,499 6,000 1975 151,065 2,170 3,429 Total 19,486 ' Reflects an expanded area served by BIA over previous years. Sources: Col. 1 : Bureau of Indian Affairs Consolidated Area Housing Inventories, Housing Office, BIA. Cols. 2 and 3: 1968, 1969— Special Report, Indian Programs (Dec. 31, 1971) (HPIVIC-FAR). 1970-75— Public Housing Performance Analyses (HPIVIC-FHA-FS). Col. 4: 1969-73— Based on 30,000 unit commitment of the 1969 triagency agreement (HUD-BIA-IHS). 1974— Secretary Lynn, Nov. 30, 1974. Specific Problems: Regional and Cultuhal Variations Alaskan Natives, Eastern tribes, Oklahoma tribes, rancherias, small bands, unorganized Indian commmiities, southwestern tribes, and pueblos, and the Great Plains tribes each face unique problems in obtaining housing which meets their diverse climatic and cultural conditions. Housing for Alaskan Natives must consider severe weather condi- tions, their dependence on a subsistence economy, a short construction season, the remoteness of the area, and the lack of local construction skills. Recognizing these unique circumstances, HUD designed a "special 600" program to provide homes to remote Alaskan villages.'*'^ Even though certain HUD standards such as minimum property standards were waived, the program is not flexible enough to meet Alaskan conditions. Costs are running up to $50,000 per unit; regular inspections have been too costly ; and operating costs, particularly fuel costs, are beyond the cash income of the inhabitants. However, there was one exemplary development at Fort Yukon where the local hous- ing director further deviated from HUD design guidelines and achieved more acceptable results in terms of cost ($35,000 per unit) and climatic conditions. Clearly considerable flexibility is needed in the HUD regulations. Most Eastern tribes, unorganized tribes, small bands and communi- ties, and rancherias are largely excluded from HUD programs because they lack Federal recognition, trust land, or live in sparse or remote locations. Southwestern tribes and pueblos find HUD housing designs simply do not fit their traditional lifestyles. On the Great Plains reservations where land is checkerboarded*^ there is a scarcity of appropriately located usable space. *2a Reflects an expanded area served by BIA over previous years. ** See ch. 7 of this report for a discussion of landholding problems on reservations. 390 Universal Problems There are at least seven major problems which impede the delivery "of housing to Indian people. First, there is a lengthy development period. Former HUD Secre- tary, James Lynn, estimated that it takes 18 months to process a hous- ing application to the point where a contract between HUD and the Indian Housing Authority (IHA) can be executed.** With public housing, especially Mutual Help projects, HUD's time delays revolve around tenant selection and site selection. Tenants nearly always want their homes built on land previously assigned, allotted, or leased from the tribe. Only after tenants and sites are selected can HUD run an accurate cost estimate of site work, unit construction, and access roads. To expedite the processing, many HUD field offices obtain site leases or assignments in advance of the contract execution. The new housing regulations, in sec. 805,217(b), expressly provide, however, "No site may be acquired or leased and no com- mitment shall be made for acquisition or leasing until after execu- tion of the contract." *^ The paradox of this situation is that an accurate contract amount cannot be determined until site costs are known ; entire site costs cannot be determined until water is located ; and water can only be guaranteed through drilling, which is expen- sive and can only be paid for out of contract f unds.*^ Second, a major impediment to the delivery of Indian housing is the unwieldy multiagency agreement among HUD, the Indian Health Service (IHS), and the BIA. The Bureau handles the preliminary work on site selection, working out the necessary leases and provid- ing the roadwork up to the project site. IHS is in charge of providing all the sanitary requirements up to the project site. HUD provides the building and is responsible for the site work, including whatever intraproject roads and service lines will be needed to connect the liomes with the roads and sanitary lines delivered to the project by BIA and IHA. Certain decisions by any one of the three are not always possible until one or the other has done its job. IHS must wait for site identification by the BIA before it can project costs for sewer and water services, and only then can HUD review construction plans. Since no single agency has been placed in charge of the entire oper- ation, there is no recourse to remedy delays or bottlenecks in the operation. When the triagency agreement was first entered into in 1968, HUD promised 6,000 units a year for the period (1970-74); the BIA committed itself to providing 1,000 new or improved units and tribal groups were supposed to sponsor another 1,000 units. An additional complication in this triagency agreement is the prob- lem of coordinating agency budgets. IHS attempts to budget its funds as far ahead as possible. Projects to be developed, then, are sometimes decided upon for 3 year cycles. HUD and BIA, on the other hand, are subject to the annual congressional allocation process. In the past, IHS has not known imtil very late where HUD and IHAs intended ■^' Remarks by former HUD Secretary, James Lynn, HUD National Indian Housing Con- ference, Nov. 14, 1974. *s Federal Register, Mar. 9, 1976, p. 10164. ** Leatherman, p. 38. 391 to place units — not only the exact site on-the reservation but also which reservation — so that funds for the necessary sanitary facilities could be made available to the appropriate IHS director. The new interde- partmental agreement of February 6, 1976, attempts to smooth out the wrinkles in this procedure by stating that "if" and "when" the funds are made available by Congress, what projects shall be given priority. In at least one housing development program the problem of triagency coordination has been successfully alleviated by tribal utili- zation of an integrated grant under the Joint Funding Simplification Act. The Salt Eiver Pima-Maricopa Community project in Arizona should be given serious consideration as a model for other tribal lious- ing projects. Tliird. another stumbling block to the delivery of housing has been ths lack of commitment and unity among HTID officials. Most HUD ofiicials treated Indian housing simply as another responsibility to a minority group, not requiring a special organization or programs. In a March 19. 1976 meeting with several prominent Indian leaders. Secretary Hills restated HUD's commitment to a production goal of 9,723 units for FY 1976 and created the new Office of Indian Programs and Policy. One hopes that this new sense of commitment will be maintained by the new administration. The only other significant Indian housing program, the BIA Hous- ing Improvement Program (HIP) is considered a successful program. However, its relatively low budget, $11 million currently, does not permit it to make a very large impact. Former BIA Commissioner Thompson, in a hearing on Indian housing before the Senate Subcom- mittee on Indian Affairs in May 1976 stated that housing was not a priority item with the BIA. He estimated $1.2 billion would be needed as of FY 1975 to satisfy the housing need. This sum exceeds the BIA total annual budget. Faced with the enormity of the task, the inference was left that it was not desirable for the BIA to increase the HIP budget at the expense of other BIA programs.^'' Fourth, there are a number of legal problems which impede deliv- ery. For example, private investors are not willing to loan money for housing on trust land, where a mortgage is of no collateral value because the property cannot be foreclosed. Tribal courts have given too little aid to the IHAs in the enforcement or interpretation of con- struction contracts as well as tenant agreements. Fifth, there is a definite lack of agreement among agencies and tribal organizations as to the goal of a housing program. The agencies view it as merely providing shelter, whereas the tribes view it as a means to promote economic development. The economic consequences of housing and related construction in terms of employment, business for contractors and material suppliers, and other related activities cannot be overlooked. There are precious few job oppoortunities exist- ing on most reservations, and it is not uncommon for unemployment to exceed 50 percent during winter months. Realizing the potential of housing construction in alleviating this problem by providing employment and skill development. Indian con- struction firms were formed and were allowed to contract directly with *" Indian Housing, pp. 3-12. 392 IHAs. In the spirit of Indian preference, HUD originally waived its usual advertising for bids rule. However, under the new regulations published for comment by HUD on September 15, 1975, there were no provisions for negotiated contracts. Since the provisions require advertising for prospective construction bids, and since the low re- sponsive bidder must be awarded the contract, the Indian preference has disappeared. Sixth, the slow pace in meeting the need for Indian housing is not entirely due to forces on the national level; local political problems contribute to delays. At the center of these troubles is the relationship between the tribal council and the IHA. Reversals in tribal elections have caused wholesale purges of IHA commissioners and staff. Be- cause knowledgeable, trained IHA commissioners and staff cannot be easily replaced, public housing programs have often been brought to a standstill when these wholesale removals have taken place. The los- ers in these situations are the tenants, both actual and prospective. Almost all patronage flows from the faction in power and reaches even the selection of tenants as well as those who will be employed in the construction. "While such personnel turnover is not unique to In- dian people, measures should be taken to discourage its practice. Seventh, rent delinquencies are first an economic problem and sec- ond, political and legal problems for the IHAs. HUD housing is not a grant program and the legislation has alwa;7s required some rent payment from tenants. A rental program in a tribal context poses sev- eral problems. First, the payment of rent, however small, requires some income. It is believed that the bulk of tenants delinquent in rent are very low income people, who are most in need of housing and have the least ability to obtain it elsewhere. IHAs in undertaking the hous- ing of very low income persons in rental units run the real risk of im- periling the operation of its entire housing program. Because of delin- quent rent payments and because of inadequate subsidies from HUD, IHAs have sometimes borrowed from a development account to meet an emergency, for instance to pay for utilities. The impending insol- vency of IHAs will seriously affect the delivery of Indian housing. IIesol'\t:ng the Dilemma The above seven problems will only be solved by a housing program which incorporates the following five essential characteristics. 1. Simplicity of Implementation and Operation. — Lengthy devel- opment periods, complicated financial arrangements, and mass pro- duction techniques with scheduling problems must be eliminated in order to speed up the delivery of housing. 2. Coordinated Cross-Agency Involvement. — Coordination of the joint agency program by one agency would help to eliminate delays. 3. Promotion of TriSal Control. — Federal agencies must delegate more decisionmaking power to local tribal authorities in order to pro- mote self-determination and to ensure that housing attains its maxi- mum economic impact. Tribes should be assisted in developing propos- als for integrated grants under the Joint Funding Simplification Act. 4. Variety of Programs. — There must be a variety of programs with flexibility of standards and regulations to deal with climatic and cultural differences among Indian people. 393 5. OoTYhbination Grant and Loan Approach. — Indian housing- must be financed by a combination approach. Grants must be provided for housing for the very poor. Loans nnist be provided for the construc- tion of low rent and middle income houses. A combined approach is equitable and will also provide more funds than a system purely de- pendent on gi-ants. Other Considerations Before outlining the Commission recommendations, it should be mentioned that HUD has hundreds of millions of dollars in outstand- ing project notes and bonds which must be refinanced on an annual basis. If these securities were unequivocally "double tax exempt", free from both Federal and State income taxes, their marketability would be enhanced. One other issue should be addressed. What should be the coverage of new legislation in terms of providing some form of housing assistance to Indians living oft' the reservation, even in urban areas? One possi- bility is that a tribe could develop a housing program that could aid a tribal member living hundreds of miles away, through a guaranteed or insured loan. Recommendations The Commission recommends that: Congress delegate to the Office of Indian Housing the power to mod- ify existing Federal property standards and prototype costs. The Of- fice also institute programs geai-ed to different income levels. Last, the Office provide housing both on the reservation and off the reservation, wherever Indian people are organized in distinct groups, whether they are federally recognized or not. Congress make HUD housing notes and bonds double tax exempt, that is, free from Federal and State taxes. Water, Sewer and Sanitation Facilities The lack of sanitation facilities on Indian reservations is a primary cause of many Indian diseases. Over 40,000 existing housing units and another 62,000 planned replacement and renovated housing units need new or upgraded water and sanitation facilities.'*' In a survey conducted by the Commission's Health Task Force of 21 tribal councils in 10 reservation States,*'' over half the respondents said there was evidence that their Avater systems were coiitaininated. Slightly less than half said their water supply was poor. Eighteen re- vealed that water was still being hauled from a lake or stream. All of the respondents indicated that individual septic tanks are the pre- dominant waste disposal system. Eleven have some kind of com- munity water system ; seven said that open drainage of untreated sew- age is a problem. Only eight out of the 21 reservations surveyed were receiving trash removal services, only two street maintenance, and only four drainage services. « S. 2938, 93d Con?., 2d sess., sec. 2(f) (6). " AIPRC Health Task Force Tribal Council questionnaire, June, 1976. 92-185 — 77 — — 26 394 IHS is the Federal agency responsible for construction of sanitation facilities,'^" but must give priority to facilities for new housing, at the expense of renovation on existing ones. The Service's ability to meet the total need is further hampered by its obligation to schedule work in conjunction with HUD's housing and BIA's road construction plans. IHS cannot determine sanitation costs until HUD determines the exact location of its housing sites, and both agencies must wait while BIA decides when and where it will place streets and sidewalks. ^^ Although the three agencies signed an agreement" to coordinate work plans and budget proposals, it appears that no followup has taken place and that relevant input from Indian tribes has not been sought out. Coordination may be impossible, since the three agencies operate on different budget cycles. Maintenance of all facilities, whether new or rohabilitated, is the responsibility of the tribes, who are to receive IHS training for this purpose.^'^ Tribal councils report, however, that such training is in- adequate and infrequent, and that there is confusion over responsibility in its actual execution.^* INIeanwhile, large numbers of householders go without sanitation facilities ; deterioration sets in on facilities which stand unrepaired ; and disease is spread further. Transportation and Access to Health Care In many parts of the United States, Indians live in remote areas where there are no roads, or poorly maintained roads, and no public transportation. ]Many tribal communities do not own an ambulance for emergency service. Harsh, climatic conditions are an aggravating fac- tor in some places. It is. therefore, often a hardship for Indians to get to an IHS medical facility.^^ At the same time, it is uneconomical in terms of the Service's limited staff to send drivers to remote, often in- accessible areas. Most often, it is the community health representative (CHR) who provides the transportation Indians need in order to obtain medical care. The CHR's function is to educate the community in preventive health, hygiene, nutrition, and first aid in the home, and to be the out- reach, paraprofessional link between patient and professional. In ac- tual practice, much of their time is spent in chauffering sick patients. CHR's therefore are left with very little time in which to perform the educational, technical work assigned to them. Already underpaid, CHR's also say that they spend from $100 to $200 a year out of their own pockets for patient-chauffering. Nor are they provided witli lia- bility insurance on their cars. 50 Indian Sanitation Facilities and Services Act, P.L. 86-12, 1950, 42 U.S.C. 2004. 61 The AIPRC Health Task Force survey of tribal councils revealed that sanitation instal- lation by IHS took place anywhere from before a house was finished to 3V^ years. ^2 "Interdepartment Agreement on Indian Housing", Washington, D.C., U.S. Government Printing Office, Federal Register, Mar. 9, 1976, p. 10165. f--! Indian Sanitation Facilities and Services Act, Public Law 86-121, 1959, 42 U.S.C. 2004. =* Of 21 responses to the AIPKC Healtli Task Force survey, eight felt maintenance was the tribe's job ; eight said it was the individual householder's ; and five said it was up to HIS. ^ AIPRC Health Task Force hearing transcripts on this subject are Aberdeen, vol. 7iJ p. 175 ; Billings, p. 12 ; Oklahoma, p. 291 ; Phoenix, vol. II, p. 66; Portland, n. ia' 395 Indian Ntttrition Indians have experienced nutritional problems from the time of lelocation onward. ]Most reservation Indians are poor to start with and tlie fact that most reservations have only one "trading post" store leased by the Federal Government to private parties results in very high uncompetitive food prices. Lack of refrigeration and adequate water supply compounds the problem. The USDA's commodity program has been used on many reservu tions but few commodity warehouses sei^'icing Indian country fully stock all 22 items on the commodity program's list. The lack of avail- able connnodities and the lack of proper storage and cooking facilities in many reservation homes has resulted in malnutrition being wade- spread among American Indians. Also, Indians on rural, sparsley populated reservations do not have the ability to travel long distances to the commodity pickup centers. For all of these reasons, the commodity program has been generally unsuccessful, and in recent years, USDA has been gradually replacing it with a food stamp program. That program, however, has been ad- ministratively miwieldy and is especially unworkable in Indian coun- try. The same Indian who cannot get to the connnodity warehouse cannot get to the food stamp headquarters and cannot get to the retail outlet where food is sold. Application and eligibility forms for food stamps are long, cum- bersome and complicated, and many Indians have difficulty in com- pleting them. Often they do not possess the documents necessary for eligibility. For those who cannot surmount these obstacles, there is no alternative, since USDA does not want to operate a connnodity ])rogram and a stamp program simultaneously in the same community, despite Indian opinion that such flexibility is needed in order to meet diversified needs.^*^ A further complication exists for Indians who live on trust land. Because States and counties often do not understand the applicable law pertaining to Indians, they mistakenly consider trust land as an asset which precludes an otherwise eligible applicant from obtaining food stamps. There are other drawbacks to the food stamp program. First, be- cause food prices at an isolated trading post are higher tlian those at retail outlets elsewhere, a given ration of stamps does not buy as much for the Indian as it does for a consumer in the general population. Second, even though local governments charged with administering the food stamp program receive Federal financial assistance for this purpose, these local entities often must supplement from their own budgets, operate with limited staff, and handle an overwhelming load of recordkeeping. The resentment and frustration they feel often is vented on the Indians who are obliged to deal with them. '■>« Wyman McDonald, Superintendent of the Mescalero Indian Agency, said in a May 18 1076, letter to the Chief of Compliance and Enforcement Division in USDA, that he found it regrettable that "no small minority group such as Indians were permitted to have any special or different kind of program outside the established order." In other v7ords he concluded, "Indians must be just like anyone else." Mr. McDonald also said that after observing and working with both commodity and food stamp programs, he felt that commodities were more beneficial for more Indian people. 396 At present, USDA is phasing out the commodity program and in- tends to implement the use of stamps "nationally", except where it proves "impossible or impracticable". This is exactly the situation in many Indian areas, where applicants encounter a series of barriers mucii like those they have always faced in attempting to avail them- selves of Federal social services. Education in nutrition has been the missing link in every food pro- gram the Government has offered to Indians. Lewis Meriam, in his 1928 report,^^ strongly recommended instruction in nutrition on a comprehensive scale for all Indians and for all non-Indian staff work- ing in Indian service facilities. Panel members at the 1969 White House conference on food, nutrition, and health repeated that view. Indians themselves have repeatedly said that they need and want to learn about nutrition. Yet, in 1974, a nutrition education bill proposed by Senator George McGovern was defeated. The Indian Health Cake Improvement Act (Public Law 94-437) Public Law 94-437 is the most comprehensive Indian health legis- lation ever passed by Congress. The new act is designed to eliminate medical backlogs, to bring Indian health to an acceptable level, and to encourage Indian involvement in that process so that tribes can grad- ually assume control of health care. In its coming effort to improve Indian Health, IHS will have the ad- vantage of Public Law 94-137 funds, plus a guarantee (in that act) that these appropriations will in no way offset other Indian health appropriations to meet present or future needs. Instead of the original Senate version of the bill which authorized an appropriation of $1.6 billion over a 7-year period, IHS will be work- ing with a $475 million appropriation over a 3-year period. This dif- ference of $70 million annually will be a significant disadvantage. Opposition from HEW (IHS' parent body) may also prove to be a serious obstacle to implementation of the Act. Funding will not start until fiscal 1978, however, and will end with fiscal 1980. There are certain other shortcomings in the Health Act, which, if not amended, will surely slow down the transition period. The Act, for example, provides for construction of needed facilities and their staffing, but fails to address the chronic problem IHS has in recruiting personnel. The Act provides a total of $207,084 for facilities-construction over a 3-year period. It also funds positions and money for staff housing,^^ and for direct and indirect maintenance and repair of facilities.^^ Fur- ther, the Act authorizes funds to bring IHS facilities to compliance with requirements of the Social Security Act, so that they are eligible for medicare and medicaid reimbursement.^*' Construction and renovation of water, sewer, and sanitation systems for existing Indian homes are also authorized in the Act.^^ For new homes, however, "such sums as may be necessary" will be appro- ^'' "The Problem of Indian Administration," Baltimore, Md. : The Johns Hopkins Press, 1928. M Title III, sec. 301(b) (1) (2) (3). f^" Title IL sec. 301 (c) (b). «« Title IV, (b) (c). 1 Title I, sees. 101, 102, 103, and 104. 397 priated.^2 After 1980, it will be harder for extensive sanitation systems to be constructed for either type of home without new legislation. The Act fails to take up the important question of sanitation main- tenance and repair. The Indian people have indicated that this vital Imk to efficient facility operation has not been properly handled by IHS in the past. Public Law 94-437 addresses IHS personnel shortages in two ways : First, by appropriating scholarship funds for health professional training; "^^ and second, by appropriating position- funds *^ in cate- gories where the service is known to have heavy backlogs: mental health, dental care, field health, and direct and contract patient care. Four hundred and twenty-five positions and $10,025,000 are authorized for fiscal 1978. It appears that these amounts may be wholly inadequate. For exam- ple, the total identified unmet health needs of the Navajo in 1973, in four categories amounted to some $28 million.'^^ jMoreover, the rigidity of position- funding will not permit the kind of program flexibility called for in the individual, highly diversified service areas. The Act also authorizes the Service to employ scholarsliip students and any other medical students ^^ during nonacademic periods of the year, and it authorizes present IHS health professionals to take leave of absence for professional consultation and refresher training courses.^^ The Act also provides appropriate funds for the construc- tion of staff housing,*'^ the shortage of which has traditionally been a factor affecting high staff turnover. Although the Act fails to provide for current recruitment needs, the Act establishes a comprehensive recruitment program, which is sensitive to overall Indian needs and, with time, should provide IHS with adequate professionals and technicians. The Act also establishes an Indian health scholarship program for Indians and others who will serve in Indian communities. In addition to encouraging study in non-Indian medical institutions, the Act authorizes, in title VI^ a 1 year study of the feasibility of es- tablishing an American Indian School of Medicine. The Act does not, however, fund continuance of IHS' one school of traditional medicine at Eough Kock, nor does it provide for the estab- lishment of additional such schools.^^ To summarize, the Act fails to address the immediate and critical personnel shortage in IHS. No innovative recruitment program is au- thorized; no monetary or other incentives are offered to encourage health professionals from the private sector to enter the Service. IHS staff has a number of peripheral problems which are not ad- dressed in any way by the Health Act. These are : inadequate orienta- 82 Ibid. «» Ibid. « Title II. sec. 201. "^ This amount, although considerably less than the amount proposed (.^lO.SOO.OOO) in HR 7852 (June 12, 1975), is in addition to NIAAA funds which will be transferred to IHS under S. .3184. That bill, passed on June 29, 1976, authorizes IHS to take over those NIAAA alcoholism treatment projects which have become "mature". At this time, it is not known exactly how IHS will use its combined NIAAA and P.L. 94^437 funds. «« Title I, sec. 105(a) (b). «• Title I. sec. 106(a). a' Title III, sec. S01(b)(3). «o Funds are. however, appropriated for the training of traditional medicine men and women in the area of mental health. Title II, sec. 201 (c) (e). 398 tion in Indian language and culture; inadequate educational and rec- reational facilities; lack of support from other Federal agencies; a weak management system which fails to give rewards, offer career advancement potential, or establish clear responsibilities and goals. It is partially because of these problems that morale is low among IHS staff". It is in the area of environmental services that the Health Act is w^eakest, with its focus limited to upgrading and installing water, sewer, and sanitation systems. The Health xict fails to deal with the various shortcomings in the Service's budget and management system, which will adversely affect optimal use of Public Law^ 94— 437's limited funding. IHS is not moni- tored, is accountable to no one, and allocates its budget in a rigid, ffxed manner to area offices and service units without making realistic plans tor meeting actual needs and reaching specific goals.^° Congress shows a willingness to meet the long-neglected health needs of urban Indians (who have never received substantial IHS serv- ice) in title V of the Health Act. The title's language, however, is vague, and the requirements it makes of urban Indian organizations appear excessively demanding. The precise, intended use of the title's accompanying appropriations '^^ is unclear in the language of the Act. Title IV authorizes, through a proposed amendment in the Social Securit}' Act, medicare and medicaid reimbursement to IHS facilities. IHS is offered no guidance or funds, however, in setting up, operating, and monitoring such a reimbursement plan. Public Law 94-437 gives but scant attention to health needs of rural, otF- reservation Indians. Two pilot projects providing outreach services are authorized, at a cost not to exceed 1 percent of the amount au- thorized in sec. 506 for urban Indians."- Maximum, yet realistic Indian involvement is encouraged through- out the Act (even to the extent that Indians be consulted as to the design for service facilities). Indian firms are given preference, under the Act, of constructing sanitation facilities and are to be paid at pre- vailing wage rates. Indians are also given priority for scholarship awards, and further, the Act authorizes a study on the feasibility of establishing an American Indian School of Medicine and appropriates funds for the training of traditional Indian practitioners. Past history has shown, however, that Indian involvement is dif- ficult to implement. The Congress has not touched upon the necessity for consistent, aggressive coordination between Indians and related Federal agencies to insure maximum Indian input and participation. There are three health issues centering particularly on unique Indian needs — issues in which Indian involvement is crucial to success. These are mental health, drug and alcoholism treatment, and traditional medicine. Indians, not Federal agencies, can deal effectively with other Indians who are mentally ill or addicted. The Act's appropriation for '^'' The National Coiifrress of Americnn Inflians. at its Oct. 22, '197f! annual convpntion in Salt Lake City, deplnred that: "In order to assure an adequate authorization level throujrh the life of the Act, ConpresR will need to he satisfied that appropriated funds are being utilized with maximum efficiency ... A review of the past performance of IHS. . . . would indicate that major changes in the management of IHS will need to be effected if the intended results of Congress are to be realized." •iTitleV, sec. 50.3(a) (1) through (9). " Title V, sec. 508. 399 training of traditional Indian practitioners in mental health, there- fore, seems disproportionately low. The Indian will be the ultimate beneficiary of any improvements in health care accruing from Public Law 9-1—437. Yet, Indians, as pa- tients, appear to have been neglected in the act. They have stated in repeated testimony that the service they now receive from IHS and alternate sources is not truly relevant to them. Xon-Indian medical methods are alien, and Indians are the ones who have had to adapt, rather than vice versa. Health professionals liired by the civil service do not speak their language. Many ignore Indian values and needs. Indians feel ""processecl" and rushed when examined. And, they are even denied services to which they are entitled simply because a given clinic lacks doctors, or equipment, or money. Indian resistance and hostility, in turn, create morale problems in the medical staff, and the present delivery system represents frustration for everyone. General Eecommexdatioxs Tlie Ccyinmission reccmimends that: Indian Health Service (IHS) establish a formalized mechanism through which IHS officials can work closely with Indian people to- ward the successful implementation of Public Law 94-437. Congress appropriate sufficient funds for the continuance of present Indian centers in urban areas which asist Indians in obtaining medical and other social services ; and sliould encourage, with funds and guid- ance, the establishment of additional such centers in all urban areas where Indians live. Congress create in the Office of Civil Rights (OCR) a monitoring and enforcing division targeted at discriminatory urban health providers. IHS receive supplemental fundings for providing outreach medical care to isolated, rural Indians. Congress hold oversight hearings regarding the implementation l)y IHS of the Indian Self-Determination and Educational Assistance Act (Public Law 93-638). A. FACILITIES The Commission recommends that: Congress hold oversight hearings to deteiniiiie Indian needs in tlie areas of health care facilities, construction, and maintenance and ap- propriate sufficient funds to meet those needs. Congress hold oversight hearings to ascertain the succes-;^ of mobile health vans at the Xavajo and Rosebud Reservations and over TV satellite formerly used in Alaska : and determine whether these pro- grams should be expanded to isolated, inaccessible areas. B. STAFFING The Commission recom/mends that: Congress hold oversight hearings to ascertain the problems regard- ing the high turnover in personnel at IHS and act to remedy these problems. 400 Congress create a medical para-professional corps to be used on Indian reservations, particularly in the areas of alcoholism and mental health. IHS be funded to allow the expansion of present training programs so that they are located in individual service units and geared to specific staff shortages in those units. Congress appropriate funds for on-going orientation programs to educate IHS employees in Indian culture, and to provide for Indian interpreters in all service units^ C. BUDGET AND MANAGEMENT The Coin/mission recom/mends that : Congress request the General Accounting Office to conduct a man- agement study of the Indian Health Service and periodically to audit all IHS services. The executive branch direct all Federal agencies to report to Con- gress on problems regarding the coordination of budget cycles and, if necessary, request legislative reform. D. HOUSING The Commission recoTmnends that: Congress reorganize the Indian housing program and give one agency the primary responsibility for coordinating and administering the program. Upon establishment of a new independent consolidated Indian agency, as recommended in chapter VI of this report, all In- dian housing programs should be transferred to that agency. E. TRANSPORTATION The Goimnission recommends that: Congress direct IHS to report on tribal needs for fully equipped ambulances and other vehicles to transport nonemergency patients on reservations and should then appropriate necessary funds to provide such services. r. NUTRITION The Commrhission recommends that: The Department of Agriculture review and revamp its food supply system to insure consistent delivery of nuti-itious, health-giving goods to the Indian people, with particular emphasis on high-risk groups such as infants, children, pregnant women, the elderly, and the handi- capped ; and, to insure the simultaneous use of both food stamps and donated foods for those tribes desiring it. BIA replace the monopolistic trading post, with its high prices and inferior stock, with as many efficiently managed food stores as are needed for accessibility by Indian people wherever they live on the reservation. These stores should be under Indian management. The executive branch upgrade tribal programs for education in the areas of hj'giene and nutrition. 401 G. ALCOHOLISM AND DRUG ABUSE The CoTnmission reeormnends that : IHS upgrade the demonstration projects heretofore administered by Xational Institute on Alcoholism and Alcohol Abuse. Education introductiox Education for Indian children has been, traditionally, a family- tribal function where they are taught by the community those skills and values needed to function within the child's particular tribe. For- malized, classroom education with textbooks, teachers and school- houses was imposed on Indian youth by non-Indians in an attempt to assimilate them into the dominant culture. The Federal provision of education for Indians is a treaty right of many tribes, and clearly a service component of the trust-relationship. Education has been consistently used as a tool of Federal policy to im- plement the Federal Government's vacillating plans for the fate of the Indian people. Today, both Federal and Indian educational pri- orities are aimed at self-determination. Basic questions must be asked about the effectiveness of the Federal effort when school systems do not reflect that policy. The primary agencies controlling Indian education are : 1. The Office of Education under HEW which administers the Federal Impact Laws Public Law 81-874 and Public Law 81-815, and the Elementary and Secondary Education Act titles I, II, III, and IV; 2. The BIA which administers assistance through provision of Johnson-O'Malley funds, directs school operations for BIA schools, and supports career development programs ; 3. State departments of education which are not only obligated to educate Indian children as citizens of the State in their public schools, but also are the recipients of Federal funds targeted for the specific education of Indian children ; 4. And school boards which manage, on the local level, funds designated for each school. The newest, and paradoxically the oldest, participant in Indian education is the tribal community. It is clear that the return of con- trol of Indian education to the Indians is an overriding priority. The manner in which this is carried out should be decided by the tribal governments so that tribes may insure their continued control. BACKGROUND Indian education has been the focus of much concern. Although legislation has been passed to alleviate some of the problems in In- dfan education, many remain unresolved : A. The Indian populaton is substantially less educated than the non-Indian population. B. The education provided for the Indian population is often irrelevant to both its needs and culture. 402 C. Indians educated in public schools often fall 2 to 3 years behind their non-Indian counterparts in achievement levels. D. The educational bureaucracies often expend the majority of their efforts seeking funding rather than developing relevant edu- cational programs for Indians. E. Most important — the majority of Indian people have no mechanism for input in the education of their children. In order to understand where Indian education stands today, it is necessary to trace the policies underlying Indian education and the historical events that have shaped the current situation. HISTORICAL The first non-Indian efforts to "educate" Indian children were made by missionaries in early colonial times. Their attempts to as- similate Indian people centered on Christianization. This movement eventually led to the establishment of manual-labor boarding schools that re]noved Indian children from the influences of their communi- ties and tribal ways of life. The next stage was the development of Federal schools on and off the reservation. In this century inteo;ration into the public school system was established to insure assimilation. Early scattered missionary and humanitarian workers in the late 17ih and 18th centuries sought to teach Indians the rudiments of ''civilization", and the result of this concerted effort was the estab- lishment of more than 15 schools. Educational efforts occurred at the level of higher education as well, as evidenced by early programs at Dartmouth. Harvard, and William and Mary. The early part of the 19th century saw a number of Federal actions regarding "education. Treaties made during this period and later fre- quently provided for educational services to the tribes. Promises were made for general education purposes, teachers' salaries, construction and maintenance of school buildings, support of manual labor and industrial schools, instruction in agricultural, mechanical and indus- trial arts, school supplies and materials and general funds for edu- cation. The Trade and Intercourse Act of 1802 endorsed and provided funds for these objectives. In 1818. Congress created the Civilization Fund. The objectives of this Act was to provide funds for the civilization of all Indians, rather than dealing with individual tribes through treaties. This was in- tended to incorporate Indians into the mainstream of society. The Civilization Fund was the impetus for many investigations into the conditions of Indians. In 1822, Jedidiah Morse, a minister, made an inspection of the tribes to ascertain their general condition and progress in education. He reported that "education families" (usually associated with religious denominations or missions) were to be, "the great instruments in the hands of the government for educating and civilizing Indians." " Within a year, these schools were operating "successfully", i.e., teaching Indian children how to survive in a 19th- century capitalistic society. ' At the time these mamial-labor schools were being organized, the Five Civilized Tribes were removing their children from State-run "s Tprlifliah Morsp "A Report to the Secretary of War of the U.S. on Indian Affairs", New York ; A. M. Kelly 1970, p. 79. 403 schools and bringing them back to tribally financed operations. By 1849, this system was one of the few exceptions to the missionary- run school. The year 1851 saw the initiation of the reservation settlement pe- riod. For the next 20 years, reservation settlement of Indian tribes was enforced. The overriding concern of the Federal Government at the end of the Civil War was to "clean up" the Indian Bureau and to bring remaining hostile Indians onto reservations. The new Pres- ident, Ulysses S. Grant, used the churches to take up civilizing and educating Indians. In 1869 President Grant initiated a Board of Indian Commissioners "to cooperate as an inspectincr and advisory body.'- '* These Board members took the responsibility of hiring Indian agents of "Christian character" who represented various denominations. At the same time treaty making ended in 1871, the Board of In- dian Commissioners called for more precise policy on the operation of schools for Indians. Tlie Commissioner of Indian Affairs also noted in 1885 that removal from place to place had prevented Indians from acquiring settled habits or a taste for civilized pursuits." In 1870, an appropriations bill was passed "for supj^ort of indus- tiial and other schools among Indian tribes not otherwise provided for." This Act brought Indian education more directly under the con- trol of the Indian agent and stimulated tlie establishment of govern- ment schools. These schools were designed to direct Indian children toward the white community. Indian culture, religious values, and tribal environment were undercut by agents and churches at the tribal level. After the reservations were under the conti'ol of the Indian Bu- reau, certain Members of Congress and the Board of Indian Com- missioners began advocating a more "humanitarian civilizing policy" toward Indians, whicli ironically led to the allotment era.^^ This period of allotment separated clans, defied tribal authority, and arbitrarily identified Indians and saAv the major growth of off- reservation boarding schools. Colonel Pratt, Director of Cailisle Indian School (tlie classic ex- ample of an Indian boarding school), believed older Indians were beyond hope. However, if young Indians were separated fi-om their culture and the influences of their tribe, they would become function- ing Americans. Although the early allotment period saw the expansion of the Fed- eral school system in institutions like Carlisle, the programs did not appear, by 1901, to be having the desired impact on the Indian peo- ple. Commissioner W. A. Jones called for a shift fi-om nonreserva- tion boarding schools to on-reservation boarding and day schools. This attitude was also supported by the next Commissioner, Frances Luepp, Avho campaigned to construct schools to "carry civilization to In- dians . . . (not) the Indian to civilization." '^ T* "Annual Report of the Commissioner of Indian Affairs for the Year 1879", supra, note 25. pp. 4-5. " Ihid. ''^ Hearinps hefore the Committee on Indian Affairs, House of Representatives, 73d Cong. 2d SPSS., on H.R. 7702, Washington, OPO, 19.34. "' "Annual Report of the Commissioner on Indian Affairs for the Tear 1907." p. 21-.')0. 404 The next major change in educational policy came in 1910 when there was a sliift of emphasis to public education. Contracts were made with public school districts for the public education of Indians. The BIA also mandated the adoption of public school curricula in tlie Government schools. By 1912, the number of Indian children in public schools was larger than in Government schools. Further encouragement to place Indian children in public schools came with the 1924 Act declaring all Indians citizens. States were e7icouraged to treat Indians equally with other citizens and encour- aged Indian people to accept the same duties and responsibilities as other citizens, including public education for their children. The same year, a "Committee of One Hundred Citizens" was called together by the Secretary of the Interior to discuss ways to improve the Indian Service. The BIA acknowledged but did not act upon the committee's recommendations. "The Problem of Indian Administration" (The Meriam Report), issued in 1928 pointed out the shocking conditions in the boarding schools. The report called for an end to the enrollment of elementary school children in boarding schools and an increase in the number of day schools. The report supported Indian cultural diversity and advocated the use of education as a tool to reinforce this. When W. Carson Ryan, education specialist of the Meriam Report, became Director of Indian Education for the BIA, he sought to de- velop a more responsible education program. Ryan's efforts included : organizing a community school system on the reservations, increas- ing Federal-State education contracts for Indian children attending public schools, phasing out boarding schools; and extensively revis- ing the curriculum. The curriculum was to be organized to teach basic skills and incorporate cultural traditions and art. This attitude carried into the decade of the 1930's when Commis- sioner Collier sought to improve existing schools and develop day schools that would work with adults as well as children and thus be- come community centers. The Johnson-O'Malley Act was passed in 1934, giving the BIA power to contract with States for special education services. This law permitted a single contract with the States rather than the hundreds of contracts with local school districts which had been necessary. As well as contracting powers, the States were recipients of Federal dollars to operate these services for the benefit of Indians. A condition in the California contract has a particularly pertinent statement " (The State of California) agrees to afford special courses in Indian arts and crafts, to provide an educational program designed to meet the special needs of the Indians ... to the end that the program shall take adequately into account the Indian community life, shall be based on Indian economic, health and social needs, and shall encourage Indians' participation." The formalized pattern of Federal-State activity in Indian education established by Johnson-O'INIalley continues today. The Wheeler-Howard Act of 1934 (the Indian Reorganization Act) formalized the Government's policy of supporting undergraduate and graduate education for Indians. It extended Govenment assistance in the form of loans to Indians who wished to attend nongovernmental vocational, trade, and high schools as well as colleges and universities. 405 This period of support for Indian tribes, their education, their cul- ture and their economics ended after World War II under the belief that Indians were prepared for equal participation in American life. The Hoover Task Force on Eeor^janizing the Executive Branch recom- mended in 1949 that the '^Federal Government relinquish its responsi- bility over Indians to the States." This trend resulted in the Federal policy of termination, formalized by Congress in 1953 in H. Con. Res. 108. This affected Indian education by shifting the responsibility from the Federal Government to the States. In the 1960's, increased emphasis on self-determination brought attention to the need for widespread reform in Indian education. The report of the Special Subcommittee on Indian Education (Kennedy report) "^ resulted in passage of the Indian Education Act, Public Law 93-218. It provided formula grants for special Indian education pro- grams by adding a new title III to Public Law 81-874. The law also stressed community control and self-determination. Congress recognized in Public Law 93-638 (1975) the need for Indian self-government and the concept that Indian self-government depends upon Indian control of Indian education, when it passed Public Law 93-638, title II in 1975. Known as the Indian Self- Determination Assistance Act, the new law reformed the Johnson- O'Malley Act of 1934 by providing a new design for Indian education contracting. The implications of this new legislation are lieginning to be felt by the tribes. To date, BIA provides contracts for 25 schools and the Office of Education funds 26 schools through title IV, part A, of the Act. "The rapid growth of the movement toward Indian schools itself indicates the readiness on the part of many Indian communities to accept the inherent responsibility in spite of the bureaucratic drawbacks." ^^ BIA AND EDUCATION The Bureau of Indian Affairs operates a scliool system that supports 213 elementary and secondary schools, 77 of which are boarding schools; 3 postsecondary institutions; 19 dormitories for Indians attending public schools; and adult education programs. The BIA spent $243,590,000 on education in 1976. BIA schools and programs are attended by 50,000 of the total 200,000 Indian children attending school. Approximately 9,000 school-age children are unable to attend school due to lack of facilities. BIA also administers $27 million in Johnson-O'Malley funds earmarked to supplement programs for Indian students in public schools. The BIA's major educational activities include: directing BIA school operations and assisting public schools through provision of Johnson-O'Malley funds and career development activities. The Office of Education has 2 organizational divisions: (1) the Washington, D.C., staff works as a liaison; (2) the Indian Educa- tion Resources Center in Albuquerque provides assistance. ■"^ Indian Education : A National Tragedy — A National Challenge. Tfl Dr. Myron Jones, "Non-LBA Controlled Schools" a position paper, Jan. 1977. 406 The structure of the BIA's Office of Education does not allow ade- quate input from local people. The BIA's Office of Education is poorly structured. Because of the centralization of decisionmaking processes, decisions are made without adequate local input. For example, it is the Commissioner of Indian Affairs rather than the Education Di- rector who is responsible for directing support into critical areas. Some effort has been made to correct this problem. In 1972 a "re- direction of BIA programs" was announced. A 5-point plan was designed to assist Indians "toward self-determination through eco- nomic, educational, and social development on reservations." ^^ The intent of this program was to "become truly responsive to the needs of Indian children and parents. Control should be in the hands of the Indian communities. We hope to have at least half of all BIA schools under Indian directors by 1976." ^^ Although no policy direc- tives were stated in the BIA manual, a number of memoranda on Indian contract schools were issued by the Director's office. Six contract schools were created during Commissioner Bruce's administration over the objections of the area directors. Congressional oversight action was neecssary to force movement on the part of BIA. In spite of the President's and Commissioner's support of Indian- controlled schools, there was no operational policy toward this end. As a result, there are now only 25 schools under contract, 8 of which were formerly BIA schools and 17 previously private, but not run through a tribe or tribal organization. Initially the Johnson-O'Malley Act was designed to assist local public schools in paying the costs of educating nonreservation Indian students. This money was provided, in lieu of taxes, to assist in paying the basic support costs of school operation. As time passed, greater numbers of reservation Indians began to attend public schools. Con- gress, seeing a need to provide special educational services to these Indian students amended the Johnson-O'Malley program. The pres- ent Johnson-O'Malley law calls for a slow phase-out of all basic sup- port programs, so that in a short period of time, Johnson-O'Malley will solely be providing monetary support to special Indian educa- tional programs. During the 1970's, Johnson-O'Malley appropriations increased from $7 million to $27 million a year. In fiscal 1976, Johnson-O'Malley funds supported programs for 115,000 Indian reservation students taking part in basic skills programs, remedial work, specialized reading, and cultural enrichment. These funds also included funds for parental in- volvement, parental costs for students, and home-school coordination. In recent years there has been debate on whether to use Johnson- O'Malley funds for basic operating moneys or for supplementary education programs. Congress amended Johnson-O'Malley in 1975 to permit contracting of educational services by tribes and Indian orga- nizations, and to permit continued contracting by States. Today, pres- sure from tribes and organizations has redirected Johnson-O'Malley 13rograms to supplemental services rather than basic education. Sev- eral evaluations by private organizations have shown a need for closer 80 Louis R. Bruce, The Bureau of Indian Affairs, 1972, p. 243. 81 Louis R. Bruce, The Bureau of Indian Affairs, 1972, p. 247. 407 monitoring of Johnson-O'Malley funds. Despite legislative controls, Federal moneys are still being used to replace basic funding. Instead of finding new supplemental approaches to Indian education, most schools reinforce their basic program approach and the Federal pro- grams become remedial. Many educational policies announced in Washington have not reached the people for whom they were intended. Many critical areas of education have not been evaluated through examination of tribal and community needs. And there has been little effort to organize a policy based on Indian involvement in meeting educational goals. THE GFF-KESERVATIGX BOARDING SCHOOL The boarding school has been the primary educational tool of BIA for the last 100 years. There are now some 17,333 elementary school cliildren and about 9,431 high school students enrolled in Federal boarding schools. Of these, 19,988 attend schools on reservations and 6,776 attend off-reservation boarding schools.®- In 1969 the Special Senate Subcommittee on Indian Education called Indian education a "National Tragedy and National Challenge'' (the Kennedy report). An area that the report studied closely was the Federal boarding school. It said that in 1969 : More than 1.200 Indian children attended school in 29 off-reservation boarding schools. (They) are frequently transported hundreds of miles, far away from family life, tribal value, standards, and customs, a vast majority of them are labeled by their teachers as misfits, underachievers, or troublemakers and atti- tudes of school ijersonnel insure that they will never be considered otherwise while in school. The report described the Bureau of Indian Aff'airs' ofl'-reservation boarding school programs as follows : One is the regular school, which provides the students in residence there with a course of study leading to a high school diploma. The other provides dormitor.v facilities for students participating in the border town program, in which stu- dents live at BIA dormitory facilities and attend nearby public schools. Fre- quently, the two programs are operated concurrently in the same facilit.v.^^ Students are referred to off-reservation boarding schools by local reservation social workers and superintendents. At the time the Ken- nedy report was made, the education and social criteria outlined for boarding school students clearly indicated that they had special be- havorial and language problems. The Kennedy report identified other recurring problems in the ofl'- reservation boarding school system. There is confusion over how indi- \ddual schools fit into the overall goals of BIA. While administrators know the composition and problems of their student body, they feel helpless in dealing with those problems. The boarding school cur- riculum is not responsive to student needs, nor does it meet the most basic standards for a meaningful education. Teachers and guidance personnel are often "old line'' bureaucrats who have been with the Federal school system for a number of years.^* 82 Educational statistics supplied by Tonl Pierce, Education Division, BIA. (Subject to change), August 1976. ^ United States Senate, "Compendium of Federal Boarding School Evaluations", 1969, p. 25.S. ** Ibid., pp. 257-258. 408 After the Kennedy report, various visiting committees appointed by area directors and api^roved by the Commissioner of Indian Affairs evahiated programs, administrators, teachers, facilities, and other aspects of boarding school life. They visited 15 schools from 1971 to 1974 and found shortcomings in every school, except the Concho Elementary School. The Education Office of BIA conducted a similar survey in 1975. It supported the fuidings of the visiting committees and Kennedy report. Specifically, it said that the majority of students surveyed were recommended on the basis of educational and social criteria outlined in the BIA manual.^^ At secondary boarding schools, surveyors heard that "entering students have average or above average intellectual ability, but range from 1 to 3 years behind the level of basic skills involved in math and language.^*^ The survey revealed some progress. Elementary schools had orga- nized programs to respond to students with special learning difficul- ties. Funds from the Elementary and Secondary Education Act have been used to add basic skills, specialists, cultural enrichment, coun- seling, and guidance efforts for students. The survey offered a series of recommendations, including the fol- lowing : Policy. — Establish clear missions and goals for the schools based on the needs of students. Organize an admittance and transfer policy for students in each level of school : elementary ; secondary ; and post- secondary. Personnel: — ^Area offices should maintain civil service registers of potential employees to permit more efficient filling of vacancies. Hire sufficient diagnostic staff at each school to meet student needs. Each institution should have a program development and evaluation specialist. Finance. — Establish a method for equitable funding. Standardize accounting procedures and fiscal reports. Student Services. — Devise and maintain a uniform system of stu- dent enrollment and withdrawal records. The various reports, along with research by the Eeview Commis- sion's Education Task Force show that little progress has been made in boarding school education in the 7 years since the Kennedy re- port. None of the Kennedy report's recommendations have been adopted. In that time, there has been student unrest in practically every off-reservation boarding school. A number of lawsuits have been brought against the Bureau by the National Indian Youth Council and several Indian parents. The unrest and lawsuits indi- cate strongly that students are dissatisfied with the education. Yet many Indians fear that change in the boarding school means that the schools will be taken away completely rather than improved. The area of boarding school policy has been neglected by both the executive and legislative branches of government and avoided by BIA. Even the Bureau's policy of "closest to home" education for Indian children has been overlooked according to the Bureau's own statistics. 85 BIA manual, 62 lAM 2.5.2. (A, B). 8« George Underwood, "Off Reservation Boarding School Survey", Apr. 1976, p. 8. 409 It is necessary to reassess boarding schools and their objectives. What is the purpose of a boarding- school? What is the makeup of its student body ? Can the boarding school facilities be better utilized to serve the student? Is there a better alternative? UNITED STATES OFFICE OF EDUCATION Another Federal educational agency affecting Indians is the United States Office of Education. This agency provides funding for the edu- cation of 140,000 Indian students, 100,000 of whom are in public schools. This support comes from a number of legislative authorities and is for the most part administered by the U.S. Office of Educa- tion through State school systems to local school districts. The Office also funds a number of Federal programs with direct grants to local school districts, bypassing State departments of education. USOE programs fall into 3 categories: (1) those designed to solve critical education problems, all of which are intended to be available to Indian students; (2) those designed to meet the needs of Indian students only, under Johnson-O'Malley and title IV, part A of the Indian Education Act; and (-3) those designed to compensate schools for the education of nontaxable students. (Public Law 81-874 and Public Law 81-815). Federal money for the first two t3^pes of pro- grams cannot supplant other sources of funds and receipt of the money requires special program development.^^ While USOE involvement in Indian education is fairly recent, im- portant legislation in the last two decades had strengthened its role. That legislation includes : 1. In 1953, the amendment to the Federal Impact Laws (Public Law 81-874, Maintenance and Operations, and Public Law 81-815, School Construction), making schools with Indian children eligible for impact aid dollars. 2. In 1965. the Elementary and Secondary Education Act : Title I: Financial assistance to meet the special education needs of educationally deprived children. Title II : Financial assistance to carry out new and imaginative elementary and secondary programs designed to meet the special educational needs of children of limited English-speaking ability. 3. In 1972, the Indian Education Act : Title IV : Created the Office of Indian Education within USOE and thus defined USOE's responsibility to serve Indians as Indians rather than members of a broadly defined target popu- lation. 4. In 1974, Public Law 93-280, the top priority funding for Indians revised the entitlement and payment stiiicture of Public Law 81-874 to include 10-15,000 more Indian students under impact aid fund- ing ; thus providing an additional $2 million Federal aid to the schools they attend. USOE administers and manages 110 education programs which pro- vide a wide range of services to the general public. As United States '^^ Dr. Myron .Tones, position paper, "Special Programs vs. Basic Programs in Local Edu- cation Agencies", Jan., 1977. &2-185— 77 27 410 and State citizens, Indians may in theory apply for any USOE serv- ice for which they meet eligibility requirements. In practice, however, Indians participate in or receive benefits from less than 40 percent of the prog-rams and only 2.3 percent of the USOE budget is spent on services to Indians. Given the critical needs in Indian education, this low percentage figure seems incongruous. Each USOE program has an administration and management struc- ture of its own that has been defined by its many enabling laws and USOE administrative policy. Nevertheless, many program objec- tives overlap. While programs share objectives, they differ in the form of services provided. "When these services are categorized, it be- comes evident that only a portion of those funds benefiting Indian- people are spent for direct instructional services.^^ The problem that dominates the administration of USOE services to Indians is the lack of an adequate management information system to handle the collection and storage of data on Indians. Without it, much information has to be based on estimates.^^ Data discrepa.ncies and questionable accounting methods inflate the amount which USOE actually spends on Indian education. A second question is why the USOE money that does reach Indians has not had a greater impact. Frequently USOE programs are aimed at broad groups, such as the "disadvantaged'', and only serve Indians as a segment of that group. Such programs ignore the Indians cultural and linguistic background. Many progTams are limited by specific legislative lan- guage defining the" strategies for implementing programs : Administra- tors often adopt this language as funding guidelines and leave little discretion in the program for people at the local level. More general Innguage would permit individualization of services to meet theneed^ of program reciiiients. Local educational agencies can also delay fimding. If legislation creates programs through State grants, the allocation of funds to local education agencies or services entities will be made by the State depart- ment of education. Tlie degree to which Indian people benefit from such funds depends solely on the degree to wdiich each State has as- sume4 an advocacy role in Indian education. This structure of funding general education needs through State en- titlement and block grants is not suited to meeting the varying needs of the Indian community. This system assumes that after a State or local body has been able to design an educational model and assemble instructional materials through Federal funding, it will continue to fund these programs. This often has not been the case. ISIany programs were allowed to go out of existence. The communities serving Indian education lack the skilled professionals in education planning and administration to manage grants. They also do not have adequate local, taxable resources to finance Federal programs. For those reasons. Federal funding is a temporary means of providing supplemental services for Indian children, but is not a solution to educational and economic problems. ^ See ch. 4, Federal Administration, section charts on USOE for further information. 88 See ch. 4, Federal Administration, section on reliability of data for examples. 411 Often USOE services miss their targets and only reach Indians co- incidentally or indirectly.^° Stronger direct lines of comnmnications must be established between tribes and communities on one hand and the Federal sources of fundings on the other. USOE policies and ad- ministrative structures nnist support and enhance the development of skills and resources on the local level to promote tribal control. And each program's enabling legislation must be amended to target direct services to Indian tribes and communities. A comprehensive legislative package is needed which insures tribal and community control and institutional deliver}' of Federal aid to the tribes. THE STATE EOLE : P0SITI\^ OR NEGATIVE ? An examination of the States' role in Indian education reveals needs, disparities, and inecjuities in the system. The States generally feel no special responsibility to Indian children. As a result. Federal funds targeted for Indian children through the States often are not received or arc used for basic education rather than for supplemental Indian programs. Federal funds are diminished by State administra- tion costs and are not adequate to meet specialized State and local needs. Special provisions for teachers and administrators trained in Indian cidture are almost nonexistent. Certification of individuals recognized by tribal authorities as experts in Indian culture is not allowed in most States. And there is little effort made to form Indian studies programs in schools with high Indian enrollment. As educa- tion is turned over to the States, a need remains for the Federal Gov- ernment to insure adequate education of Indian children. The States first took on a significant role in Indian education with the extension of citizenship to Indians in 1924 and the Johnson- O'Malley Act in 1934. In examining the problems and needs of Indian education at the State level, the Review Commission's Task Force on Education conducted a survey of the service delivery process.^^ The majority of States responding ^- to the questionnaire described their lole anrl responsibility in educating Indian children as the same as for all children, regardless of ethnic background. Most States viewed the Federal Government's role as that of a funding agency only. The States seldom identified Indian children for the purpose of receiving general education and there appeared to be no standard procedures for identifying Indian children to receive special education services. Onlv seven States had statutes relating to Indian education and only three States had prepared research studies on Indians since 1969. Two States had provisions for training Indian educators, and very few had provisions for certifying Indian cultural resources persons. A number of States were training teachers in human relatioiis. but this training was not established specifically for Indian educators. Only Nevada had any provision for training of teachers or achninistrators in the study of the American Indians. A majority of States saw an increas- ins: role for Indian triljes, communities, and parents in the education ^' Spe footnote 16. - For further information see sec. IV. "State Policies and Finance" Task Force V report. »•- Many States did not respond to the questionnaire or certain questions. Thus, tabula- tions do not reflect input from all States contacted. 412 of Indian children. Several States indicated that the role of Indian and other ethnic parents should not differ from that of other parents. The siir\ey showed that States would be op}:>osed to any Federal programs that would bypass them and provide funds directly to the tribes or connnunities. This attitude is important to bear in mind when looking at the State role in educational jDolicy and finance.^^' New finance laws in some States have permitted increased spending in many poor school districts, but significant disparities still exist. Indians usually attend schools that are in poor districts, and while the expenditure per Indian pupil in ])ublic schools has risen from 1969 to 1975 the gap between this figure and the per-pupil expenditure for non-Indians remains. The a^•ailability of State or Federal financial resources determines whether any ]irogram can meet the special education needs of Indian students. If the special needs of those Indians in public schools is unmet, the blame lies with local. State and Federal mechanisms which channel funds to school districts and to special programs for Indian students. The Review Commission's Task Force on Education determined five significant reasons for the failure of Federal and State funds to meet the needs of Indian students in public schools. They are (1) Fiscal inequality among the States and the school districts within the States ; (2) school districts with significant numbers of Indians are usually among the poorer districts and have limited local resources; (3) in most States. Indian students are widely dispersed, which hinders de- velopment of special programs to meet their needs; (4) most Federal programs with significant resources do not have provisions to assure that funds will be directed to programs for disadvantaged Indian students; and (5) Federal programs that have provided the bulk of Federal money to school districts with Indian children have declined in funding. A study was made recently on the effectiveness of Federal funding administered by the States for Indian children. Based on a detailed analysis of school districts, the study found that the existing methods of school financing do not assure Indian children of equal per-pupil expenditure or an adequate basic education program. This lack of basic support is the reason Federal supplemental and special programs are necessary. The study was critical of the money distribution patterns of legisla- tion aimed at improving Indian education. When discussing impact aid, P.L. 92-874, the study noted that the Indian Education Act does not provide adequate funding for basic education needs. This Act doCvS not take into account the extra costs associated with educating reservation Indians who often must travel great distances to school. The study was also critical of Johnson-O'Malley for the lack of equi- table distribution formulas or any formulas at all. Of title IV, Indian Education Act, it found that title IV programs are used to fund activities that have other funding sources. And of title I, Elementary and Secondary Education Act, the report found that Indian children 8« Sec. IV, "State Policies antl Finance" Task Force V report. M S. Smith and M. Walker, "Federal Funding of Indian Education : A Bureaucratic '^J^^"}^"-_J^^^'^i,^'^- ^' T-esral Act on Support Project, Bureau of Social Research, Inc. (Washington, D.C., May, 1973). 413 were not receiving an adequate share of funds to meet their needs and that Indian parents have little or no say in program matters.®* Dr. Myron Jones in his position paper, "Federal Eesponsibility for Indian Education", suggests ways Federal pressure can be brought to bear against States not providing adequate education for Indian children. They are: (1) Lawsuits for racial discrimination where it can be proven: (2) withdrawal of categorical aid; (3) withdrawal of Public Law 81-874 funds ; and (4) imposition of stricter regulations on the use of Public Law 81-874 money so that in mixed Indian and non-Indian districts, teachers, facilities, and curricula for Indiana must be demonstrated to be at least as good for non-Indians. COALITION OF INDIAN -CONTROLLED SCHOOL BOARDS One of the fastest growing movements in Indian education is the Coalition of Indian Controlled School Boards. Organized to promote Indian control of Indian education without State or district regula- tion, the Coalition defines an Indian-controlled schools as : A school whose policy setting management is carried out through a duly-elected school board composed of Indian people from the community which the school is serving. The heart of control of a school is that the Board is managing every aspect of a school system, including the funds that a school system received.*^ Although the Indian peof)le consider such schools educationally successful, major problems still exist because of a lack of adequate physical facilities and funding. Despite these inadequacies, many communities are using these schools to educate and revitalize the wliole communit}'. Testimony before the Eeview Commission's Task Force on Educa- tion indicated that one of their most pressing concerns was for mainte- nance of Indian culture, history, and language. Manv witnesses suggested Indian people in teacliing positions as a major step in reaching this goal. The presence of Indian elders in the school would make Indian history and culture an integral part of the school curriculum. The movement toward Indian control is the most significant clevelop- ment in Indian education, but there are three major difficulties :_ (1) The long-range policy of assimilation and the effort to move Indians into public schools; (2) varying policy and principles toward respect and use of Indian culture; and (3) Federal rules, regulations and priorities intended to implement policy but, which in fact, restrict this policy.^*' If these obstacles can be overcome, Indian-controlled schools will restore self-image and interest in Indian life among Indian youth. These schools are lowering the dropout rate and restoring responsi- bility and discipline among Indian young people. They are graduat- ing young people who have solid basic skills and a positive self and community image. Indian-controlled schools represent a first step towards an institu- tion that can serve not only the young but the whole Indian community. ^5 UnpnWishPfl hparings of Task Force No. 5, Washington, D.C., June 21, 1976, CICSB. StatPTiif'iit. part II, p. 1. «8 Unpublished hearings, Washington, B.C.. p. 377. 414 ACHIEVING TRIBAL CONTROL Because education is clearly a jurisdictional right of the tribe, the tribe should have the right also to control educational moneys provided for Indian children by the Federal Government. This will not be easy to accomplish. According to one observer: "Tribal involvement in education has been for the most part occasional and uncoordinated. Many title I-IV and Johnson-O'Malley programs have parent committees to provide tribal involvement in public school affairs. But these groups often find this task beyond their capability — either because of the closed position of the public school administration or because the committee members have not the time, training, or information to represent adequately their tribe's total educational needs." ^^ "Tribal divisions of education have done an impressive task on some reservations in identifying and addressing educational needs on a systematic basis. On the whole, however, tribes have yet to ap- proach the level of involvement needed to insure that their children would receive quality educations." ^^ One area of tribal concern is how extensively they should become involved with the educational process. Many believe the ideal situation is Indian control of their own schools and school systems. Many tribal leaders feel that to maintain a strong tribal government educational decisionmaking should be housed in the tribal leadership. On the other side, local school representatives and community people think the schools should be run by the people who are directly affected — the students, parents, and administrators. Other plans fall between these extremes. The important point is that the tribe has the right to decide. Many tribes do not feel large enough or knowledgeable enough to support their own schools, but they still want to be involved. Such a tribe may decide to track and administer all Federal funds affecting Indian children. These tribes could make their own program and policy decisions about supplementary curriculum grants and work to insure that funds designated for Indian children are used to their best advantage. Whatever the degree of involvement or method of running the schools, it is the tribes' right to decide how its children are educated. BEYOND SECONDARY SCHOOLS The desire of Indian students for college education far surpasses the programs available. Existing programs are promising, but meet only a small percentage of the need. Efforts to provide advanced education to Indians date back to the 18th century. Indians who attended college in the 18th and early 19th centuries were provided with no special programs. George Wash- ington commented on that point, : I am fully of the opinion that this mode of education which has hitherto been pursued with respect to these young Indians who have been sent to our collesres is not such as can be productive of any good to their nations. Reason might have shown it, and experiment clearly proves it to be the case. It is per- ^ Dr. Myron Jones position paper, "Tribal responsibility for Indian Education", "8 Ibid. 415 haps productive of evil. Humanity and good policy must make it the wish of every good citizen of the United States that husbandry, and consequently, civiliza- tion,' should be introduced among the Indians. This statement set forth the assimilation philosophy that was to pre- vail up to the 1930's and intermittently beyond. The Meriam Report of 1928 pointed out the need for furnishing scholarships and aid for Indian higher education. In 1934, the BIA insisted that loans for tuition and other expenses in recognized colleges be included in the Indian Reorganization Act. Regrettably, in 1952 Congress discontinued the loans. This action reflected congressional opinion that Indians should be taught to develop and suceed as citizens off the reservation. In 1957, the Fund for the Republic established a Commission on Rights, Liberties and Responsibilities of the American Indians. It ass'essed Indian needs and in January 1961 issued "The Indian Ameri- can's Unfinished Business", a document which recommended Indian involvement in and determination of education programs affecting tlieir lives. It asked for adequate scholarships, grants, and loans for higher education. New programs were created by the Economic Opportunity Act, a part of the Johnson Administration's "War on Poverty". The Upward Bound and Indian Community Action Programs laid the groundwork for Indian-controlled, Indian culture-oriented community colleges that exist today. Federal appropriations for Indian higher education doubled in 1963 and again the next year. BIA scholarship assistance grew almost as fast — 623 Indians obtained financial assistance in 1961, 1,327 in 1909. and 1,700 in 1975. The Higher Education Act of 1963 was the first to earmark funds for Indian junior colleges. In 1969, the Navajo Tribal Council created the first modern Indian college on an Indian reservation. With the establishment of the Navajo Community College, the movement to create tribally controlled Indian colleges accelerated. There are now 16 colleges chartered by tribal enabling legislation. These include Lakota Higher Education Center by the Pine Ridge Sioux in 1970, Sinte Gleska Community College by the Rosebud Sioux in 1970, Turtle Mountain (Chippewa) Community College in 1972, Standing Rock (Sioux) Community College in 1972, Sisseton-Wahpeton (Sioux) Community College in 1972, Fort Berthold Community College in 1973 ; and Lummi Indian School of Aquaculture in 1973. Indians in the community college movement feels the system must be controlled by the community people and that they must have their own means of educating tribal memljers. The future leadership and even the ultimate survival of the tribe may depend on how well higher education institutions help the community find solutions to its every- dav problems. in 1972, titles I, III and IV of Public Law 92-318 provided funding for higher education of Indians. This legislation opens the door for academic and vocational community colleges, extension centers, student scholarships, endowments, and cultural training centers. The need to make the Indian-owned and operated colleges more accessible to Indian students is clearly evident. A research paper 416 found most reservation students choose a particular school not for the programs it offers, but for its proximity. It also reported that the dropout rate is higher for Indians attending schools a great distance from the reservation. It can also be assumed that Indians attending a junior college on or near the reservation have a better chance of success. As might be expected. Indian colleges have monetary problems. To keep their doors open, they must maintain a full enrollment of tuition- paying students. ^lost Indian students are unable to meet the costs without help. For this reason, iinancial aid to Indian students is also necessary. Student interns at the Institute for the Development of Indian Law in "Washington summarized their problems : What we propose is an overhaul of BIA funding and monitoring sy^^tem capable of nsing all funds appropriated wisely and with greatest amounr of success. Second, we would like to see a program instituted by the Bureau to help assist medical students. We need doctors, we need more students, and to achieve this, we need adequate funding. In May 1974, Paul A. Olson. Director of the Study Commission on Undergraduate Education and the Education of Teachers. Lincoln. Nebr.. connnented on the Indian Controlled Connnunity College and University Act, saying that Indian culture : Constitutes a valuable resource both for Indian people and the rest of the nations. If the architectural knowledge, the herbal knowledge, the languages, the literative and the environmental knowletlge of Native American cultures are this valuable to us. surely it is a small matter to make the sort of investment which will be required to sustain these colleges and to sustain the cultures which may be so valuable to all of tis. Be assured those cultures will not be sust^r'ned as viable entities for integrating man and nature, if educational institutions con- ducted, controlled, and organized along Indian lines are not established at every level including higher education. It is thus, as preservers of a national resource and as trainees of profes- sionals, that I see the reservation community colleges as operating primarily. Government programs for Indian education historically neglected Indian culture. This omission could be addressed if universities were encouraged to develop special programs in tlie area of Indian culture. Progress is being made in liigher education for Indians, but the desire by Indian students for college education far surjiasses the programs available. As the Kennedy report summarized in its section on higher education : Indian students have expressed the desire for college educations. The con- sistently high dropout rates of Indian students, though, indicate the need for a more adequate education in the preparation fen- college and a better understand- ing by teachers, administrators and counselors of problems and needs of Indian students. General RECOMMEisrDATioxs The Commisswn recommends that : Congress enact legislation for the transfer of all Federal education programs from their present agencies to the consolidated Indian agency recommended elsewhere in this report. Congress enact leirislation that would aid tribal governments in as- suming the responsibility for control of education in accordance with their desires. Such legislation to include : 417 a. Amendments to Public Law 81-874 and Public Law 81-815 such that : (1) the dollars directed to aid schools educating Indian students would be funneled throufjh a tribal monitoring system, then to the school; (2) a set-aside provision is made to cover costs of tribal administration. b. Amendments to Public Law 93-638 such that: (1) a duly elected board of regents may be recognized as a unit representing tribes and tribal opinion to contract for and administer post- secondary schools with a multitribal population; (2) in the case of multitribal elementary and secondary schools, a duly elected board of regents, including at least one representative from each tribe, be recognized as a unit representing tribes and tribal opin- ions to contract for and administer those schools. c. Amendments to Public Law 93-638 and Johnson-O'Malley such that : (1) Any dollars contracted for the education of Indian children through Public Law 93-638 and Johnson-O'Malley would pass through a tribal monitoring system. (2) In utilizing this contract or monitoring power with Public Law 93-638 or Johnson-O'Malley a tribe may decide the extent to which it wishes to control the educational system affecting its children. This deci- sion runs the gamut from total tribal ownership and control to utilization of the tribal government onl}' as a monitoring system for Indian education moneys. (3) If the tribe opts to set up an organizational unit to monitor funds, a set-aside provision should be made available to cover the costs of tribal administration. d. Amendments to all Indian educaton legislation such that: (1) The State or local government not in compliance with agree- ments and contracts for Indian education programs can be sued by the tribe in a U.S. district court or in a State court of general jurisdiction. (2) The court may grant to the plaintiff a tempo- rary restraining order, preliminary or permanent injunction or other order including the suspension, termination, or repayment of funds or placing any further payments in escrow pending the outcome of the litigation. XoTE. — The language of the above two recommendations is taken from H.E. 13367 — Revenue Sharing. Congress appropriate funds to accomplish the following objectives : a. To establish standards for Indian education and develop an accreditation system for Indian schools. b. To train non-Indians who teach and work with Indian chil- dren as an interim measure until there are enough Indian educators. c. To educate and prepare tribes who wish to organize and oper- ate their own edticational systems. d. To subsidize a long-range effort to train and certify Indian educators for Indian schools. e. To subsidize curriculum development and library develop- ment for Indian schools. f. To provide an educatonal clearinghouse for information on teacher availability, new ctirricula, and special resources flowing between schools and tribes. 418 g. To give professional Indian educators the opportunity for regular input on new educational methods and resources to the tribes. OFF-EESERVATION BOARDING SCHOOLS The Coiivrrdssion recoTmnends that : Congress provide for the improvement of off-reservation boarding schools by enacting legislation to accomplish the following : a. Define the goals and objectives for each school and create an academic emphasis to fit its goals. b. Assure that juvenile corrections are the responsibility of the tribe and not the off-reservation boarding school. c. Organize an admittance and transfer policy for students. d. Provide for sufficient diagnostic staff and development specialists for each school. e. Provide a curriculum that is responsive to the students' psy- chological and academic needs. f . Assure that teaching and guidance staff are chosen for their ability rather than civil service rank. g. Give parents and communities the opportunity to contribute ideas and participate in school procedure. h. Give the school advisory boards real decisionmaking power, as indicated by the Indian Reorganization Act, and organize an elective process for advisory boards and boards of regents for all BIA schools. i. Set up funding structures to separate off-reservation boarding schools from other BIA-funded schools. j. Provide adequate financing and standardize accounting pro- cedures and fiscal reports of all schools. _ k. Remove postsecondary schools run by BIA from off-reserva- tion boarding school status so the tribes have the option to control staff, budget, programs, enrollment levels, and student body. SCHOLARSHIP The Com/mission recommends that: Congress provide funding through Indian organizations and tribes for scholarships in three academic areas : vocational education, tradi- tional liberal arts education, and graduate level education. Each Indian student who meets the requirements of section 411 (a) (1) of the Higher Education Act of 1965 be entitled to a grant in an amount computed under subsection (a) of section 411. HIGHER EDUCATION The Commission recom/mends that: The Congress enact legislation which would carry out a program for funding and administering Indian postsecondary schools. Such legis- lation should include : a. Funds for more Indian owned and operated colleges. b. Funds for research in the area of Indian higher education to determine students' academic and psychological needs. 419 c. Funds to assess the needs of tribes and communities for cer- tain tj^Des of vocations and professions. d. Funds to establish liberal arts institutions on or near popu- lous reservations. e. Funds to establish institutions of higher learning specializ- ing in the culture, languages, and traditions of Indian people. f. Funds for specialized Indian higher education centers, such as the Center for Indian Law. g. Federal funding to institutions of higher learning serving Indian students, similar to Johnson-O'Malley funds. h. Accreditation for Indian postsecondary institutions be pro- vided by an Indian designed and organized board. Welfare Anyone who applies for welfare benefits faces a great deal of red tape. Indians have an even more difficult time because they are forced to contend with an ill-defined three-tiered system of programs on Fed- eral, Federal-State and State-local levels. The confusion that arises from these overlapping and often conflicting programs has led to in- efficiency and abuse in delivery of welfare services to Indian people. This section will discuss welfare structure and define problem areas. The Review Commission does not recommend specific solutions, but rather points out areas needing additional research to bring about uni- form, equitable delivery. FEDERAL-STATE AND STATE-LOCAL ASSISTANCE It is important to understand the effect that Federal-State and State-local welfare have on Indians because Federal, or BIA, welfare assistance only comes into play only after these avenues have been exhausted. Federal-State programs refer to those promulgated under the Social Security Act, consisting of Aid to Families With Dependent Children (AFDC)^^ and Supplemental Security Income for the Aged, Blind and Disabled ("SSI").^°° AFDC and SSI require States to provide a specific share of welfare costs in order to receive Federal funds. Both programs are referred to as "categorical assistance," as distinguished from general assistance- or "relief" programs which are funded solely by the States and municipalities. The right of Indians to benefits from the Social Security Act was determined shortly after its enactment. A 1936 memorandum from the Office of the Solicitor reported that while the Act did not specifically include Indians in its benefits, "certain terms, requirements and con- ditions in the Act indicate that all the aids and services are intended to be available to all 'needy individuals' without regard to race or status." "1 !» 42 U.S.C. §5 601-608 (1970) as amended. 42 U.S.C. §§ 601-608 (siipp. II. 1972). 100 42 U.S.C. §§ 1381-1385 (supp. 1974). Effective January 1, 1974, SSI superseded three former separate areas of Social Security Act aid: Old Aee Assistance 42 U.S.C. §§301 et seq. (1970). Aid to the Blind. 41 U.S.C. §§ 1201 et seq. (1970), and Aid to the Disabled, 42 U.S.C. §§ 13.51 et seq. (1970). 101 Memorandum Opinion (unpublished), OflSce of the Solicitor, Department of the Inte- rior, Apr. 22, 1936, p. 1. 420 This opinion was based on the Act's provision, in connection with direct aid : 1. That a State plan must be in effect in all political subdivisions of the State. Title I, sec. (3) (a) (1) ; title IV, sec. 402(a) (1) ; title X, sec. 1002 (a)(1). Indian reservations are within State counties and other political subdivisions. Porter x. Hall, 271 Pac. 411 (Arizona 1928). 2. Moreover, no State plan is acceptable which imposes as a condition of eligibility . . . "any residence requirement which excludes any resident of the State" who has resided therein for certain periods. . . . Title I, sec. 2(b) ; (2) ; title IV, sec. 402(b) (1) (2) ; title X, sec. 1002(b) (1). The Indian in- habitants of a State are residents thereof. 3. Nor can a State impose any citizenship requirements which excludes any citizen of the United States. Title I, sec. 2(b)(3) ; title X, sec. 1002 (b)(2).^''^ The issue was first tested in State ex rel. Williams v. Kemp, in which the Supreme Court of Montana was asked to decide whether the State or the counties were responsible for Indian welfare benefits. It interpreted a State statute to require that the State general fund reim- burse the counties for social security assistance to reservation Indians. In reaching that decision, the court said : The broad language of the Federal Social Security Act on the face made the grants to the States contingent upon the fact that no citizenship requirement should exclude any citizen of the United States from relief benefits. Indians are citizens of the United States . . . The Montana legislature, confronted with the question of choosing to accept or reject Federal grants, chose to accept them. To do this, it was obliged to meet the conditions imposed.^"^ JNIontana was not the only State that had difficulty accepting Indi- ans on its federally supported rolls, there was considerable resistance. Arizona, for instance, passed categorical assistance laws in 1937, but it excluded Indians from coverage until 1954, despite threats that Federal funds would be withheld. It was not until funds were actually withheld and Arizona's suit ^°* to compel payment was dismissed, that Arizona gave in. During the termination period of the 1950's, San Diego County in California also attempted to limit State and county liability for In- dian welfare. In Acosta v. San Diego Coimty, the county contended it could deny welfare to Indians because they were not considered resi- dents of tiie county for the purposes of gaining direct county benefits. The court of appeals found the county's contention a violation of the equal protection clause of the 14th amendment : The argument that responsibility for reservation Indians rests exclusively on the Federal Government has been rejected. . . . That reservation Indians are en- titled to direct relief from either the State or County in which they reside was conceded in State ex rel. William v. Kemp. . . . The only issue there was which political body would bear the expense. From the conclusion reached that Indians living on reservations in California are citizens and residents of this State, it must therefore follow that under sec- tion 1, amendment XIV of the Constitution of the Ignited States, they are en- dowed with the rights, privileges, and immunities equal to those enjoyed by all other citizens and residents of the State.'°^ The Supreme Court has never directly addressed the issue of Indian eligibility for Federal-State and State-local welfare, although it has 1"= Memorandum Opinion, supra, at p. 2. W3 78 p. 2d at 5S7. 11^ Arizona v. Hohhy, 221 F. 2d 498 (D.C. cir. 1954). 105 272 P. 2d at 98 (1954). 421 held that race cannot be the basis of State discrimmation.^"^ Dicta in Morton v. Ruiz clearly included Indians under Social Security Act welfare benefits. The Court said : "Any Indians, whether living on a reservation or elsewhere, may be eligible for benefits under the various social security programs in which this State participates and no limita- tion maj^ be placed on social security benefits because of an Indian claimant's residence on a reservation." ^"^ HOW BIA GENERAL ASSISTANCE FPrS IN The general authority for BIA welfare programs is found in the following broad language of the Snyder Act of 1921 : The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care and for the following purposes : General support and civilization, including education. For relief of distress and conservation of health . . . And for general and inci- dental expenses in connection with the administration of Indian Affairs.^'* The regulations covering BIA General Assistance are contained in an unpublished, looseleaf manual ^°^ available only to BIA workers. In Morton v. Ruiz ^^" the Supreme Court found that BIA had failed in its procedural duties by not having its regulations duly published in the Federal Register and codified in the Code of Federal Regida- tions, as required by the Administrative Procedure Act. Further, the Couit found that the general assistance appropriations at issue were intended by Congress to benefit Indians who live "on or near" reservations, contrary regulations in the Manual. Thus, BIA general assistance is available to reservation Indians and those living nearby as long as congressional intent to appropriate such moneys is clear. "The Court clouded the issue when it added that, given a scarcity of funds, "it would be incumbent upon the BIA to develop an eligi- bility standard to deal with this problem, and the standard, if rational and proper, might leave some of the class otherwise encompassed by the appropriation without benefits." ^^^ It is important to bear in mind that IBA general assistance comes into play when other avenues of assistance have been exhausted. The BIA manual states the following : (b) Unavailability of Public Assistance or General Assistance from a State or local jurisdiction. Individuals receiving public assistance in their own right, or whose needs are included in a public assistance payment are not available for Bureau general assistance. Indians for whom general assistance is actually available from a State, county or local public jurisdiction are not eligible for general assistance from the Bureau. The phrase "actually available" in this regailation appears to leave room for case-by-case determination of BIA welfare eligibility. This is not the case, according to an article by Sarah W. Barlow and Martha W. Blue : If the BIA applied this rule to the individual circumstances of each applicant, as it does its other eligibility conditions, the rule would simply prevent duplica- i"« LovinfiT V. Virgmia, 388 U.S. 1 (1967) ; Broion v. Board of Education, 347 U.S. 48^ (1954). ; <• . ; !"■ 41.5 U.S. 199 (1074). i"''2.-> U.S.C. ?§ 13. i^-. ... , i"» f)f5 1.A.M. §§ 3.1 et seq. .W«^-.'->' • "»415 U.S. 199 (1974). HI 415 U.S. at 231. 422 tion of welfare assistance; but instead, the BIA uses it to declare all Indians in certain geographic areas ineligible for BIA General Assistance. The BIA relies on this rule, as well as on other factors, in deciding whether or not to oi>erate its general assistance program in a specific location. For example, since Arizona and its counties refuse general assistance to Indians living on a reservation, the BIA operates its general assistance program on Arizona reservations, but since Utah permits eligible Indians on reservations to receive State general assistance, the BIA has no general assistance program in that state."^' These authors point out, this policy discriminates against reserva- tion Indians living in States with general assistance programs which include Indians. State programs are generally less beneficial than the 13IA program. Moreover, inclusion in State programs precludes In- dian recipients from benefits under the BIA program. According to Barlow and Blue, "although the exclusion of reserva- tion Indians from State (or local) general assistance poses constitu- tional problems, raising these issues would only harm Indians, because virtually all State and local general assistance programs provide less money to recipients and are more restrictive in their coverage than BIA general assistance." ^^^ BIA has ignored the reality of welfare "benefits" by its refusal to supplement State categorical welfare wdien such benefits do not meet 100 percent of BIA established needs.^" To say that participation in any program, no matter how inadequate, supplants the goal of the higher standards established by BIA, subverts the clear intent of the ,Snyder Act. CHILD PLACEMENT The policy of removing Indian children from their homes and tribal settings to "civilize" them began in the 1880's with the advent of boarding schools. Indian children are still being removed from their tribal culture. Today, however, this is done through the adoption of Indian children by non-Indian families and their placement in non- Indian foster care homes and institutions. Two basic jurisdictional questions exist: who decides whether an Indian child needs to be removed from home ; and where and how that cliild is to be raised. Until very recently, such decisions have been made by non-Indians without tribal input. Today, the tribes are beginning to reassert their historical role in the care and protection of Indian -children. While both Indians and non-Indians are concerned with child place- ment, social workers without training or understanding of Indian life- style or culture are ill-equipped to make judgments about the adequacy of the Indian child's upbringing. Even if one assumes the social work- er is making the right decision, there should be an effort to maintain the family unit while problems are being solved. Recommendations The GommiissionrecoTmnends that: Congress hold oversight hearings to clarify the division of respon- sibility between Federal and State agencies involved with Indian af- ^ 51 N. Dak. L. Rev. 31 at 41-4a "3 Id. i"66 LA.M. 3.1.4(B). 423 fairs : including BIA, HEW, IHS, Office of Civil Eights, and Social and Kehabilitation Services ; and direct these agencies to consult with State agencies to determine the causes of the breakdown in the delivery of services to Indians by the States. The BIA and HEW promulgate regulations to clarify that Indian trust money and land is not to be considered an asset by State and county governments in determining eligibility for welfare programs. BIA be required to publish in the Federal llegister and in the Code of Federal Regulations their procedures and guidelines for general assistance under the Snyder Act. Procedures and practices used in the BIA's 64 local welfare offices should be standardized and made uniform, ending the practice of dis- cretionary action on the part of the local BIA caseworkers. Receipt of State or local general assistance should not make an In- dian ineligible for BIA assistance when supplemental aid is needed. CHILD PLACEMENT The Cominisslon recommends that: Congress, by comprehensive legislation, directly address the prob- lems of Indian child placement and the legislation adhere to the fol- lowing principles: a. The issue of custody of an Indian child domiciled on a res- ervation is the subject of the exclusive jurisdiction of the tribal court where such exists. b. Where an Indian child is not domiciled on a reservation and subject to the jurisdiction of non-Indian authorities, the tribe of origin of the child be given reasonable notice before any action affecting his/her custody is taken. c. The tribe of origin have the right to intervene as a party in interest in child placement proceedings. d. Non-Indian social service agencies, as a condition to the Fed- eral funding they receive, have an affirmative obligation — by spe- cific programs — to : (i) provide training concerning Indian culture and tradi- tions to all its staff ; ( ii ) establish a preference for placement of Indian children in Indian homes ; (iii) evaluate and change all economically and culturally inappropriate placement criteria ; { iv) consult with Indian tribes in establishing (i) , (ii) , and (iii). e. Significant Federal financial resources should be appropriated for the enhancement or development, and maintenance of mecha- nisms to handle child custody issues, including but not limited to Indian operated foster care homes and institutions. In reservation areas such resources should be made directly available to the tribe. CHAPTER NINE OFF-RESERVATION INDIANS Despite the fact that the Federal Government must assume some responsibility for the present-day problems of urban Indians, the government has actually re- fused to extend those services to urban Indians which they would otherwise re- ceive if they lived on their reservations. Urban Indians do not receive the special Federal programs which are directed to Indians. Strangely enough, they often do not receive the services directed to non-Indians, either. Local, .State and county welfare programs often refuse to serve Indians on the grounds that they are the responsibility of the Federal Government. ii-2o) 92-185—77 28 CONTENTS Page Overview 429 History 429 Policy and law relating to off-reservation Indians 433 The urban environment and the urban solution 436 Recommendations 441 (427) CHAPTER NINE OFF-RESERVATION INDIANS Overview Almost half of the United States Indian population lives outside the iDoundaries of Indian reservations. In 1970, 340,000 lived in cities and six cities had Indian populations which are larger than those of any reservation except the Navajo Reservation/ Many of these people moved to cities because of Federal policies. The earliest movements of tribal people away from tribal lands were often the indirect result of policies which diminished the reservation land base to such an extent that Indians had to find homes elsewhere. Educational policies added to the trend by removing Indian children from their homes to off-reservation boarding schools where the chil- dren were taught skills which could not be used on reservations. Policies which neglected reservation development, of course, made reservations undesirable places to remain and also affected migration. Some policies, particularly following World War II, were more di- rectly responsible for relocating Indians away from reservations. In addition to robbing reservations of some of their best talent, these policies have resulted in dire circumstances for the large numbers of Indian people who find themselves in urban ghettoes, today. Despite the fact that the Federal Government must assume some responsibility for the present-day problems of urban Indians, the Gov- ernment has actually refused to extend those services to urban Indians which they would otherwise receive if they lived on their reservations. Url^an Indians do not receive the special Federal programs which are directed to Indians. Strangely enough, they often do not receive the services directed to non-Indians, either. Local, State and county wel- fare programs often refuse to serve Indians on the grounds that they are the responsibility of the Federal Government. In this situation, the development of Indian community service centers has been the one optimistic factor. The Federal Government offers these centers little encouragement, however, and they become entangled in bureaucratic and jurisdictional fights. New policy directions can have a very clear beneficial impact on the desperate urljan Indian situation if administrative jDrograms utilize and encourage urban Indian centers. HiSTORT ^ This review of off-reservation Indian history will examine the wavs Federal policies have splintered tribes and either forced or encouraged 1 Siar A. Levltan and William B. Johnsfon, Indian Giving (Baltimore, 1975), 2-3. (429) 4^0 Indians to move away from reservations in an effort to end the "Indian problem." It will also show how these moves have not solved the prob- lems of poor health, poverty, limited employment opportunities, poor education, and alienation, but have merel}' transferred them to rural and urban settings. In the late 19th century, after the Federal Government had suc- ceeded in reducing Indian tribal holdings to small reservations, the policies of neglect, dependency, and assimilation were established. While there were some meager efi'orts at "reservation development." no significant system of economic and cultural protection was created to permit Indian tribes economic viability and independence. Reser- vations were often viewed as camps where assimilative tools would be provided prior to the Indian's dispersal among the white population. Even reservations, however, posed a threat to the Federal Govern- jnent because they provided a place wdiere Indian people could not be effectively kept from maintaining their identity and culture. So, at- tempts were made to parcel out tribal lands to Indian individuals in an effort to destroy the communal cohesiveness of tribal society. The continuing assumption on the part of tlie Federal Government was that assimilation was the Indian's fate. Legislation was based on this assumption. One of the most obvious examples of Federal action which broke up reservations, strained tribal cohesion, and encouraged subsequent migration of thousands of Indians to other areas was the General Allotment Act of 1887.^ Indeed, it is not inaccurate to say that the migration of the Indians was a calculated result of this legislation. The General Allotment Act was, of course, just one example of a long line of Federal legislation and administrative actions which were either designed to or inadvertently resulted in dispossessing Indians of their lands and driving them to seek jobs off the reservation.* Often- times, the Federal Government was the decisive influence weakening (and sometimes dissolving) ^ the tribal governing structures; it stood by while most of the Indians' choice lands were taken from their control and the resources from the remaining lands were destroyed; it moved Indians off the reservation for job training and employment. More often than not, job training in the cities turned out to be irrele- vant, employment opportunities were nonexistent, and furthermore, the Federal Government neglected to provide meaningful assistance in housing, education, or health. As the final insult to those Indians who were victims of this concerted campaign to assimilate them, the Federal Government refused and largely still refuses to recognize its 2 This historical review Is condensed from an extensive history researched and written by Dennis Carroll for Task Force Eight. 3 24 Stat. 388. * Also during the 1870's. the Federal Government began the Indian boarding scliool system which was "designed to separate a child from his reservation and family, strip him of his tribal lore and mores, force the complete abandonment of his native language and prepare him for never again returning to his people." [U.S. Cong. Senate Committee on Labor and Public Welfare, Indian Education: A National Tragedv — A National Challenge, S. Kept. No. 91-.501, 91st Cong., 2d sess. 12 (1969.1 Some 20 years later, the Indian Com- missioner stated that it was the "settled policy of the Government to break up reservations, settle Indians upon their own homestead, incorporate them into the national life, and deal with them not as nations or tribes or bands, but as individual citizens." Rep. Comm. Ind. Aff., 1890 at VI. ^ Felix Cohen described the systematical destruction of tribal governing structure and powers of the Five Civilized Tribes. F. Cohen, Handbook of Federal Indian Law, 427-434 (1942 ed.). 431 responsibility to provide them with the services they would receive on their reservations. Education through the oft'-reservation boarding school was another method utilized to alienate Indian people from their culture. This educational model for Indian youth was directed at developing young men and women who could join the mainstream of white, Christian society. Instead, it left a legacy of frustration, depression, and aliena- tion that made Indians unable to pursue the traditions of their fathers, but left them unequipped to participate in white-dominated economy. The increasing number of Indian people living off-reservation was noticed in two Indian policy studies in the 1920's. The Senate Sub- committee on Indian Affairs' Survey of the Conditions of the Indians of the United States was followed by the well-known Meriam Report. The Subcommittee conducted and published hearings across the United States, and largely provided the data base for the more concise Meriam Report. The subcommittee's hearings in California were par- ticularly directed at the burgeoning problem of urban Indians. The Government was beginning to notice a new problem area in Indian affairs, but responsive policies would not be instituted within the next half-century. Whatever insights might have been gained from hearing testim.ony were lost when the Meriam Report published its chapter on "Migrated Indians", and relied on the material presented by Indians' employers rather than the Indians themselves. On this choice of information, the Meriam Report recommended that "no effort be devoted toward building up an independent organization in such cities for migrated Indians, but rather toward establishing cooperative re- lations with existing agencies which serve the population as a whole." * The Snyder Act of 1921 had given the Commissioner of the Bureau of Indian Affairs broad latitude in spending appropriations for Indian affairs and in developing programs to meet Indians' needs. The legis- lation simply stated that appropriations were to be used for "Indians throughout the United States." Certainly that clause is broad enough to include those Indians who were forced away from reservations by land policies, by Federal encouragement, or by economic needs, but the Bureau did not choose to view its role in so expansive a way. The ^Meriam Report, no doubt, gave scholarly support to this bureaucratic timidness. For many years, the Bureau's failure to serve the increasing urban Indian population went unquestioned. After World War II, Indian perceptions of reservations and cities began to change. The war showed many Indians a world they had never seen and seldom heard of. There were opportunities for achievement in the military service which they had never found on reservations. They proved themselves capable of using those opportunities and returned home with confident hopes that they could make their res- ervations better places to live. This hope soon turned to despair as they tackled the obstacles which impeded (and today still impede, see chapter 7) reservation development. Many Indians, however re- luctant to leave their communities and families, decided that low quality subsistence was the only future for the reservations and set off for the cities to find work. By 1951, more than 17,000 Navajos ° Meriam, Lewis, The Problem of Indian Administration, "The Migrated Indians" ch. XII. 432 ■worked away from the reservation, primarily on railroads and agriculture. At the same time, the Federal policy of assimilation manifested it- self in a new way. A theory that reservations were overpopulated gained credence. JBy 1954, a congressional report entitled, "Survey Eeport on the BIA" generalized that "most of the reservations are overpopulated, and could not support the population at anything ap- proaching a reasonably adequate standard of living." ^ Eather than pursuing a way to make Indian homelands financially secure places to live, the Federal Government chose to follow a simpler approach: re- location of Indians away from the reservations. Thinning out the population of reservations, however, did not solve the ])roblem. The fact that Indians left the reservation did not mean they were willing to stop being Indians ; and whether or not reservations bred some social problems, it could not have been assumed that those problems would be shed at the reservation boundaries. Nevertheless, Federal policy followed exactly that simplistic an approach. Transportation funds were provided, but relocation services were not. The Federal Government not only failed to provide needed services to the Indians it relocated, but actually refused to provide those serv- ices. The Federal relocation program was to be initiated by the BIA but was left to be implemented by local. State and county assistance programs, or churches or humanitarian organizations. The only thing that was shrugged off at reservation boundaries, it turned out, was Federal responsibility. Indians affected by relocation were not given an opportunity to tell their side of the story until the National Council on Indian Oppor- tunity held hearings in five major cities in 1968 and 1969,^ The nu- merous criticisms that were heard at this time fell into three cate- gories: (1) The lack of orientation in relocating from reservations to cities; (2) the low quality of opportunities for work; (3) the con- fusion of where to turn for necessary services. Federal policy had ig- nored particular difficulties Indians faced in the cities, difficulties such as language barriers, questions of where to find services or help in emergencies, and the most fundamental problems of daily survival. The special problems which Indians face when they are away from their reservations are another unique aspect of the Federal-Indian relationship. "Whatever historical forces have contributed to these problems, it is apparent that the situation is significant enough to de- serve Federal attention. To solve these problems which the Federal Government largely created and then totally ignored, Indian people themselves have con- tributed the most recent and the most constructive development in the history of off-reservation Indians. That is the development of urban Indian service centers. Some of these centers have evolved from very small groups organized for recreational purposes into multifaceted operations capable of sustaining programs in educational and voca- tional training, defense of tenant rights against unscrupulous land- lords, psychological and career counseling, various kinds of entertain- ''U.S. Congress, House Committee on Interior and Insular Affairs, "Survey Report on the Bureau of Indian Affairs," 1954, p. 23. 8 National Council on Indian Opportunity, hearings in Los Angeles, Dallas, Minneapolis- St. Paul, San Francisco, and Phoenix, 196S-69. 433 meiit, and the provision of emergency relief. There can be no doubt that today the Indian centers are a sound and creative response to the In- dians' frustrations with their urban environment. The urban Indian service centers have not, however, completely solved the problems urban Indians face. In fact, they have encoun- tered many obstacles which the Federal Government could remove, and have clarified a new policy problem in the administration of Fed- eral programs for urban Indians. There is a unique relationship be- tween the Federal Government and urban Indians, both because of the uniqueness of the problems urban Indians face and because of the uniqueness of the historical factors which made some Indians urban residents. How to administer that unique relationship has not yet been determined. Instead of taking the initiative and providing services to these Indian people, the Government has chosen to argue over respon- sibility and jurisdiction; these arguments continue to the present day. Policy axd Law Relating to Off-Reservation Indians The following discussion examines briefly the concept and scope of the Federal trust responsibility to off-reservation Indians.^ The ex- clusion of nonreservation Indians from the Federal trust relationship does not follow from a careful legal analysis but rather emanates from perceived practical considerations and the attitude, "''it has always been done that way."' While the Federal trust responsibility extends from the Federal Government directly to the tribe, it must be noted the tribe as an entity does not exist without its people. Thus, it can be said that the ultimate beneficiary of the trust is the individual Indian as a member of his tribe.^" This is obviously true, for example, when the J^ederal Government acts to protect an individual Indian's land from being taxed by the State.^^ It is also true, however, vrhen action is taken to protect a tribe's water resources on the reservation.^- Individual Indians, including most of those living in urban and other nonreservation areas, generally identify themselves in the context of their tribal affiliation. Probably few, if any. Federal administrators or legislators would disagree with the above conunents. Dissent increases, however, when it is suggested that the Federal Government's trust responsibility applies to tribal members living off' the reservation as well as to those living on Indian lands. This dissent results partially from the fixed thinking- predominant in governm.ent that the Indian trust equates with land and nothing more, and partially from the mistaken notion that if an Indian leaves his reservation, it is with a conscious understanding that he is putting his tribe behind and assimilating to non-Indian soceity. As the historical review points out. more often than not. individual Indians who chose to leave reservations did so because they could not find jobs, or decent housing, or a quality education there. ^Moreover, many were practically forced to leave by BIA insistence, and hi this situation the Federal responsibility is certainly clear. ^ See eh. 4 for a complete discussion of the Federal trust responsibilitv. 10 See U.S. V. HoUirlaii. TO U.S. 407 (1805). 11 E.jr.. Board of Couniji Commissioners v. Seher, 318 U.S. 705 (1943). ^ Winters v. U.S., 207 U.S. 564 (1908). 434 Most importantly, Federal policy should not be based on the Gov- ernment's intention to dictate any group's culture. In discussing In- dian policy, of course, this point becomes crucial. Assimilation has not succeeded and has largely been discarded. For urban Indians, however, there are many residual administrative obstacles which were constructed on the theory that off-reservation Indians gave up their tribal status, or should have given it up. The overw^helming major- ity of Indians in this country continue to be tribal members, regard- less of where they live and regardless of whether or not their tribe is recognized by the Federal Government, and in spite of continuous policies aimed at destroying tribal society. The Federal Government's trust obligation to Indian tribes should extend to these tribal mem- bers as well as to their reservation brothers for there is no sound legal or political reason to discriminate against them. No court, no general act of Congress, certainly no constitutional provision states that the Government's special responsibility to the Indian people stops at the reservation gate. The concept of trust responsibility is most often applied in the context of recognized res- ervation Indians, but several court decisions have found that the Gov- ernment's legal duty is not so limited. For example, to benefit from the Federal responsibility to protect trust lands, the individual Indian need not reside on a reservation ; ^^ it makes no difference that he is a United States citizen as w^ell as a tribal member, for "citizenship is not incompatible with tribal existence or continued guardianship." ^* The unique need of nonreservation Indians has not been totally ignored in modern legislation,^^ but much of the intent of those Acts has been circumvented either by administrative neglect or outright refusal to provide services targeted to Indians. Before 1921,^" there had been no specific authorization for the ap- propriation and expenditure for most of the programs which the Bu- reau of Indian Affairs had come to maintain for the benefit of Indians. In the Congress, appropriations for the Bureau of Indian Affairs were subject to a point of order objection which frequently resulted in cumbersome and time-consuming maneuvering while Indian pro- grams hung in suspense. This frustrating process was at least partially 13 jfo« V. U.S., 293 U.S. 84,8 (1931). 1* U.S. V. Nice. 241 U.S. 591, 598 (1915). " E.g., sec. 302 of the Comprehensive Employment and Training Act of 1973, 87 Stat. 839, makes nonreservation Indian groups and organizations eligible as prime sponsors for manpower programs. Under the Native Amercian Programs Act of 1974. 88 Stat. 2323, the Office of Native American Programs in the Department of Health, Education, and Welfare has the objec- tive to provide direct support for self-determination programs aimed at improving the health, education, and welfare of Native Americans both on and off reservations. Legis- lative history of the Act suggests that Congress intended ONAP to expend the largest share of its budget on programs for nonreservation Indians. Analysis of ONAP grantees, however, indicated that approximately 60 percent of its budget is going to reservations. Public Law 93-638, passed on Jan. 4, 1975 (88 Stat. 2203) also includes nonreservation Indians as eligible contractors under the provisions of the Act b.v defining a tribal organi- zation as any "recognized governing body of any Indian tribe" or "any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization . . ."sec. 4(c). The recent passage of P.L. 94^37, title V, indicated the Federal Government's recogni- tion of the urban Indian's health problem ; however, rather than solving the problem, it highlights many of the complex issues surrounding urban Indian health care. As well as other issues, P.L. 94-437 highlights the following needs: (1) identification of all public and private health service resources within the urban center which may be available to urban Indians; (2) assistance of urban Indians in becoming familiar with and utilizing such resources ; and (3) provision of basic health education to urban Indians. i»25U.S.C. 13. 435 relieved by passage of the Snyder Act which authorized items of ap- propriations in nine broad program areas: The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes : General support and civilization, including education. For relief of distress and conservation of health. For extension, improvement, operation, and maintenance of existing In- dian irrigation systems and for development of water supplies. For the enlargement, extension, improvement, and repair of the build- ings and grounds of existing plants and projects. For the employment of inspectors, supervisors, superintendents, clerks, field matrons, farmers, physicians, Indian police, Indian judges and other employees. For the suppression of traflBc in intoxicating liquor and deleterious drugs. And, for general and incidental expenses in connection vrith the admin- istration of Indian Affairs. A pertinent interpretation of the Act ^Yas made in December, 1971, by Assistant Solicitor for the Division of Indian Affairs, Depart- ment of the Interior, Charles Soller. In that written opinion to the Commissioner of Indian Affairs, Mr. Soller stated that : "On its face, the underscored language is abundantly clear and requires no inter- pretation. Literally, it authorizes the expenditure of funds for the purposes within the named program categories for the benefit of any and all Indians, of whatever degree, whether or not members of fed- erally recognized tribes, and without regard to residence so long as they are within the United States * * *. With language fo unequivo- cal, it is subject to the general rule of the law that plain and unambigu- ous statutory language will be followed * * * .17 ^j^g opinion states that the Snyder Act will support a broader eligibility for Bureau services, but it cautions the Bureau against extending BIA services to all Indians without first considering other "statutory limitations" ^* and without first consulting with appropriate congressional commit- tees. Apparently, however, the Bureau never got a chance to take those other two steps because the Commissioner received specific instruction from the then Assistant Secretary, Harrison Loesch, not to divert the Bureau's "attention and limited funds from our basic respon- sibility of serving on-reservation Indians." Xot only was the rationale weak which the Assistant Secretary pre- sented for this limitation of services, but the statement itself shows a lack of understanding. He apparently understood that no off-reserva- tion Indians were receiving Bureau services, except in special hard- ship cases. But, as explained in considerable detail by the Supreme Court in Morton v. Ruiz^ the provision of BIA services "clearly has not been limited to reservation Indians" only.^" Native Americans in Oklahoma and Alaska have received and still are receiving certain services from the BIA, whether they reside on or off the reservation. ^'U.S. Dept. of the Interior, Office of the Solicitor, Scope of the Snyder Act of Nov. 2, 1921. 42 Stat. 208, 25 U.S.C. sec. 1.3, memorandum of Commissioner of Indian Affairs from Asst. Solicitor Division of Indian Affairs, Dee. 9, 1917. ^'T'.S. Dept. of the Interior. Office of the Assistant Secretary, Adherence to Our Lons- Standinjr Policy of Not Providing Special Bureau of Indian Affairs Services to Off- Reservation Indians. Memorandum from Asst. Secretary for Public Land Management Har- rison T.oesch, to Commissioner of Indian Affairs, .Ian. 10, 1970. -"415 U.S. 199, 212 (1974), This is also true for services provided by the Indian Health Service, 436 The Indian relocation program and general assistance benefits con- nected with that program are extended to nonreservation Indians.-^ Special vocational training programs have long been made available to off-reservation Indians.^- Educational services had similarly been extended to them by virtue of the Johnson-O'JNIalley Act.^^ It is true that the Court in the Ruiz case did not interpret the Snyder Act as requiring the Bureau to provide its social services program benefits to all Indians. But it is equally true that the decision inter- preted the Snyder Act in broad enough terms so that such an applica- tion would be permissible. It stated that : We need not approach the issue in terms of whether Congress intended for all Indians, regardless of residence and of the degree of asisimilation to be covered by the general assistance program. We need only ascertain the intent of Con- gress with respect to those Indian claimants in the case before us.^* Thus, the Court chose to avoid a definitive judgment on the overall issue by limiting its holding that the Bureau of Indian Affairs has the duty to provide general assistance services to Indians living "on or near the reservation" and who maintain close economic and social ties to the reservation. In spite of this requirement, BIA Manual still blatantly states that it limits eligibility to "on-reservation" Indians plus Oklahoma Indians and Alaskan Natives.-^ The persistent refusal of the Bureau of Indian Affairs to address the problems of off-reservation Indians and to accept responsibility for fostering programs which will meet the needs of these Indian ]ieo])le, underscores a very basic discrepancy in the United States Indian policy. The agent entrusted to carry out the trust which the United States assumes in its relationship to Indian people, should be eager to carry out that trust in whatever area it may encompass. To deny the rights of Urban Indians is to question the position of all Indians in United States policy. As Syd Bean, Executive Director of the Phoenix Indian Center testified at a Task Force Eight hearing, "if the off-reservation Inclian communities are forced to terminate their rights for special Indian services then the Federal Indian relationship is threatened for all Indians." ^^ The Urbaist Enviroxmext axd Urban Solution Between the intentions of the laAvmakers and the reality of regu- latory actions lies the service gap that confronts the urban Indian. The result is untold desperation and waste of human resources. Most Indians who migrnte to the cities say they would have pre- ferred not to do so at all. Still, the census figures for the years 1060- 1070 show a rate increase of from 30 to 45 percent, and aii HE'W re- port published in 1070 sheds some light on the reasons." The report 21 25 U.S.C. spc. 471. Ffee Morton v. Ruiz, 415 U.S. 199 (1974). 22 Morton V. Ruis, 415 U.S. 199 (1974). 23 25 U.S.C. sec. 452. =M15 U.S. 199. 211 C1974). =s 06 Inclian Affairs Manual, sec. 3. 4. See generally. V. Deloria. .Jr.. "Lesislntive Annlv«i<5 o*' "!•; Federal Role in Indian Education," contract for the Dept. of Health, Education'; and \\ eltare, 19*5. TrilV7l!."vf°Q^''o"i"""^/"''"*"^'^ ^'^ ^^^ Eeane at a hearing conducted bv Taslc Force JiiicnL. reo. a, 19 (n. p. 14. io-r>"A ''*"*'^ of Selected Socio-Economic Characteristics of Ethnic Minorities Based on the l.nn Census : vol. III. American Indians." Office of Special Concerns, Office of the Assistant Secretary for Planning and Evaluation. Dept. of HEW, 1974. 437 showed that the most apparent sliift from reservation to city was among- tliose of prime employment age, between 20 and 40. It also showed that older Indians— those beyond the age of peak employ- ment—moved back to their reservation. The report concluded that the lack of job opportunities in rural and reservation areas lent impetus to the migration. The survey and results of the hearings by Task Force Eight affirmed that most Indians move to urban areas with hopes for jobs or for find- ing better jobs than on the reservation and rural areas.^^ Regrettably, this expectation has often remained for the most part unfulfilled. The HEW report suggests that low employment may be due to inadequate vocational training,^^ a conclusion supported by the Commission's finding in two areas. One is that educational facilities on reservations are limited in standard, and the reservation is where most Indians receive their education. The other is that Indians who are educated in programs initiated outside the BIA often find that the skills they learn are not salable, and that job placement activities are limited. To date, employment assistance has been geared toward plac- ing Indians in low-paying, entry-level jobs, rather than orientation and training for positions that could lead to upward mobility. It has only been in the last 5 years that the BIA has ostensibly changed their former "relocation*' policies. The new thrust, announced by Commissioner Louis R. Bruce in 1972, w\as a policy advocating for the end of termination era programs. Some of the more imaginative uses of employment assistance funds has followed emphasizing on- reservation training for tribal economic programs. Unfortunately, this emphasis is too late for those Indians who have employment and social problems in the cities. The lack of employment opportunities leads to a downward spiral that reduces the urban Indian's life to a struggle for subsistence. For example, the private practice system of health care is certainly beyond the financial reach of most newly arrived urban Indian families. They must depend on public services. Yet here, the service gap reveals itself again. Ineligible for Indian Health Service assistance because he is olf the reservation, the urban Indian finds that other means of finding medical attention are closed off as well. Xon-Indian health service hospitals are often reluctant to admit Indian patients for fear they will not pay. Local welfare agencies and charitable organizations often have the "same fear, compounded by a belief that all Indians are the responsibility of the Federal Govern- ment. These agencies already juggle funds and personnel to serve as many needs as possible and often deny Indians treatment entirely or serve them in a superficial way. Yet, the urban Indian often has special problems requiring treat- ment that is costly, prolonged and, to be successful, must be based on understanding of complex sociological factors. Two examples are the high incidence of both alcoholism and drug abuse. Both leave the urban =« Response from 62 orcranizational questionnaires regarding the needs of urban Indian communities showed employment needs for tlie most frequently mentioned and respondents characteristically mentioned this before any other. lespoi.ueucs =9/6id. HEW report, p. 51. 438 Indian not only in wretched physical condition, but also in danger of social repercussions, jail, and repeated fines. Few alternatives exist in the areas of housing. Urban Indians, un- schooled in rents, mortgages, or leases because of their lives on the reservation, are often targets for unscrupulous and dishonest land- lords. Lacking preparation, orientation, and money, the Indian often finds himself in overpriced, substandard housing located in marginal neighborhoods. If he tries to ease the financial and emotional burdens by sharing living quarters with another family, the results are often unsatisfac- tory. Overcrowding and unhealthy living conditions are two immedi- ate results, and harrassment from landlords is almost certain to follow. Families in particular often become discouraged at this point and re- turn to the reservation, remaining only until resources are exhausted to try the cities once again. This back-and-forth migration works to the Indian's disadvantage. The task of gathering information that will document the problem is difficult and programs that could be funded by grants are hard to justify. It also limits the experience of social welfare agencies with unique Indian problems. Thus it becomes hard for these agencies to become conversant with the specific problems and to assist Indians accordingly, even if funds and staff were available. One solution has been proposed and tried, with some success. Until recently, the Snyder Act pro^nded for equity grants to be used in mak- ing downpayments on homes. These grants were available to relocatees who remained in the same city for 3 to 5 years. The programs was re- cently cut back, a casualty of economic pressures that have reduced funding for social service programs. Reinstituting it would be highly effective, particularly if it were extended to all Indians. THE URBAN CENTERS In this bleak picture, the only real source of help for city Indians has been the urban centers that grew spontaneously out of informal Indian community get-togethers. Indians who moved to cities found that they shared many of the attitudes and the problems of other urban Indians. Across tribal differences, they immediately established friendly ties with Indians who were already established in the cities and sought to help Indian newcomers as they moved into the cities. Eventually, this feeling of comradeship inspired the idea that Indians could help each other out if they organized Indian Community Centers. These centers called "urban centers" present a number of options for Indians facing the urban world. Unfortunately, the Federal Govern- ment has failed to recognize the significance and utility of these centers for administering, or assisting in, the implementation of Federal pro- grams for urban Indians. For newly arrived urban Indians, the center's first function is to provide emergency care. This care may range from provision of food and clothing to finding housing by tracking down relatives or keeping up with available apartment and home listings. After dealing with these emergencies, services run the gamut from education to health care to psychological assistance. 439 It should be emphasized that urban Indians have done mucli to add to the cukural diversity and richness of many of the communities in which they live. Many cities have become justifiably proud of the Xative American population. As a matter of fact, cities like Los Angeles have set the pace with support of Mayor Tom Bradley and other city officials in advocating for their Indian residents. Since this is particularly a discussion of the rule rather than the exception, we must say that the city of Los Angeles is one of the rare exceptions. The reader should not suppose that each urban area is serviced by a highly integrated and consolidated agency called an 'Tndian Center." In many locations, this is a recent effort. In others, Indian centers have existed and worked with many other Indian organizations for a num- ber of years. As Thomas Greenwood, acting president of the Indian Health Service, Inc., of Chicago, 111., stated in his comments on the American Policy Review Commission's tentative final report : In Chicago and probably in many other cities as well, a network of more than twenty Indian organizations services the total population. Several are very general and inclusive in the programs that they offer ; others concentrate on specific issues * * *. The reasons for the multiplicity of organizations are complex — relating to administrative convenience, tribal divergence, certain peculiarities in traditional modes of organization and attitudes toward power, circumstances in funding, and accidents of history. It is not clear whether a single comprehensive agency handling Indian programs in a given city is feasible — or desirable. To designate "Indian Centers" as the recipient of funds without considering the question is simply to invite problems. Suffice it to say, however, that the model center providing multiple services seems to be the most efficient and practical method of deliver- ing assistance whether run by one Indian center board of directors or by a board of several participating organizations. Centers in many cities have set up educational programs, organized job banks and given moral support to those seeking employment. How- ever, efforts are impeded because there is no mechanism for coordina- tion of BIA vocational training programs. Though urban centers keep up to date lists of job opportunities, this knowledge is not used as the basis for the BIA vocational training program. Thus the BIA may train welders in cities offering opportunities for computer programers. Indians themselves have organized more innovative approaches to funding jobs in the city. The Bureau of Indian Affaii-s continues to support Employment As- sistance Offices in most cities with large Indian populations. Yet, these offices do not work with "unofficial" urban centers which are the point of contact for most Indians seeking work. BIA Employment Assist- ance is one of the most needed services for urban Indians, but ironi- cally most urban Indians do not meet eligibility requirements. It is extremely unfortunate in that Federal programs neglect to use grass- roots solutions to this problem. The most difficult off-reservation ser\ace is health care. Physical requirements for facilities and fiscal requirements for personnel make it difficult for the urban center to attempt primary care, let alone the specialized therapeutic services that Indians no^d. Though Public Law 94-437. title V indicated the Government's recognition of the problem, it set up criteria for assistance that are difficult to fulfill. 440 The law states that an urban center must "determine the Indian population which are or could be recipients of health referral or care services . . .'' and "identify gaps between unmet health needs of urban Indians and the resources available to meet such needs." The problem, of course, is the migratory patterns of urban Indians who, defeated by the lack of opportunities available to them in either reservations or cities, often move back and forth from reservation to urban centers Because population determinations are the basis upon which aid is provided, urban Indians are once again short changed. >rEW COMMUNITIES AND CONTINUIXG SERVICES IN NEW ENVIRONMENTS Perhaps the most important contribution of the urban centers to the Indian living in cities has been a psychological one. Having left the tribal community, and often, their families, Indians feel isolation and loneliness. They developed these centers as places where such needs are partly satisfied and where they can join together in social gatherings that substitute for the personal security of the reservation. Some of the centers have evolved from very small groups organized for recreational purposes into multifaceted operations capable of sustain- ing programs in education and vocational training, defense of tenant rights against unscrupulous landlords, counseling, various kinds of entertainment and the provision of emergency relief. There can be no doubt that these Indian service and cultural organizations are a firmly based and creative response to Indian problems. The Indian service centers present an ambitious range of services and objectives. Unfortunately, they must rely on donations and volunteer work. Moreover, leaders who operate these centers are often volunteers and usually overworked. They serve out of a feeling of responsibility to the Indian community. "Wliile this is one of the dynamic and in- spiring aspects of the development of urban centers, it has an un- fortunate long-term effect in that there are necessarily frequent changes in leadership. While individual centers may expand or col- lapse, it is important to realize that the majority of urban centers have provided, and are continuing to provide, valuable services to people who are inadequately assisted through other channels. More- over, they provide these services without usurping the relationship of the individual Indian to his tribe. The centers strengthen the urban Indian's ties to his cultural heritage by providing necessary facilities and services within an Indian setting. These organizations reinforce, rather than destroy, Indians' identification with their tribes and their heritage. Because of the broadbased, highly sensitive services these urban centers provide, the Commission believes that their role in assisting Indians should be strengthened with trained staff and money. The Federal Government should realize that urban centers, created seperately and directed by Indians themselves, are an effective instru- ment for reaching the Government's goals of assisting urban Indians. Indian centers suffer from a lack of management information and procedural standards. Like their reservation-basod counterparts, tribal governments, they are often expected to know the rules when they do 441 not liave them and to live up to unexplained standards. Provision of data on ways to effectively organize and manage the delivery of human services would be of great assistance in enriching the role for ' urban centers. Fiscal and management assistance is necessary if these centers are to provide the kind of service that will enable their people to live productive lives. This assistance should be administered in several ways. in emplojmient, the most expedient way to provide assistance is to build on the philosophy of Indians operating Indian programs. This would entail turning over BIA Employment Assistance Offices and their programs to urban centers. Furthermore, it would provide an administrative base necessary for an urban assistance program. Administration could be carried out by existing urban Indian centers in close cooperation with tribal governments. The Commission devoted a great deal of time to studying this alternative. Part of the study involved contacting urban center direc- tors. While many directors felt the centers could administer funds the best, they acknowledged that tribal governments should also play an important role. As these governments stabilize politically and econ- omically, they could be practical mechanisms for managing funds for their own membership. ^lany programs now directly administered by Federal, State, or local governments are often contracted out to private or public or- ganizations. These are contract awards for urban services which would not be otherwise allocated to Indian tribes. Urban Indian organiza- tions, however, are frequently discriminated against in these kinds of situations, and private non-Indian contractors benefit from contract opportunities which should properly be delegated to Indian profes- sional people. Indian service centers, once given the opportunity and clear identification of the obligations that go with it, are very capable in hiring professionally qualified personnel. Recommendatioxs The Oom/mission recmnmends that : 1. The executive branch of the Federal Government conduct a de- tailed examination of assistance programs and need areas that would be most expeditiously administered by tribal governments. 2. The executive branch provide for the delivery of services to off- reservation Indians consistent with the Federal obligation to all Indians. Accordingly, Congress recommend that the executive branch deliver appropriate services when feasible through urban Indian centers. TJRBAN CENTERS 3. The executive branch provide financial support for Indian centers in urban areas. This could be expedited by turning over BIA Employ- ment Assistance Offices and other Federal contracting opportunities to urban service centers; and delegating Federal domestic assistance dollars directly to urban centers on a fair per capita share basis. 92-185 — 77—29 442 4. The executive branch consider the placement of Federal funds targeted for urban Indians under an Urban Indian Office as a part of their considerations for the Consolidated Independent Indian Agency. 5. The Federal agency funding such urban center or centers deter- mine the actual representation of such center or centers according to a process of membership certified to the agency. EDUCATION 6. The executive branch mandate that urban centers receive : Specific consideration for the receipt of Johnson-O'Malley funds ; Technical assistance and orientation in programing, budgeting, regulations, and funding programs ; Specific roles in program and policy formation in curriculum development for teaching and administrative staff hiring for schools with Indian children ; Funding for administrative and program costs. HOUSING 8. The executive branch mandate that urban Indian centers be sup- ported to provide : ^° A real estate clearinghouse to provide information on available living quarters ; Consumer education programs in the areas of credit procedures, lease information, and general advice on moving from the reser- vation to an urban area ; Grants for initial moving costs, immediate support, rent sup- plements, housing improvements ; and The Bureau of Indian Affairs reestablish the program formerly funded providing equity grants for downpayments to urban In- dians who have lived in the city for more than 2 years. HEALTH 9. The executive branch mandate that appropriate action be taken to provide urban Indians with health care facilities by providing the urban Indian center with funds to : Administer Indian health care programs ; Provide information for health care ; Contract for Indian health care ; Establish health educational programs ; Establish health care programs on its premises ; and Act as a monitor for funds designated for urban Indian health care. 30 These funds are presently provided to the Bureau of Indian Affairs for the same purpose. CHAPTER TEX TERMINATED INDIANS The process of termination and the effects of the policy during the last 20 years are regarded in many quarters as disastrous. Literature and testimony gathered by the Commission are replete with individual and tribal stories of extreme hardship. Many observers have commented that termination transferred Indian people from a dc jure trust relationship with the Federal Government to a de facto dependency on the public welfare system. (443) CONTENTS Page Introduction 447 A decade of bitter controversy 448 Assimilation counterproductive 449 A unique relationship ended 451 Federal Government repudiates termination 452 Recommendations 453 Addendum 454 (445) CHAPTER TEN TERMINATED INDIANS Introductio:n" The Federal Government's most callous treatment of American Indians during this century flared during the 1950's and 1960's. At this time, there was an arrant attempt by the United States to disavow its responsibilities to approximately 100 tribes through legislation known as "termination policy." Tlie process and effects of termination were so disastrous that the policy was discarded, but the period undermined Indian faith in the United States and fanned Indian suspicions and resentment of the Federal bureaucracy. During this period of "termination policy," the United States essen- tially tried to diminish, and sometimes end, its special relationship to Indian tribes by shifting the financial cost to the public welfare systems of several States. More than 11,500 Indian people and I14 million acres of Indian land were affected. Termination became an open invitation to private enter- prises to exploit the land and resources of 100 tribes. Public reaction against this policy and its effects finally impelled President Richard Nixon to remind Congress in 1970 that "the special relationship be- tween Indian tribes and the Federal Government continues to carry immense moral and legal force." President Nixon concluded, "to ter- minate this relationship would be no more appropriate than to termi- nate the citizenship rights of any other American." This short-lived policy, triggered by pressures of private "interests" seeking to acquire Indian lands, was initiated with little concern for the well-being of the affected tribes. The legislation implementing the policy was debated in perfunctory fashion. Termination was forced upon Indians who did not understand its purposes and could not pre- dict its effects. In retrospect, it is impossible to assign one reason for this era of Federal-Indian relations. Several explanations were offered at the time : 1. The notion that relatively well-off tribes did not need a special relationship to the United States Government. 2. The notion that the way to relieve poverty among Indians was to integrate them into American Society. 0. The mounting Indian and congressional disfavor concerning the operations of the Bureau of Indian Affairs. 4. Increasing concern over the undefined law and order juris- diction on or near Indian reservations. 5. The desire of non-Indian interests to obtain commercially valuable tribal lands. (447) 448 6. The desire of the Federal Government to shift its service "burden" to the States, a part of the drive to reduce ''big government." Technically, termination refers to 13 legislative acts which estab- lished authorization procedures for cessation of the Federal-Indian reLationship with respect to particular tribes. Most of these tribes were relatively small. For example, 37 California ranchcrias had an aver- age of 30 members. Not all tribes scheduled for termination were actually terminated. A serious question currently exists whether ter- inination of the rancherias was carried out legally. If not, substantial legal liability rests with the United States. But there were several large tribes terminated; the Menominee for example, had more than 3,000 persons and owned 233,000 acres of land. Termination, as Federal policy, has been officially rejected. One tribe has been restored. But a number of terminated tribes remain as dramatic witnesses to the slowness of current policies of self-determination. A Decade of Bitter Controversy For a proper understanding of termination,^ it is essential to view it historically in the context of Indian policy, not as an isolated aber- ration. Similarly, termination should not be analyzed merely as a series of separate acts altering the status of specific tribes or groups of Indians. Eather, it was a planned and comprehensively carried out national policy, interweaving various Bureau of Indian Affairs policies and congressional actions. The total termination program in- cluded : Assumptions of State civil and criminal jurisdiction over Indians under Public Law 83-280; elimination of laws applicable only to Indians; relocation to the cities; transfer of responsibilities for education from the tribes and the Federal Government to the States; various specific legislative withdrawals of Federal reponsibility. Viewed from this perspective, termination amounted to a funda- mental social restructuring never witnessed before or since in Federal- Indian policy. Termination, a term with emotional overtones,- precipitated a decade of bitter controversy in the field of Indian affairs. It was denounced by some as vicious racist ^ while championed by others as the flowering of democracy and justice.* In large part, the termination era, derived its strength from the century-old desii'c to "assimilate" Indians. The political development of a Federal policy of assimilation was twofold. First, and most im- ^ An excellent and concise fIescripT*ion of the passage of the termination legislation and the history precedius it (from which much of this section is extracted) is contained in AIPRC Task Force No. 10, final report, 1970, hy task force consultant Charles Wilkinson, entitled "The Passage of the Termination Legislation", p. 1627 ; also see Gary Orfleld, "A Study of the Termination Policy", Denver, multilithed by National Congress of American Indians (no date). - "Termination", with its ominous tone of finality, apparently developed as an alternative to the even more sinister-sounding term, "liquidation". See hearings on S. 1222, note 64, injra. When "termination" gained exclusive currency in official circles, it was often exchanged for the former expression by Indians and others, despite Bureau protestations that the two terms were not the same. A similarly unfortunate use of terminology was the name given to the relocation program. Notes 7.5-86 and aceompanving text, infra. Sec R. Burnette, The Road to Wounded Knee, 17 (1074) (hereinafter cited as Burnette). 3 Id., at 16-17. See generally, Cohen, "The Erosion of Indian Rights," 1950-193.1: "A Case Study in Bureaucracy," 62 Yale L.J. 348 (19593) (hereinafter cited as Cohen, "Ero- sion of Indian Rights). * See, e.g., Watkins, Termination of Federal Supervision of Indians. 311 "Annals of the American Academy of Political and Social Science", 47 (1957) (hereinafter cited as Watkins). 449 portant, there was unrelenting pressure from homesteaders, railroads, ranchers, power companies and other acquisitive Americans. These interests agitated for the removal of restrictions on occu])ancy of Indian lands. Second, there was a feeling of generosity or obligation to the Indians, inspired by moral and ethical values — or guilt— to help them obtain the presumed benefits of non-Indian civilization. (Various components of this philosophy, such as the Allotment Acts and the use of education as a policy tool, have been traced in other chapters of this report.^) AssiMiLATiox Couxteeproducti^t: The culture of one people cannot l)e legislated by another. The reservation system was postulated as the modern alternative to com- plete assimihition. but clearly produced strong feelings of dependency and helplessness among Indians. Assimilation had seemed a simple and humane expedient to its supporters. But assimilation policies led to negative results for Indians, including the loss of tribal lands, the frustration of Indian self-realization and the reinforcement of Indian alienation. That it produced dire consequences for Federal policy was also undeniable. In spite of the fact that the policy was based on "good'' intentions, it failed because it did not account for Indians' intentions. This policy problem resulted because non-Indian society, even those peo])le who were "sensitive"' to Indian issues, did not understand or could not face the genuine causes of Indian deprivation. ]Many viewed the persistent poverty prex'alent on reservations as an indication of the reservation system's inadequacy. They construed the special legal status of the Indians, which the reservations represented, as manifesta- tions of poor Federal policy. The fact that reservations were often Indian homelands they had reserved to themselves was often over- looked, as was the history of the development of Indian rights. By the lOoO's the special Federal-Indian relationship was viewT^d as the ob- stacle to Indian advancement, not as a means for advancement. The Bureau of Indian Affairs was similarly seen, by that time, as simply another useless and wasteful Federal agency. Suprisingly, support for assimilation continued through a period of Federal support of tribal self-determination. The Indian Reorgani- zation Act of 19:^4 has been viewed as a major turning point in Fed- eral-Indian relations. It did, indeed, halt some of the mora pervasive components of assimilation, such as allotment. The IRA, however, was not a total rejection of the assimilation doctrine, but rather a modifica- tion of it. In fact, its supporters defended the IRA on the basis of assimilation, saying its purpose was "to assimilate the Indian by let- ting him use his own culture as a springboard for integration." '' After "> See chapters 1, 4, and 8. «W. Brophy and S. Aberle, The Indians. America's Unfinished Business. 1S2 flOfiOk See report of the Committee on Indian Affairs to the Commission on Organization of the Executive Branch of the Government. 72-72 (mimeographed. Oct. 194S). in Trier, "Work- Paper." at 21-22. n. ZH and Tyler. "History." at l.')2-1.5.''., n. 2 ; see also. C. Wesley. "Tribal Self-Government Under IRA." in Kelly, "Twenty Year Record." at 2S. See also. "Com- mission on the Rights. Liberties and Responsibilities of the American Indian, A Program for Indian Citizens" (January 1961) : "While the six termination laws enacted In 19.54 emphasized their purpose of ending Federai supervision over Indian property and terminating the services furnished Indians by the TT.S. because they are Indians, they, in fact, abolished the home-rule governments of the Klamath, Menominee. Paiute, and other tribes, forced the sale of large amounts of land, including forest areas, of the Klamatli Tribe, and made both tribal and allotted trust land taxable hy the states." 450 Word War II, the IRA came under heavy fire as "communistic" and "antireligionistic," so cultural assimilation by tribal self-determina- tion was soon dropped from Federal-Indian polic}' directions. CONGRESS CRITICAL OF BIA Both Houses of Congress conducted critical investigations of Indian Affairs in the late 1920-s through the '40-s. They were extremely critical of the administrative cost of the BIA and its slow ])rogress toward achie^'ing assimilation. In 1947 the Commissioner of Indian Affairs was ordered by the Senate to enumerate ways to eliminate BIA services in an effort to reduce the Federal bureaucracy, generally. The Connnissioner listed four criteria for Congress to consider in lialting BIA services to tribes: (1) Degree of acculturation; (2) eco- nomic resources and conditions of tribes; (3) wdlingjiess of the tribe to be relieved of Federal control ; and (4) willingness of the State to assume jurisdiction.'^ Those criteria later v\-ere used as indicators of tribal readiness for assimilation. By the late 1940's, congressional ijressure forced the BIA to l)egin developing ])rograms oriented to the "eventual discharge of Federal Government's obligation." In the 1947 legislative session, loo private bills were introdTiced to direct the issuance of fee patents on individual trust. Thirteen other bills were introduced to provide for Indian "emancipation'' and the liquidation of tribal trust property. All of these actions shared a common inij^ulse to relieve the Federal Treasury of the mounting costs of government. The cost of adminis- tering Indian affairs, although nnniscule in relation to other activities of government, in^dted drastic budget and program reductions since Indians generallj^ lacked political influence. As it turned out, however, Indians were not willing to see their living conditions reduced below the low level they had already reached. Tribes like the Klamath and the Menominee, although relatively rich in resources, oi:)posed the idea of seeing the abrogation of their treaty guarantees against further alienation of their resources. The response to this often-expressed Indian resistance wa-s increased congressional insistence on termina- tion, led by Senator Watkins of Utah. The Hoover Commission's Report on Indian Affairs ^ in 1949 blithely recommended "complete integration" of Indians "into the mass of the population as full taxpaying citizens." In 1951, Dillon INIyer, then BIA Commissioner, vigorously pursued the Hoover Commission's direction and defined the aa'ency's goals as: (1) Improvement of Indian standards of living and (2) "Step bv step transfer of Indian bureau functions" away from the Bureau. These objectives were to be accomplished through "citizenshiD participation"' by individual Indians and "redefinition of the status" of Indians by termination of the Federal trusteeship and of tribalism itself. It was envisioned that the BIA would induce the "cooperation of persons of Indian descent" in "the present day economic development of this countrv." ^ ■^Hearings on S. Res. 41 before the Senate Committee on Civil Service, SOth Conjr., 1st sess.. at 544-45. « Commission on Organization of the Executive Branch of Government, Indian Affairsr a renort to Concress (Mar. 1949). » 1951 Commissioner of Indian Affairs Annual Report at 353. 451 The capstone of the termination policy was House Concurrent Ee- solution 108/" declaring termination the official congressional policy. Certain tribes were singled out in the resolution for immediate termi- nation. In 9 subsequent years, 13 additional termination statutes were enacted. These actions were not, as notecl, isolated phenomena but had their roots in the idea that Indians could be coerced to assimilate into the mainstream of non-Indian society and Indian lands could be released for sale to non-Indians, This policy did not always arise from selfish motives ; it was often defended in the name of "freedom" for the American Indian. SPECIFIC TRIBES AFFECTED The following chait indicates in chronological order the various ter- mination acts, groups affected and effective dates of termination : " Group Number Acres State Authorizing statute (date) Effective date Menominee 3,270 233, 881 862, 662 2,158 3,200 211,430 42, 839 140 94 100 4,317 834 834 Wisconsin Oregon do Texas Utah do._ California Oklahoma do do California do South Carolina. Nebraska . 68 Stat. 250 (1954) . 68 Stat. 718 (1954) . 68 Stat. 724 (1954) . 68 Stat. 768 (1954) . 68 Stat. 868 (1954) . 68 Stat. 1099 (1954) 70 Stat 58(1954) 1961 Klamath Western Oregon'.- 2,133 2,081 1961 1S56 Alabama-Coushatta... Mixed-blood Utes .-. 450 490 1955 1961 Southern Paiute 232 1957 o 984 1956 Wyandotte . 70 Stat. 893 (1956) . 70 Stat. 937 (1956) . 70 Stat. 963 (1956) . 71 Stat. 283 (1957) . 72 Stat. 619 (1958) . 73 Stat. 592 (1959) . 76 Stat. 429 (1962) 1959 Peoria Ottawa Coyote Valley rancheria California Rancheria Act 3 Catawba Ponca... -.- 466 630 n 1,107 631 422 1959 1959 1957 1961-70 1962 1966 > 61 tribes and bands; figures listed are aggregates. 'Unknown. 2 37 to 38 rancherias; figures listed are aggregates. A Unique Relationship Ended Although there were differences in the various Termination Acts, the policy had a similar impact on a number of tribes. First of all, land was generally removed from trust and often sold and assets were distributed to tribal members. Termination did not affect certain treaty-based rights such as liunting and fishing. But for the most part, the "special" and "unique" relationship between the tribes and the Unitecl States was ended. Tribal members were subject to all state laws and were ineligible for Federal "Indian" services. The wise poli- cies which had been developed in Indian affairs over 2 centuries and which ]-ecognized the special nature of Indian ]3roblems were negated by termination policy, in the selected situations where termination was carried out. The process of termination and the effects of the policy during the last 20 years are regarded in many quarters as disastrous. Literature and testimony gathered by the Commission are rej^lete with individ- ual and tribal stories of extreme hardship." INIany observers have com- ^c H. Con. Res. 108, 83d Cong., 1st sess., 1953. 11 AIPRC report of Task Force on Terminated and Non-Federally Recognized Indians, at 1640. ^' See, e.g., Menominee Tribe v. U.S., 391 U.S. 404 (1968) and Kimball v. Callahan, 493 F. 2d 564 (9th Ar. 1974), cert, denied, 19 U.S. 1019 (1974). 452 mented that termination transferred Indian iDeople from a de jure trust relationship with the Federal Government to a de facto de- pendency on the pnblic welfare system,^^' The Commission's Task Force on Torminated and Non-Federally Recognized Indians reported tribal miMnbers did not fully under- stand the implications of termination and that oppressive tactics were utilized by the BIA to secure tribal consent for termination. Substan- tial questions — and litigation — have been raised concerning the man- agement of the economic assets of the affected tribes, particularly the Klamath Tribe. A significant issue has been raised whether termination legally oc- curred for several California rancherias because of the Federal Go\'- ernment's failure to follow statutorily mandated procedures. Although there is some opinion to the effect that such statutory noncompliance does not invalidate termination in particular situations,^* the dominant view and the proper legal interpi-etation is that such noncompliance invalidates termination and that allegedly terminated Indians are actually still eligible for "special" Indian ser^ices.^"' This question of noncompliance with statutorv procedures raises additional legal issues, including the ]>otential liability of the United States for unlawful termination and potential court action to set aside termination in particular cases. It was the opinion of Eeid Chambers, then the Associate Solicitor, Division of Indian Affairs, that such suits "will almost surely succeed." ^° Federal (iOvernment Repudiates Termination Apart from tlie factual, human, and legal impacts of termination, any of which are sufficient grounds to repudiate that era in Federal- Indian relations, there is anotlier overriding rationale for rejecting termination and its antecedent philosophy of assimilation : Such poli- cies are in direct conflict with the rights of Indian tribes to survive as distinct culture and political communities. The Federal Government has gone far in the last decade to repudiate termination. Congress restored the JNIenominee Tribe in 1973 " and passed the Indian Self-Determination and Education Assistance Act in 1975.^® Both Acts are regarded as rejections of termination philosophy. In 1970, President Richard Nixon, affirming a trend tliat began in the previous administration, announced that official Federal policy would be Indian self-determination. The reasons for rejecting termina- tion are particularly pertinent : ^"^ This policy of forced termination is wrong, in my judsnient, for a number of reasons. First, the premises on whicli it rests are wron.;;'. Termination implies that the Federal Government has taken on a trusteeship responsibility for Indian t" ^lartonp, F. "Ameriran Indian Govpniment In tlie Fodpral System, Inherent Right or Consressionnl License," 51 Xotre Dame Lawyer, 600, 616 (1976). 1' Memorandum of Apr. 15, 1976, from Regional Solicitor, Sacramento (Department of the Interior) to Autis Herge, Special Assistant to the Solicitor, "Recommendations re June 25, 1975 Memorandum concerning Rancheria Act." i"' Memorandum of August 25. 1976, from Associate Solicitor, Division of Indian Affairs to Solicitor. Dept. of the Interior, "California Rancheria Act." 16 Ihid., at 22. " 25 U.S.C. sec. 90-3 (supp. 1975). « Public Law 93-638, 88 Stat. 2203 (1975). i» President Nixon's July 8, 1970, message to Congress, H. Doc. No. 91-363, 91st Cong., 2d sess. 453 commnnities as an act of generosity toward a disadvantaged people and that it can therefore discontinue this responsibility on a unilateral basis whenever it sees tit. But the unique status of Indian tribes does not rest on any premise such as this. The special relationship between Indians and the Federal Gk»vernment is the result instead of solemn obligations which have been entered into by the United States Government. Down through the years, through written treaties and through formal and informal agreements, our Government has made specific commitments to the Indian i>eople. For their part, the Indians have often sur- rendered claims to vast tracts of land and have accepted life on government res- ervations. In exchange, the Government has agreed to provide community serv- ices such as health, education, and public safety, services which would presumably allow Indian communities to enjoy a standard of living comparable to that of other Amei'icans. This goal, of cour.se, has never been achieved. But the special relationship between the Indian tribes and the Federal Government which arises from these- agreements continues to carry immense moral and legal force. To terminate this relationship would be no more appropriate than to terminate the citizenship^ rights of any other American. The second reason for rejecting forced termination is that the practical results have been clearly harmful in the few instances in which termination actually has been tried. The removal of Federal trusteeship responsibility has produced con- siderable disorientation among the affected Indians and has left them unable to relate to a myriad of Federal. State, and local assistance efforts. Their economic and social conditions has often been worse after termination than it was before. The third argument I would make against forced termination concerns the effect it has had upon the overwhelming majority of tribes which still enjoy a si)ecial relationship with the Federal Government. The very threat that this relationship may someday be ended has created a great deal of apprehension among Indian groups and this apprehension, in turn, has had a blighting effect on tribal progress. Any step might result in greater social, economic, or polit- ical autonomy is regarded with suspicion l»y many Indians who fear that it will only bring them closer to the day when the Federal Government will disavow its responsibility and cut them adrift. Termination policy was poorly conceived and poorly executed. The disastrous effects it caused cannot be denied, and the Federal Govern- ment was itself surprisingly quick to realize that the policy had been a mistake. The Commission applauds current policies which repudiate termination, and advises that termination unist never again be forced on Indian tribes. Repudiation of this policy, however, must be accom- panied by restoration of the status of the many tribes which were adversely affected by termination. Recommendations The Commission recomrnemls that: 1. Congress by joint resolution specifically repudiate H. Con. Res. 108 and the policies of assimilation and termination that it rep- resents, and commit Federal-Indian policy specifically to Indian self-determination. 2. Congress provide appropriate legislation for an administrative restoration process adhernig to the following principles.-" a. Purpose of the Act : To establish standards and procedures by which terminated Indian tribes may be restored to the status of sovereign, federally recognized Indian tribes ; to restore to ter- minated Indian tribes and tribal members those Federal rights^ privileges, and services to which federally recognized Indian tribes and their members are entitled. -"See. AIPKC. rpport of the Task Forre on Terminated and Non-Federally Recognized Indians, at 1705 for suggested legislation adhering to these principles. 454 b. The policy of termination was wrong and Congress expressely recognizes that fact. All reasonable steps be taken to fully and quickly restore Federal i-ecognition to terminated tribes, reestab- lish their land base, and restore tribal sovereignty. All Federal moneys expended pursuant to the Act be over and above existing appropriations for Indian affairs. c. Any tenninated tribe may file a "petition for restoration" with the Secretary of the Interior. The Secretary shall grant the pet- tion where: (1) the tribe is maintaining a tribal identity, and (2) restoration is favored by a majority of the tribal members actually voting in an election. The Secretary shall liberally con- strue the ]:)etition in favor of the tribe and any denials of petition shall be "without prejudice to the tribe's right to refile subsequent petitions. If a petition is granted, the Secretary and the tribe shall negotiate a restoration plan, the tribe will be eligible for all Fed- eral services and benefits, and all rights of the tribe under Federal treaty, statute, executive order, agreement, or otherwise shall be reinstated. d. The restoration plan provide for election of an interim tribal council, adoption of a tribal constitution and bylaws, revision of the tribal roll, establishment of reservation land in trust, and other specifics. Congress retains the power to approve or disap- prove any restoration plan. e. Nothing in the Act alters preexisting rights or obligations or affects the status of any federally recognized tribe. f . The Act be construed in favor of Indians ; the Secretary of Interior shall cooperate with tribes seeking restoration ; his action is subject to review by a Federal court; and other specifics. g. Authorization for whatever appropriations are necessary to implement the Act. h. The Secretary of Interior is authorized to adopt regulations necessary for carrying out the Act. 3. Congress, as an interim measure, recognizing the hardships caused by terminations, by legislation specifically extends appropriate Fed- eral-Indian services to "terminated" Indians. Addendum: The Restorattox Process as Proposed by Task Force Ten The Uestoration Act provides the following steps which a terminated tribe would be required to take in order to achieve restoration : (1) The tribe files a short and simple petition with the Secre- tary requesting restoration (sec. o(a)). The petition must be signed under oath by some representative group of the tribe. (2) Within 10 days the Secretary, construing the petition in favor of the tribe, must determine whether the petition is legally sufficient on its face (sec. 3 (c) ( 1 ) ) . If the petition is insufficient on its face, the petition is denied but the tribe can refile at any time. (3) If the Secretary finds that the petition is sufficient he must conduct an election pursuant to sec. 3 (c) (2) ) . The election must be called within 15 days and held within 60 clays after the ruling on the petition. The purposes of the election are: (1) to determine 455 whether a niajority of tribal members actually voting in the elec- tion are in favor of restoration and i'2) to choose the members of the interim tribal council which will represent the tribe during the restoration process. The election procedure in sec. 3(c) (^) is informal and gives the Secretary substantial leeway. Any tribal member 18 years or older ma}' vote. Tliis includes people born -after termination (see definition of tribal member, sec. 2(c)). It should be noted that the selection of the interim tribal council by election at an early date will serve to avoid claims of legitimacy by opposing tribal groups. (4) If the tribe does not vote in favor of restoration, the peti- tion is denied although the tribe can refile after 6 months (sec. 3(c)(3)). (5) If the tribe votes in favor of restoration, the tribe has met one of the tAvo standards for restoration (sec. 3(b) ) and the Sec- retary will then proceed to determine whether the tribe meets the second standard, i.e., maintaining a tribal entity. The definition of tribal identity is broad (sec. 2(d)) and will probably be met by most tribes. The inquiry must be completed within 60 days after the election. (6) If the Secretary finds that the tribe is not maintaining a tribal entity the petition will be denied and the tribe can refile after 6 months (sec. 3(c) (5)). (7) If the Secretary finds that the tribe is maintaining a tribal identity, the Secretary must grant the petition for restoring (sec. 3(c)(6)). Under (sec, 3(d)) the granting of the petition has these immediate effects. First, the Secretary and the tribe will proceed to negotiate the restoration plan under sec. 4; that pro- cedure will be discussed below. Second, the tribe and its mem- hers (including members born after the date of termination (sec. 2(e) ) will be entitled to Federal benefits. Third, all rights under treaties statutes. Executive orders, and agreements will be immedi- ately reinstated. This provision is probably the most controver- sial aspect of this act. Although the Menominee Tribe had all of its treaty rights reinstated, hunting and fishing interests will vigorously oppose this aspect of the proposed act. The section is included in this form because of the precedent in the Menominee Restoration Act; the section could be changed to provide that certain treaty rights, such as hunting and fishing rights, will not be affected in any manner by granting of restoration. Fourth, the interim tribal council, which will represent the tribe during the restoration process, will take office (sec. 3(d) (4) ) . The interim tribal council will have the powers of tribal coun- cils of federally recognized Indian tribes except that it will be replaced when the constitution and bylaws go into effect; in ad- dition, the interim tribal council cannot bind the tribe for a pe- riod of more than 6 months after the end of its tenure. (8) The Secretary will then proceed to negotiate a restoration plan with the interim tribal council under (sec. 4.) The matters to be contained in the restoration plan are set out clearly in the act. One important, and possibly controversial, point is that (sec. 4(a) (6)) permits the tribe to make its own decision on the ap- 456 plicability of the Indian Eeorganization Act and Public Law 83-280. (9) The restoration plan must be negotiated and submitted to Congress within 6 months after the granting of the petition for restoration (sec. 4(a)). (10) The plan will go into effect within 2 months after submis- sion of the plan to Congress unless either House rejects the plan; (sec. 4(d)). (11) The next job is to implement the restoration plan, includ- ing adoption of constitution and bylaws, preparation of a tribal roll, and establishment of a reservation. There are no time limits for the completion of the implementation of the restoration plan although the plan must be completed "as early as practicable" (sec. 4(b) ). The lack of specific dates is due to the fact that cir- cumstances will vary widely among the different tribes. CHAPTER ELEVEN NONRECOGNIZED TRIBES Inconsistencies and oversights in the Indian policy of the United States are exposed by one stark statistic: there are more than 400 tribes within the Nation's boundaries and the Bureau of Indian Affairs services only 289. In excess of 100,000 Indians, members of "unrecognized" tribes, are excluded from the protection and privileges of the Federal-Indian relationship. (457) 92-1 8o— 77 -30 CONTENTS Page Int roduction 461 Murky precedents, quirky aduiinistration 462 Indefensible bureaucratic decisions 462 Turmoil in Indian communities 462 Accidents of history 463 Colonialism harsh on Indians 464 Federal continuation of colonial oversights 465 Tribal communities dispersed, lost 465 Landless Indians 466 Available inform ation on nonrecognized tribes 467 Chart 468 Recognition Policy, a "Catch 22" 476 The BIA and the Department of Interior 476 The Congress 477 The Courts 478 The Tribes 478 ■Conclusion: policy needs 479 Recommendations 479 Congressional declaration of policy 480 Creation of a special office to affirm recognition of all tribes 480 Additional recommendations 483 (459) CHAPTER ELEVEX NONRECOGNIZED TRIBES IXTRODUCTIOX Inconsistencies and oversiglits in the Indian policy of the United States are exposed by (jne stark statistic: Tliere are more than 400 tribes Avithin the Nation's bonndaries and tlie Bureau of Indian Affairs services only 289.^ In excess of 100,000 Indians, members of "unrecoo:- nized" tribes, are excluded from the protection and privileo;es of the Federal-Indian relationship.^'' There is no legal basis for withholding general services from In- dians, with the sole exception of specific termination acts. There is no legitimate foundation for denying Indian identification to any tribe or comnumity. TJie BIA has no authority to refuse services to any member of tlie Indian population. ^lany unrecognized tribes have land title problems and are en- meshed in jurisdictional cpiestions. They are severely handicapped by poor health, lack of educational opportunities and economic difficul- ties, yet they receive no assistance from the Federal Government. Nearby State and count}- officials are confused by the nebulous politi- cal status of these tribes. The inequitable administration of Federal programs and laws stems, in large measure, from the accidents and vagaries of history. Non- recognition is incomprehensible to Indians who have been neglected and forgotten. There is no valid reason for it. Long-deferred justice can be given to abandoned tribes only by a congressional declaration stating that all Indian people are included in the Federal trust re- sponsibility and the anomalous term, "nonrecognized", is as obsolete as the circumstances that led to its invention. At the root of this problem is tlie identification of tlie rights of all Indian peoples to Federal Indian progi-ams, laws, and protections. Since this process of identification has been inconsistent, a number of Indian people have been denied services either because they are not identified as ••Indians" or as "tribes" as the terms are used in United States policy and law. To dispel this problem, and to direct the Federal-Indian policy to all Indian peoples, the term "Indian tribe" is defined by any one of a series of definitional factors enumerated in the recommendations which follow, and is intended to apply to all Indian peoples, including Indian communities, bands, clans, soiueties, alliances and groups, whether amalgamations or fragmentations of Indian tribes; but its use in this chapter is not meant to divide any 1 Figures ascertainpcl by calUnjr the BIA, ancl by adding the number of known uiirpcni;- nlzed communities. F'rom the chart compiled by David Harmon and Suzanne Ahu of the American Indian Policy Review Commission staff. ^a See the chart of iionrecojruized tribes on p. -illS. (4G1) 462 presently recognized tribal entities, or to apply to any people who are already formally recognized as part of a tribe by the United States Government for purposes of Federal Indian law or programs. Murky Precedents, Quirky Ad^mixistration Trying to find a pattern for the administrative determination of a federally recognized Indian tribe is an exercise in futility. There is no reasonable explanation for the exclusion of more than 100 tribes from the Federal trust responsibility. The distinction the Department of the Interior draws between the status of recognized and unrecognized tribes seems to be based merely on precedent — whether at some point in a tribe's history it established a formal ])olitical relationship with the Government of the United States. The procedure was subject to an accident of history. A number of Indian tribes are seeking to formalize relationships with the United States today but there is no available process for such actions. The special Federal-Indian relationship usually was established by treaties. There are tribes, however, which have no treaties and receive services from the BIA ; and there are tribes which signed treaties but do not receive services. Now. as pointed out earlier, the United States no longer negotiates treaties with Indian tribes. Congressional measures mentioning a specific tribe often are used as a basis for a tribe's special relationship with the U.S. Government, but there are tribes mentioned in legislation that receive no Federal attention. And there are tribes which never were mentioned in legisla- tion that receive services. Administrative actions by Federal officials and occasionally by mili- tary officers sometimes have, at other times, laid the foundation for Federal acknowledgment of a tribe's rights. Yet, some tribes attracted temporary attention and later were ignored while others simply drew no attention. IXDEFEXSIBLE BUREAUCRATIC DECISIOXS The Bureau of Indian Affairs has no clear authority to deny services to any tribe and never has rationalized its vague policy of excluding a particular tribe. Most legislation affecting Indian policy and law is directed to Indians generally, addressing the general historical situa- tion inherent in Federal-Indian relations. Congress' intent often has been to seek solutions to the problems confronting all Indians. Except in the specific, well-defined cases of terminated tribes, there is no foundation for the executive branch's refusal to serve any tribe.^ There is no question that Federal programs and laws are applied inequitablv among Indians tribes. The Department of the Interior has enforced these laws only in selected Indian communities without justi- fying its process of selection. TUraiOIL IX IXDIAN COMMUNITIES Poorly defined administrative discretionary practices have resulted in widespread confusion affecting the lives of Indians and other - Task Force Ten final report, p. 16f>6. See also Thomas N. Tureen. "Federal Recognition and the Passamaquoddy Decision", in Task Force Ten's report, pp. 165.3-74. 463 citizens throughout the United States. A number of Indian and non- Indian communities are troubled by unclear land titles because Indians who may own the land are not recognized as Indians by Federal officials. In many areas, tribes arguing jurisdiction over their members and their land have won or lost solely at the discretion of local govern- mental representatives. Withholding of recognition has led to bizarre social consequences. There were incidents when Indians speaking their tribal languages were committed to mental institutions because their neighbors, who did not acknowledge their Indian identity, thought they were having "fits." " In Louisiana, marriages by tribal custom were not recognized as legitimate on the grounds that the Federal Government did not recognize tiie tribes themselves.* A more widespread occurrence is that Indians asserting their tribal identity are accused by non-Indian ]ieighbors of being imposters.^ Task Force Ten summed up the impact of this confusion on Indian connnunities : The results of "nonrecognition" upon Indian communitios and individuals have been devastating, and highly similar to the results of termination. The continued erosion of tribal lands, or the complete loss thereof ; the deterioration- of cohesive, effective tribal governments and social organizations ; and the eli- mination of special Federal services, througli the continued denial of such serv- ices which Indian communities in general appear to need desperately. Further, the Indians are uniformly perplexed by the current usage of "P'ederal reeognii- tion" and cannot understand why the P'ederal (xovernment has contiimally ignored their existence as Indians. Characteristically, Indians have viewed their lack of recognition as Indians by the Federal Government in utter disbelief and complete dismay and feel the classification as "nonfederally recognized" is both degrading and wholy unjustified." Accidents of History Stated administrative refusal to recognize certain tribes is a rela- tively recent phenomenon that gained some support during the years Congress sought to terminate the Federal relationship with specific tribes. The BIA appears to have believed that since termination was the new policy Congress would not want to acknowledge the special relationship t"o other tribes. The neglect of certain tribes, however, has deeper roots than termination policy. It often is the result of long- forgotten historical accidents. Wliile the United States was expanding across tlie North Americaii continent, it was confronted by a formidable task. It was necessary to incorporate or resolve the policies and legal traditions of the colonial governments of France, Spain. Mexico, and Eussia in addition to the English systems which were fundamental to early federal development. In accepting jurisdiction over former colonial territories, xVmerican officials had difficulty collecting, translating, and resolving the agree- ments former power's had made Avith Indian tribes. Many tribes which Avere Avell-known participants in colonial affairs were unfamiliar to the United States. Some tribes were so weakened by colonial govern- 3 Iiitofrtiction papers from the Avoyelles Parish Court House, Marksville, La. The cases involved two members of the Ofo Tribe, whose language is now extinct. 4 Stefiostrie Yovchicant v. Texas and Pacific Raihvny Co. La. 22808. " fiee Task Force Ten report, sections submitted by tribes. Task Force Ten report, p. 1695. 464 ments that they Avere overlooked. Other tribes avoided contact with colonial g'overnments and the TTnited States, A brief discussion of this ])eriod provides an nnderstandino- of the complications in this hidden side of American Indian history.^ In the 13 original colonies, some tribes supported England in the War for Independence and were regarded as enemies by Americans. They were treated with disfavor, encouraged to leave the country, and were forgotten in subsequent years.® COLONIALISM HARSH ON INDIANS Conversely, in the southeastern and Appalachian regions, where England had competed with France and Spain for control. Indian eiiemies of England were regarded as enemies of the United States. They were subjugated and ignored.^ The Louisana Purchase from France guaranteed that Indian treaties with former powers would be honored by the United States. Those treaties were ignored and the tribes were forgotten.^'' In the Floridas. which the United States and Spain contested until 1819, Indians who were allies of Spain lost much of their lands, fled to isolated areas and hid from the advancing Americans.^^ Mexico's agreements with the tribes of Texas, and the liberal Indian policy which later was administered by the Republic of Texas, were largely forgotten after Texas joined the Union, Many tribes in Texas were ignored after statehood. ^^ Along the northern borders of Michigan, Minnesota, North Dakota, and ISIontana, some tribes moved freely between American territory and Canadian provinces. Both countries left the responsibility for dealing with those tribes to the other government.^" In the southwest, Indian pueblos which had existed independently from time immemorial and were recognized as self-governing entities by Spain and ]Mexico, were ceded to the United States along with surrounding territory. They were ignored by Federal Indian policy for hajf-a-century, and some have not been recognized yet as pueblos.^* In California, a similar situation developed with the Spanish- organized Indian rancherias. They w^ere absorbed by the United States with no claritication of their Indian status. ^^ In the Pacific Northwest, tribes which had balanced the competing interests of England, Russia, and Spain for centuries, lost the achieve- ments of generations of tribal diplomats when the United States estab- lished control of the region. The Americans found little use for native alliances and ignored a number of tribes,^" " Much of the following section evolved from "Those Whom Even Time Forpot", oh. 12 of Kirke K. KickinRbird and K.iren Ducheneaux, "100 Million Acres" (Macmillan, New York. 197:5), 196-210. ■* Sre New England tribal histories in Task Force Ten report, 71-1,30. "Ernest C. Downs. "Tlie Strug-gle of the Louisiana Tunica Indians For Recognition." a chapter to be published in Walter L. Williams, "Southeastern Indians Since the Removal Period." 10 See Carol ,T. ]\reyer, Jr.. "The Louisiana Purchase and Indian Rights," in the American Indi.in .Tournal, October 1976. 11 Kickingbird and Ducheneaux, op. cit., 208. 1^ E.g., the Tiguas and Alabama-Coushatta gi-oups ; speech of Vine V. Deloria, before a conference of Anthropologists and Indian People in Alexandria, La., January 1973. ^•■i Kickingbird and Ducheneaux, op. cit., 203-205. 14 ,*?pp Task Force Ten's report on the Pascua-Yaqui, pp. 131-147. 1^' Task Force Ten report, introduction. 16 (See Warren Cook, "Floodtide of Empire" (Yale, 1976), passim. 465 Across the continent, there were tribes which quietly fled colonial settlements and which were completely forgotten by all governments administering the colonies. Tribes seldom benefited from the colonial period. Those who partici- pated in the colonial schemes of European nations suffered the mis- fortunes of their European allies without having the advantage of returning to a safe homeland. Many tribes who accustomed themselves to one colonial power had their worlds overturned later by a more formidable power. Rights guaranteed by one European nation not always were pro- tected by later colonizers. Tribes who refused to side with any invad- ing power usually found themselves distrusted and unaided by all Europeans. FEDERAL COXTINUATIOX OF COLONIAL OVERSIGHTS Not all the tribes neglected by the United States in the last two cen- turies were forgotten because of historical accidents in colonial times. A number of tribes were lost as a direct result of Federal Indian policy. Tribes "lost" after American independence avoided contact with Americans. Indians, who perceived that Federal policies would be harmful to their tribes, that government officials sought to divest them of their land or that Federal agents Avere corrupt, often decided to re- main in hiding. These isolated tribes did not realize or did not believe that there were Federal laAvs designed to protect their lands and that some Federal programs might have given them needed services. Even when administrators of Indian programs attempted to ameliorate the conditions of tribes, it was likely that peaceful tribes which had not fought against the United States would be unknown and, consequently, overlooked. Tribes willing to relate to Federal officials sometimes were lost due to bureaucratic oversight or the inept administration affecting them.^'' In Massachusetts and other Eastern States, tribes which had sur- vived British and American conflicts sometimes found themselves the object of concerted assimilation programs. Indians who resisted the policy achieved hidden independence in isolation. Others who became "Christian Indians" or "Praying Indians" were noted in BIA records but were treated as though they had ceased being "Indian." ^^ TRIBAL COMMUNITIES DISPERSED, LOST The Removal Policy contributed to wide dispersion and loss of Indian tribal communities. The first remoral treaties promised land west of the Mississippi River, but later treaties located "Indian Terri- tory" hundreds of miles farther west. During the period between the two types of treaties, a number of Cherokee, Creek, and Choctaw towns had moved to the areas promised, unaware that new treaties had changed their official destinations. They settled in Arkansas and Louisiana believing they were fulfilling their part of the treaty.^'' " Kickingbird and Ducheneaux, op. cit. I'' Task Force Ten report, 71-130. li'.^ee Hiram F. Gregory, "The Jena Band of Louisiana Choctaw" in the "American Indian Journal, ' Feb., 1977. 4i86 Circumstances occasionally caused the accidental exclusion of tribes which would have participated in treaty negotiations with the United States. A day's delay, while an official traveled to the place appointed for the treaty, could result in a group's return home. Snowstorms in the Northwest prevented the attendance of tribes in some treaty proceedings.-" In many situations, bands of Indians who disagreed with the pro- visions of treaties walked out of the negotiations in protest. Years later they suffered because they had no treaty rights, however limited.^^ Some policies implementing treaty provisions also contributed to tribal isolation. Forced relocation of tribes on reservations, for exam- ple, did not take runaways into account. In Arizona, one tribe that was relocated on a reservation with an unfriendly tribe simply returned to its original homeland without telling Federal officials.^^ When Congress legislated the end of the treaty -making period in American Indian policy in 1871, one Federal official foresaw the prob- lems for tribes that had not yet established relations with the Federal Government. In his 1872 report, the Commissioner of Indian Affairs made these comments : This action of Congress . . . presents questions of considerable interest and mucli difficulty, viz : What is to become of the rights of the Indians to the soil over portions of territory which had not been covered by treaties at the time Congress put an end to the treaty system? What substitute is to be provided for that system, with all its absurdities and abuses : How are Indians, never yet treated with, but having in every way as good and complete rights to por- tions of our territory as had the Cherokees, Creek. Choctaws, and Chickasaws, for instance, to the soil of Georgia, Alabama and Mississippi, to establish their rights? =' LAISTDLESS INDIANS The Allotment policy, parceling out Indian lands to individuals, did not always provide for the tribe's total population. Landless In- dians were forced to move off the reservation and regroup in neigh- boring towns or cities.-* The Indian Reorganization Act of 1934 tried to rectify a number of these situations. At that time, in fact, the word "recognized" was first applied to Indian tribal governments. Prior to passage of the TEA, the Bureau of Indian Affairs had seen tribes as being "under the jurisdiction of the Federal Government." -^ The Act proposed the purchase of land bases for some small tribes which had lieen previ- ously unknown. World War II interfered with these plans, however, and the tribes were forgotten again.^^ By the 1950's, interest in preserving the special status of Indian tribes had waned and in specific cases tribes were terminated. One Louisiana Congressman who sought Federal programs for five un- recognized tribes in his State received the following response from the BIA: "Current policy in Indian affairs is to promote the social and economic development of Indian tribal groups now under our =" Kpn Hansen : ftee Tnsk Force Ten Eeport, pp. 181-191. =1 Historical rosenrch conducted for TJ.fi. v. Washington, unpublished. "Kickin^hird and Ductieneaux, 199-202. -■■' Report of the rommissioner of Indian Affairs for the year 1872 ; cited in Task Force ^One final report, p. 95. -* Kickinsrhird and Ducheneaux, 203-205. =- 24 U.S.C. 479. -8 Kickingbird and Ducheneaux, op. cit. 467 jurisdiction so that, as rapidly as possible, they may become independ- ent of their special relationship with the Federal Government." -^ From that time to the present, varions reasons have been given for the BIA's reluctance to serve some tribes as it does others. Available Ixformatiox ox Xoxrecogxized Tribes Since most of these tribes are in isolated locations and have never been served by the Federal Government under the denomination of "Indians", it is extremely difficult to collect information on them. In many cases, these tribes resist outside investigators asking for infor- mation. A few publications have appeared recently in defense of these tribes, but they often have relied on outdated information or vague estimates. Despite these unavoidable difficulties. Commission staff members, have prepared a chart of known nonrecognized communities, their locations, populations, their colonial treaties and/or United States treat}' rights, whether they have been mentioned in BIA records, what services they receive, and the services for which they have expressed a need. The chart contains many gaps and shortcomings which cannot be corrected at this time without more accurate data. It is important, however, to use the chart to locate almost totally unknown tribes not referred to in any other single source. To summarize the findings in the chart, which is admittedly incomplete, these pertinent facts can be presented : There are approximately 133 nonrecognized Indian communi- ties in the United States. Seventy-six communities have stated population figures. The total nonrecognized population appears from these estimates to be in excess of 111,728. There are at least 23 such Indian communities with land even tliouirh Federal officials do not protect that land by applying laws pertaining to Indian tribal lands. At least 37 communities have had formal treaty relationships with gOA^ernmental powers that predated the United States. At least 29 communities have United States treaty rights de- rived either from obligations the United States assumed from colonial powers or from treaties the United States negotiated Avith these or other Indian tribes. At least 25 of these tribes have been mentioned in BIA records and, therefore, are familiar to the United States as tribes of Indians. Of the tribes receiving services, most get funds from a few Federal programs: CETA funds administered by the Depart- ment of Labor, Indian Education Act (title IV) funds admin- istered by the U.S. Office of Education, and some OXAP programs. The most frequently expressed needs in these communities are education, health services, housing, land, and legal assistance. [The chart follows.] =^ Letters kent bv the PiPiitp family and the Barbry fnmily of the Tunica Tribe, photo- conied and filed at the Institute for the Development of Indian Liw, Washington. 468 g c a> 00 X—. W • ■ ->->->->- >f " ":S>^ ">- CDOU1 — OOg O otnooooO g O S; ' cci£.-es o o 3 O O O ZJ 3 , r -CIJ3 .c o o ; 470 1= if "ceo o gS '5 O^^ o ^ — o ra — .— S ° 2 oj-u J ■o o'q: 0, s=;. ''"O £ CO = 3 — S U O 2t\ =S :30 ro O — "cc 2: ; — o 3 -^ ^ CD c ^ ~. _S -c lj- g'^o: ti'S- ro— o c ■=£ ooooo: ES ooo 471 lUJUJ .>-~ ; e ; = o- ii:;i: ^^oo ,rtrO ;cc_ J CD- {II c a. E E 00 o ■rr • * CO — o O TO H CO S 5- 00 111^ o->->->->->->->->->->->- CD C3 C3 C3 O C3 CD C3 C3 IT) IT) to C3 CO --< in m 535E = E ■- o = ra =■ c^ ™ " to o 1 II § 1^ E o <2 s -co I • ■ ■ ■:^ > ."S ."S .-5 ."S *- -^ o~ o o o o o- cr Q)mQ>(UQ>a)^ >- = •5 3 = 3 30 O :' et 03 3 Jr — 3 o ES 475 Is |i i ■5.S e^iS S o c 7_ a> .pUJ o - o » « X E 5" -S.^ c S2 ^ So ^ §~o ■- c >-(5 . in, 50. BAE 145 118-119; marin, p. ist. 9 ° = •SrS i: o oo ra £.= E 3 o . _o r.,- ^- ^ 1 o'o craO-SraoO-raQ.^ oororo o™ — S ra ra ra ra o"— ' i°i=-ro'-5?'So- ^CQI^t^OOt^OQ-'^ 'o-^'^ 5 co-o ^ to a> E_J li. So ;2?3 o 2SS:_-^ • • g„-5 . . . = < -3 ■-= S'cAcr.cn . -" E'^°'2:^— Sf^a-<~~ a'S^ = S~ m'^S "«=°°°° xH So-OOO"" ° no,<^-o--o'J2£=^s.2££-'- E i S e:::^^; E-Kp s o-s-g-Kii^ E>,'^§-^'iin he officially informed the Natives that he was going to attempt to re- serve a number of types of easements not authorized by Congress, in- cluding linear shoreline easements and blanket easements over the beds of nonnavigable water courses, the Na,tives took him to court. The Secretary then took the position that he could not issue interim conveyances to the Natives while his easement authority was being challenged, except the Natives would enter into complex agreements, partially surrendering their challenges, which M'ill become effective only when incorDorated into iudicial stipulations. Thus does the Secre- tary postpone the vesting of the Natives' lands while bootstrapping 498 a usurpation of autliority into a requirement that the Natives sur- render in part their judicial challenges to such usurpation. Congress itself prescribed that the Natives are to receive a total of 40 million acres of land and, by and large, specified the formulas by which and the geographic areas from which the land is to be conveyed. Accordingly, the functions of the Secretary in carrying out the Native land provisions of the Settlement Act are substantially more min- isterial than discretionary. As the purpose of the provisions of the Environmental Policy Act that require the preparation of environmental impact statements is to guide the Executive in carrying out projects in connection with which he has substantial discretion, such purpose is not applicable in a case, like that ^^resented by the Native land grant provisions of the Settle- ment Act, where the duties and functions of the Secretary, and the manner of their discharge, have been rather precisely mandated by Congress. If, however, in spite of these considerations that militate against the applicability of the impact statement provisions of the NEPA to the Native land grants, it were to be judicially determined as some are contending, that such provisions are applicalDle, the receipt of the lands to which the Natives are entitled under the Settlement Act un- doubtedly would be further delayed for protracted and unconscion- able periods. The Natives have been forced into the courts repeatedly to protect their rights under the Settlement Act from attempted derogations. In addition to their now pending suits (Calista, et al. v. Kleppe and Sealasha Corp. v. Secretary^ U.S. Dist. Ct., Alaska) to protect their lands against the imposition of unlawful easem.ents, a few other examples of such litigation are : (1) Section 7(a) of the Settlement Act provides for the reso- lution of boundary disputes between regions by arbitration. The Secretary undertook to place an arbitrary time limit on such ar- bitrations. The courts held he was without authority to do so. Central Coun. of Tlingit <& H. Inch v. Chugach Native Ass^n, 502 F. 2d 1323 (9 Cir. 1974) , cert, den., 95 Sup.' Ct. 1680. (2) The Secretary took the position that he could deny applica- tions for land made by individual natives under section 14(h) of the Act without according hearings. The courts held that this was a denial of due process. Pence v. Kleppe., 529 F. 2d 135 (9 Cir. 1976). (3) The Secretary asserted in connection with determining that certain Native villages were ineligible for land grants under the Act that he need not accord them certain rights guaranteed by the Administrative Procedure Act. The courts disagreed, dis- countenancing, among other things, the Secretary's attempt to im- pose conditions for eligibility not found in the Act. Koniag, Inc. V. Klepve, 405 F. Supp. 1360 (D.D.C. 1975) . (4) And, of course, relative to the 13th region, the Secretary's conduct in preparing the Alaska Native roll was found wanting in a number of particulars. AlasTca Native Ass'^n of Oregon v. Morton, 417 F. Supp. 459 (D.D.C. 1974) . The Natives are currently not entitled to recover attorney fees where they successfully sue the Secretary on claims involving attempted der- oo;ations of their rights under the Settlement Act. 499 It is likely that Congress will undertake consideration this year of various bills to carry into effect the contemplation of section 17(d) of the Settlement Act that additional lands in Alaska (i.e., 80 million acres, more or less) should be added to such systems as the National Forests, Parks, Wildlife Refuges, and Wild and Scenic Rivers, or otherwise set aside for particular Federal uses and purposes. In many cases, the Natives look to and use the lands (and the prod- ucts thereof, including fish and animals) that are the subjects of these bills for their subsistence and economic maintenance. They can neither subsist themselves nor continue to conduct their traditional economic enterprises (e.g., commercial trapping) on the lands they are to re- ceive under the Settlement Act because such lands are not sufficiently extensive. The Natives are concerned, first, that the placement of the lands they now use and require to maintain themselves into particular categories or systems not have the effect of impeding or prohibiting them from continuing to use such lands for traditional economic and subsistence purposes. Second, the Natives are concerned that the place- ment of Federal lands into particular categories or systems not have the effect of restricting the uses that might be made of the lands they receive under the Settlement Act. They are afraid, for example, unless such result is specificall}^ avoided by Congress, that the placement of Federal lands in certain categories or systems might impose environ- mental standards on such lands (e.g., respecting the quality of air or water) that would have the effect of preventing the Natives from developing their own lands in the vicinity of such Federal lands in accordance with their highest and best economic uses. The Natives, for example, do not want to find themselves in the position of being unable to operate a smelter, mill, or refinery on their own lands because Fed- eral lands in the vicinity are placed in the National Park system under standards for the protection of the environment that effectively preclude the use of the Natives' lands for such purposes. Some Natives have expressed concern that the provisions of the Settlement Act that subject their lands to State and local taxation and render the stock in their corporations alienable after 1991 are pregnant with potential to deprive them eventually of their lands and of control of their corporations. They point out that in many instances the Natives selected lands for traditional subsistence and lifestyle values and that such lands have little productive potential, in terms of the whiteman's economy, and small chance of ever being able to '■pay their own way" in such an economy. They are keenly aware that subjection of Native lands in the lower 48 to taxation was a chief cause of the loss of millions of acres between 1880 and 1930. Some of the Natives also expressed the view that, even in the white- man's business world, the spectacle of raiders taking over control of corjjorations is common, and that, when the restrictions on aliena- tion of their stock expire, the Native corporations will be sitting ducks for corporate raiders. They point out that even successful and profit- able Native corporations will likely be vulnerable because their share- holders will not appreciate their rights and the dividends they receive as such with the same sophistication as others will appreciate the value of the assets the corporations represent. A host of problems have developed in connection with the carry- ing out of the interregional revenue sharing provisions of section 500 7(i) of the Settlement Act. Just to scratch the surface, some of them are : (1) What constitutes revenues from timber resources and sub- surface estates ? (2) Are sand and gravel surface or subsurface resources? (3) Does "revenues" mean net or gross revenues ? (4) Does "according to the number of Natives enrolled in each region" mean "according to the number of stockholders in each regional corporation'" or something else ? (5) What is the nature of the legal relationship Congi-ess in- tended should exist among the regional corporations relative to section 7 (i) resources? (6) Was it intended tliat tlie other regional corporations shouhl have an economic interest in the T(i) resources in place of the title holding corporation ? (7) How should nonmonetary consideration reserved by a title holding corporation in connection with a disposition of 7(i) re- sources be treated ? To this point, the carrying out of section 7(i) has proved a chaotic process. The Native corporations are currently involved in at least two complex lawsuits concerning its interpretation and implementation. The executive branch and the departments and agencies thereof have built an antinative bias into the implementation of the Settlement Act. They have generally approached the task of implementing the Act from the wrong direction. Rather than looking first to the Act to ascer- tain what Congress desired to accomplish by its adoption, the officers of the executive seemingly look first to the other statutes and interests they are charged with administering. As a consequence, essential pur- poses of the Settlement Act and the results envisioned by Congress are distorted by filtration through the membranes of other laws and other interests not always compatible with the Act and with the interests of the Alaska Natives. A good example of the institutionalization of an anti-Native bias is the so-called Alaslca Task Force set up within the Department of the Interior. Although created to advise the Secretary with respect to the implementation of the Settlement Act, this task force is composed of representatives of virtually all of tlie agencies within the Department, all of whom have an equal voice, and all but one or two of whom represent interests and constituencies both within and without the bureaucracy whose objectives are in large measure antithetical to those of the Natives. So long as the Settlement Act is implemented in this fashion, it is not going to be applied in line with its essential purposes and the Na- tives arc going to have to continue to repair to Congress and the courts to secure the benefits to which they are entitled thereunder. COXCLUSIOXS Regardless that, in the main, the Alaska Natives were not located on reservations, the status of tlieir traditional tribes and the nature of their relationship to the United States are essentially the same as those of other American Natives. They still desperately need the special services that the United States customarily makes available to Natives (Indians) based on their status as such. The Settlement Act was not 501 intended to affect and did not affect the sovereign powers residing in the preexisting Alaska Xative tribes. The Alaska Natives should be eligible, along with all the other American Xatives, to receive the benefits of all existing and future legislation and programs designed, generally, to promote the development and welfare of American Xatives. There is need to establish an order of preference where competing applications are submitted by more than one of the several kinds of Alaska Xative organizations that are qualified applicants for benefits under Federal laws and programs. Generally, preference should be given to larger organizations over smaller, particularly where a larger organization proposes to operate the program or provide the service concerned in an area that includes, but is more extensive than, that of the competing smaller organization or organizations. Where competing applications are submitted by organizations of the same magnitude, preference should usually be given to the one most tribal in nature. The authority given the Secretary by the Settlement Act, where nec- essary, to reserve easements across lands to be granted to the Xative corporations, and at periodic points along the courses of major water- ways, was intended to be exercised strictly for the purpose of pro- viding access to remaining public lands and discharging international treaty obligations. In undertaking to reserve easements of other types, for other purposes, the Secretary is grossly exceeding his authority. Since Congress itself mandated the conveyance of 40 million acres of land to the Xatives and Xative corporations, and by and large defined the areas from which the land is to come, the Secretary, prior to making the grants called for by the Act, should not be required to prepare environmental impact statements. Tlie Settlement Act contemplated that all lands to which the Xatives and Xative corporations are entitled would be conveyed not later than early in 1976. At the present time, more than a year after Congress provided the process should be complete, only a fraction of the land has been conveyed. This unconscionable delay is almost entirelv attrib- utable to maladministration by the Secretary of the Interior and is seriously eroding the value of the compensation Congress intended the Xatives to receive. If the past is prologue, there is no reason to expect more expeditious administration in the future unless Congress takes a hand and compels it. xVt the time the Settlement Act was adopted it was supposed that the trans-Alaska pipeline would l)e flowing in about 3 years and that the $500 million in royalties the Xatives were to receive likely would be paid out in 8 to 10 years. In 1073, Congress recognized that these suj^positions had been too optimistic and that the Xatives were not going to receive the $500 million nearly as soon as had been thought. Accordingly, it authorized the advance payment of royalties in the amount of $5 million every 6 months, commencing in fiscal year 1976, until oil should begin to flow in the pipeline. The Executive has con- sistently failed to request appropriations under this authorization and none have been made. The placement of lands in certain national systems pursuant to section 17(d) of the Settlement Act could have the effect of prohibit- ing the Xatives' continued use of the lands for subsistence purposes 502 or of inhibiting the use of their own lands in the vicinity for purposes deemed incompatible with the preservation of the environment of the lands placed in the national systems. The exposure of the lands the Natives are to receive under the Settle- ment Act to State and local taxation sets the stage for the lands eventually to be taken from them. In many cases, the Natives selected lands for purposes of subsistence and of preserving a way of life, which have small productive potential. T\Tien the stock in the Native corporations becomes alienable, there is potential for control of the corporations — even of successful ones — to pass into nonnative hands. With control of the corporations goes control of their lands and other assets. The interregional revenue sharing provisions of section 7(i) of the Settlement Act raise a number of thorny problems of interpretatioji and implementation. Some have suggested that Congress should con- sider creating an agency to administer 7(i) revenues. RECOMMENDATIONS The Oommission recommends tliat : 1. Congress enact legislation prescribing the order of preference in which applications for benefits under Federal laws and programs will be received from the several kinds of Alaska Native organizations qualified as applicants. 2. Congress enact legislation confirming that the Tlingit and Haida Indians constitute a single tribal entity of which the Central Council is the general and supreme governing body. 3. Congress enact legislation confirming that the authority of the Secretary of the Interior to reserve easements on lands to be conveyed to Native corporations under the Settlement Act is strictly limited to definitely defined easements across such lands and at periodic points along the courses of navigable waterways that are necessary to dis- charge international treaty obligations and to provide access to re- maining public lands. Specifically, Congress make clear that the Sec- retary is without authority to reserve any lineal easements along shorelines, any nonspecific, floating or blanket easements, or any ease- ments to provide others with any rights to enter upon any lands (including water beds) to be convej^ed to the Native corporations for any purpose other than to cross such lands by defined routes to reach remaining public lands. 4. Congress enact legislation confirming that the Secretary of the Interior is not required, prior to conveying lands to Natives and Native corporations under the Settlement Act, to prepare impact, statements pursuant to the National Environmental Policy Act. 5. Congress enact legislation requiring the Secretary to convey all lands and estate and interests in lands that the Natives and the Native corporations are entitled to receive under the Settlement Act no later than December 31, 1978. G. Congress increase its oversight relative to the carrying out of the Settlement Act in general, and relative to the conveying of lands to the Native corporations in particular. Congress require the Sec- retary to report to it not less frequently than once every 3 months 503 until it is satisfied that all lands to which the Native corporations are entitled under the Act have been conveyed. 7. Congress appropriate funds to provide the advance payments into the Alaska Native Fund that were authorized by section 407(a) of the Act of November 16, 1973, 87 Stat. 591, to ameliorate the adverse impact on the Alaska Natives of delay in construction of the Trans- Alaska Pipeline. 8. Congress take no action in implementing the provisions of section 17(d) of the Settlement Act, or otherwise, that would have the effect of diminishing or impairing the ability of Alaska Natives to make use of any lands or of the products thereof (including fish and animals), for subsistence purposes, or that would have the effect of restricting the uses that Native corporations might make of, or the activities they might conduct on, any land conveyed to them under the Settlement Act. 9. Congress enact legislation permanently exempting lands con- veyed to Native corporations under the Settlement Act from State and local taxation, so long as they are not developed or leased, and during periods such lands are not productive of income, whether or not they were previously developed or leased. 10. Not later than duiing the 1st session of the 101st Congress or 1989, Congress undertake a comprehensive examination of the condi- tion of the Alaska Natives and of the results of the Settlement Act, with a view, particularly, to determining whether the tax exemptions and the period of inalienability of stock currently provided by the Settlement Act be expanded or extended. 11. Congress conduct hearings to examine the problems that have arisen in interpreting and effectuating section 7(i) of the Settlement Act and to determine whether further legislation is desirable. B. Oklahoma INTRODUCTION The special circumstances surrounding the problems of the Indian tribes of Oklahoma are traceable to the confusion created by the myriad of laws applicable only to Oklahoma. The problems faced by the Indian people in Oklahoma are similar to those faced by Indian tribes and individuals generally throughout the United States differ- ing often only in degree. HISTORICAL OVERVIEW Oklahoma. The name itself is an Indian word meaning "people red." ^ The territory itself has been the domain of Spain, France, the United States, and many Indian nations.^ For 50 years, Oklahoma was the exclusive domain of a number of tribes, some coming from as far away as New England and the Pacific Northwest.^ Oklahoma was to be their home ; a place where they might grow and advance, free from the 1 Harlow, Vincent B., Harlow's Oklahoma History, 4th ed., Harlow Publishing Corp.. Oklahoma City. Okla. p. 4. 3 Department of the Interior, Bureau of Indian AflPalrs, Indians of Oklahoma, U.S. Gov- ernment Printing Office, Washington, D.C., 1973, 0-496-170, p. 3. » Ibid., p. 4. 504 pressures of white settlement ; a place where their tribal bodies might remain intact, a right the tribes had earned and paid for with their determination and the blood of many of their people ; a place which was "to be, and remain," theirs forever, under "the most solemn guar- antee of the United States." * Tliese promises have deteriorated and the Indian people of Okla- lioroa face problems which are simply too overwhelming to be dealt with successfully given the meager resources of these tribes. Okla- homa is a microcosm of Indian country. Water rights, tribal govern- ment impotence, jurisdiction, tribal membership, treaty rights, taxation, sovei-eignty, poor housing, poor health, poor education, racial discrimination; all are problems facing the Indian people of Oklahoma. Some might believe it would be easy for these people to abandon their Indian identity, for it has caused them, their forebearers, and will probably cause their children much anguish. Yet, they cling to their tribal identity and take great pride in their tribal cultures and languages which have incredibly survived a history of efforts at ex- termination and assimilation on the part of the United States. Seventy years ago, in 1906, Pleasant Porter, a Principal Chief of the Creek Nation, made an appeal which this country would do well to consider in the aftermath of its bicentennial celebration. Chief Porter said : The vitality of our race still persists. We have not lived for naught. We are the original discoverers of this continent, and the conquerors of it from the animal kingdom, and on it first taught the arts of peace and war, and first planted the institutions of virtue, truth, and liberty. The European Nations found us here and were made aware that it was possible for men to exist and subsist here. We have given our life forces — the best blood of our ancestors having intermingled with that of their best statesmen and leading citizens. We have made ourselves an indestructible element in their national history. We have shown that what they believed were arid and desert places were habitable and capable of sustaining millions of people. We have led the vanguard of civiliza- tion in our conflicts with them for tribal existance from ocean to ocean. The race that has rendered this service to the other nations of mankind cannot utterly perish." In order to understand the complexity of the issues in Oklahoma, a revicAv of the history of the Oklahoma tribes is necessary. Further, it is necessary to understand that there are at least four and probably five or six distinct "types" of tribes and their histories are as differ- ent as their languages and cultures. Ahonglnal Tribes Coronado led tlie first European expedition into tlie lands which now comprise Oklahoma.'^ He encountered at least two tribes in Okla- homa; the Wiehitas, a peaceful farming people, and the Querechos, vvho are believed to be the ancestors of the Plains Apaches.'^ It is esti- mated that there were six tribes claiming Oklahoma as their domain upon the arrival of the Europeans.^ * Shmeekohier. Lav.rence F., The Office of Indian Affairs, The Johns Honldns Press Baltimore, Md., 1927, p. 93. ^ Report of the Creek Nation to the American Indian Policy Review Commission, unpub- lished, at dedication. " Harlow, supra, p. 34. -■ Ibid. * Indians of Oklahojiia, supra, p. 3. 505 Amono; the tribes presently located in Oklahoma, the "VVichitas, Qiia]:)aws and Caddoes, and possibly the Kiowas, Fort Sill Apaches and Pawnees, were aboriginal to Oklahoma.'^ After the Lonisiana Purchase, the United States set about to make treaties with the aboriginal tribes so that they might establish title to the lands to which they hoped to remove the tribes east of the Missis- sippi. Unfortunately, the United States was confused as to which tribe held which lands. As a result, a treaty was made with the Quapaws for lands occupied by the Wichitas. After the mistake was discovered, the United States moved to set aside certain lands for the use of the Wichitas. Later, how'ever, tlie Wichitas were forced to cede much of the land, as the United States said it had "given" the land to the tribe in the first place. Because of this confused history, the Wichitas have yet to have their aboriginal land claims adjudicated, even though the Indian Claims Commission has officially recognized the validity of tlieir claims.^" On October 19, 1872, the Commissioner of Indian Affairs concluded an agreement ^^ with the Wichita and affiliated tribes setting aside a reservation for their joint use in what is now southwestern Oklahoma. In exchange, the ajffected tribes ceded to the United States all of their territorial claims to other lands in Texas, Louisiana, and in Indian territory.^^ In commenting on the purposes for conclusion of this agreement, the Commissioner declared : These Wichitas and * * * [affiliated tribes] have always been friendly and loyal to the Government ; have suffered severely on that account ; * * * and absolutely require a reservation which they can call their own. For these reasons, as well as to quiet their claim to unceded lands, I recommend the ratification of the agreement * * *." " Thereafter, pursuant to the agreement,^* a reservation of approxi- mately 743,000 acres was set aside in Indian territory for the Wichita and other tribes,^^ including the Delaware Tribe with whom the United States had treaties in 1866.^^ Removal of the Five Civilised Tribes Few Indian tribes presently located in Oklahoma are indigenous to the area. Although the Bureau of Indian Affairs, in its pamphlet en- titled, Indians of Oklahoma, euphemistically refers to the State as the "melting pot of Indian America,*' it nuist be stressed that most tribes were forced to resettle there to surfeit non-Indian greed for homelands occupied by such tribes elsewhere in the country. As the Supreme Court recently stated in Choctaw Nation v. Oklahoma, 397 U.S. 620, 625 (1970) : A clash between the obligation of the United States to protect Indian property rights on the one hand and the policy of forcing their relinquishment on the other B Harlow, supra., p. 38. 1" Testimony of Newton Lamar, Chairman, Wichita Tribe, at Hearings of the American Indian Policy Review Commission Task Forces 1, 2, 3, 4, and 9, Oklahoma City, Okla., May 10 and 11, 1976 (hereinafter referred to as Oklahoma City hearinsjs) p. 3a7. "See Annual Report of the Commissioner of Indian Affairs 101 (1872). Although this arsreement apparently was never ratified formally by Congress, the Wichita and affiliated tribes were clearly recognized in subsequent legislation to have acquired right in the 1872 reservation. See e.g.. Act of March 2, 1895, 28 Stat. 895 ; Act of June 14, 1924, 43 Stat. 366 (amended Apr. 21, 1932, 47 Stat. 87). ^2 Annual Report of the Commissioner of Indian Affairs 102 (1872). ^■i Ibid. ^^ See note 11, supra. ^' See notes 34-36, infra, and accompanying text. 18 Ibid. 92-185—77 33 506 was inevitable. With the passage of the Indian Removal Act of 1830, 4 Stat. 411i it became apparent that policy, not obli.i^ation, would prevail. In .spite of the promises to protect the Indians' land and sovereignty, it was clear that the United States was unable or unwilling to prevent the States and their citizens from violating Indian rights. Pursuant to the policy of the 1830 Removal Act, the United States between 1830 and 1«35 concluded treaties with each of the so-called Five Civilized Tribes providing for their innnediate or eventual re- moval from various Southeastern States to land subsequently des- ignated as the Indian Territory (now Oklahoma). When the tribes reluctantly agreed to leave their homelands, they had taken pains to insure that their sovereignty in their new domains be unquestioned. In the Treaty of Dancing Rabbit Creek, signed Sep- tember 27, 1830,^^ the Choctaw Nation agreed reluctantly ^* to abandon, their remaining lands in Mississippi and to remove to Indian Terri- tory. There the United States pledged to convey land to the Choctaws "to insure to them while they shall exist as a nation and live on it." ^^ The Federal Government further promised in that treaty to guarantee to the Choctaws : * * * jurisdiction and government of all persons and property that may h& within their limits west, so that no Territory or State shall ever have the right to pass laws for the government of the Choctaw Nation * * * and that no part of the land granted to them shall ever be embraced in any Territory or State.™- Similar provisions may be found in the removal treaties of each of the tribes. As a result of the foregoing removal treaties, the United States granted to the Five Civilized Tribes the folloAving amounts of land in Indian Territory: the Choctaws received wdiat is today approxi- mately the southern third of the State of Oklahoma, an area compris- ing the excess of 12,850,000 acres ; ^^ by subsequent treaties,^^ the Chickasaw^s were granted an undivided one-fourth interest in certain of the Choctaw lands, the Cherokee received a tract in excess of 5 mil- lion acres situated in what is now northern Oklahoma; ^^ and the Creeks were granted over 6 million acres in the central portion of the present State and the Seminoles were accorded rights in the southern portion of the Creek lands.^* All of these grants were in fee simple title, but the newly acquired tribal lands could not be alienated with- out the consent of the United States.-^ 17 7 Stat. 3.S3. 1° The United States Supreme Court has noted that if the Choctaws had not signed the Treaty of Dancing Rabbit Creek they would have been "faced with the prospect of losing both their lands and way of life." CJwctaio Xation v. Oklahoma, supra, 397 U.S. at 62.'5. The efTorts to remove the Choctaws west of the Mississippi actually commenced as early as 1820 when settlers came pouring into their aboriginal domain. See Cohen. Handbook of Federal Indian Law 56-58 (Univ. of N. Mex. edition, 1971) (hereinafter cited as "Cohen Handbook"). 197 Stat. .333 (Art. II). 2" Id. at 333-3.34 (Art. IV). 21 Message on Surveys in the Indian Territory, Senate Ex. Doc. No. 32, 45th Cong. 2d sess. (Feb. 20. 1S7S) (hereinafter cited as 187S Senate Ex. Doe.) ; see Choctaw Nation v. Oklahoma, supra, 397 U.S. at 626. 22 Treaty of January 17, 1837, 11 Stat. 573; treaty of June 22, 18.55, 11 Stat. 611. -' Senile Kx. Doc. su)ira. nore 21. 2» Report of the Creek Nation to the American Indian Policy Review Commission at 27 (transmitted Aug. 11, 1976) (hereinafter cited as "Creei Report'"). 2"^ The fee title received by the Five Tribes in the Indian Territory was snhiect to the prohibitions of the Non-Intercourse Acts, now coditied at 25 U.S.C. §177 (1970), barring transfers of tribal land without congressional approval. Beyond this, tribal title was "ter- minnhie if and when these Indian nations ceased to exist or abandoned the territory- conditions not yet occurring." Choctaw Nation v. Oklahoma, supra, 397 U.S. 638-"639i (Douglas, J., concurring). .• uji'^. ,11 hJ m .■•;-: ■' .iz9! ;^uituju]iiKiDOjj LiMi .iiiinl , Ibid. ^ statistical chart on Western Oklahoma Tribes. Pursuant to authority delegated by the ISSl statute, the Secretary of the Interior set aside designated lands in Indian Terri- tory "for the use and occupation of the confederated Otoe and Missouria Tribes" by order dated June 25, 1881. I Kappler 844. e^I Kappler 84.3-844 (Iowa) ; Id. at 844 (Kickapoo). •" Statistical chart on Western Oklahoma Tribes, pp. 532-33. 8* Ibid. «■'' Treaty of Oct. 21, 1867, 15 Stat. 581, with the Kiowa and Comanche Tribes. On the same date a supplementary treaty was conchified with these tribes and the Apache Tribe whereby the three tribes were confederated, with the Apaches agreeing "to accept as their permanent home the reservation" in Indian Territory established by the main treaty. 15 Stat. 589. »« Treaty of Oct. 28, 1867, 15 Stat. 593. 510 was agreed ^'' that the United States would set aside reservations in Indian Territory "for the absohite and undisturbed use and occupa- tion" ^^ of the tribes. In exchange, the tribes abandoned all territorial claims to enormous acreage outside of the new reserves ;^^ and within these "permanent home[s]" '■" to be established for them the Federal Government "solemnly" pledged that : * * * no persons, except those herein authorized so to do and except such oflScers, agents, and employees of the Government as may be authorized to enter upon Indian reservations * * * shall ever be permitted to pass over, settle upon, or reside * * *.'^ Both treaties provided, moreover, that three-fourths of all adult male members of the respective tribes would have to consent by sub- sequent treaty to any transfer of lands in the new reservations.'^ Clothed with this panoply of treaty guarantees, the Kiowa-Comanche- Apache Tribes thereafter settled upon a reservation comprising ap- proximately 2,969,000 acres "^ in what is noAv western Oklahoma and immediately north thereof the Cheyenne-Arapaho Tribes occupied a reservation consisting of almost 4.3 million acres.'^* Indian Territory Thus, by 1882, a total of 25 Indian reservations had been established in the Indian Territory.'^ As noted above, these territorial enclaves had been erected in exchange for enormous land cessions by the tribes. The United States had pledged explicitly to several tribes that their territory would never be embraced witliin the limits, or subject to the laws, of any State or Territory, and that within their permanent reservation homelands they could live and govern as they chose free of the pernicious effects of non-Indians. 9^ The tribal signatories at Medicine Lorlffe Creek were nomadic hunters who had no alternative but to" agree to creation of reservations in Indian Territory where they might live free of non-Indian intrusions. The press of settlers into their territory had led to a treaty in 1S61 with the Cheyenne-Arapaho Tribes wher^ihy they ceded a large tract of land previously reserved to them in Colorado. Kansas, and Nebraska in exchange for a consid- erably reduced reservation in Colorado. Treaty of Feb. IS, ISRl. 12 Stat. 1163. Continued white encroachment upon the 1861 treaty reserve precipitated another treaty in 1S65, 14 Stat. 70.3, whereby the Cheyenne-Arapaho were to re-move to a new reservation partly in Kansas and partly in Indian Territory. In the same year the Kiowa and Comanche surrendered by treaty their claims to approxi- mately 100 million acres In the West in exchange for which the United States proTnised territorial rights totaling more than 89 million acres. 14 Stat. 717 ; see r/./S. v. Klova, Comanche, and Apache Tribes, 479 F. 2d 1369. 1372 (Ct. CI. 1973). But hostilities with white intruders continued, see Cohn, supra, note 13. px 65. and the nfTected tribes were forced, in 1SC7, to cede more land in return for the much smaller reservations set aside for them in Indian Territory. 88 II Kappler 977-978 (art. 2) ; II Kappler 985 (art. 2). 8^11 Kappler 980 (art. 11) ; II Kappler 088 (art. 11>. Pursuant to these respective pro- visions, the tribes reserved expressly the right to hunt outside their new reservations on any lands south of the Arkansas River. See also note 51, supra. ™ II Kappler 981 (art. 16) : II Kapnler 989 (art. 15). ""■ IT Kappler 978 (art. 2) : II Kappler 98." (art. 2). " II Kappler 981 (art. 12) : II Kappler 988 (art. 12). '^ ^statistical chart on Western Oklahoma Tribes, pp. 5.32-33. ''* Ibid. The reservation set aside for the Cheyenne-Arapaho Tribes by article 2 of the 1867 treaty comprised approximately 5.1 million acres. For a variet.v of reasons the two confederated tribes never occupied that reserve, and a new one was set aside by ExecutivS order of Aug. 10. 1869. I Kappler 839. ■^^ A listing of the 13 reservations set aside in what is now western Oklahoma (after 1890 the Oklahoma Territory) appears at pp. 532-33. In what is now roughly eastern Okla- homa (after 1890 the reduced Indian Territory). Congress established, in addition to the respective territorial domains of the Five Civilized Tribes, the following seven reservations : Modoc. Ottawa, Peoria ^occupied by Kaskasia. Miami. Peoria, Piankashaw. and Wea Tribes), Quapaw. Seneca. Shnwnee, and Wyandotte. See Annual Report of the Commissioner of Indian Affairs 456-457 (1906). 511 Even in tlie absence of express treaty commitments to this effect, the mere establishment of a reservation operated implicitly to confirm the inherent governing powers of a tribe within the boundaries thereof J^ Thus, as noted by the Assistant Secretary of the Interior in 1942, within the Indian Territory prior to 1890, "the [Federal] Government recognized the exclusive jurisdiction of the Indian tribes over their own members and even over nonmembers within their territories." ^^ When Congress passed the so-called "Major Crimes Act" in 1885 pro- viding for Federal or territorial court jurisdiction over certain offenses committed by Indians,'^^ that Act "probably did not apply to the old [pre-1890] liidian Territory since there were no Territorial organiza- tion, laws and courts to function under the statute." ^^ But despite the express and implied Federal guarantees to preserve tribal territorial integrity, "[S]oon it was apparent that the seclusion and isolation which the Indians sought was to be disturbed." ^° Almost 200,000 "[L]and-hungry whites overflowed into the Indian Terri- tory" ^^ in the late 1880's, vastly outnumbering the Indians there.*^ Because of the absence of a territorial government and the ability of tribes to cope with the lawlessness of the numerically superior settlers,^^ considerable disorder ensued and Indian Territory "became a refuge for criminals from neighboring states." ^^ In response to these problems posed by the growing influx of non- Indians, Congress on March 1, 1889, enacted legislation ^^ creating a United States court at Muscogee in Indian Territory. This court was granted limited criminal and civil jurisdiction, but crimes and con- troversies between Indians were specifically excluded.*^ The same Act also authorized the President to open to settlement land in the Terri- tory tliat had been ceded to the United States by the Creek and Seminole Nations.^^ "* See Cohen Handbook, supra, ''Letter of Oscar L. Chapman. Assistant Secretary of the Interior, to the Attorney Gen- eral of the Uniterl States, dated Aug. 17, 1942, at p. 1 (hereinafter cited as "1942 Secre- tarial letter"). This document is attached as exhibit 3 in pt. VIII, app. II of the final report of Task Force No. 9. "Act of Mar. 3, 1885, 23 Stat. 385, now codified at 18 U.S.C. § 1153 (1970). The original 7 major crimes have been expanded to include a current total of 14 felony offenses. Hee ch. 3 infra. '» 1942 Secretarial letter. >*<' Cohen Ilandbooij, supra, note 18, at 427. a Ibid. *- By late 1889, there were approximately 277,200 people in Indian Territory, and more than 190.000 were non-Indians. In the western portion thereof, soon to become Oklahoma Territory (now roughly western Oklahoma), It was estimated that there were at least 90.000 whites and about 12,000 Indians. H. Rept. No. 66. Organization of the Territory of Oklahoma and Establishment of Courts in the Indian Territory, 51st Cong., 1st sess. 4, 7-8 (Fed. 15, 1890 (hereinafter cited as "1890 H. Rept.")). ^" The tribes in Indian Territory were "especially interested in the suppression of law- lessnpss in their midst (due to) contact with the criminal classes of all other nation- alities, who commit crimes and depredations and in many cases escape without punishment." 1890 IL Rept., supra, note 92. at 8. s* Cohen Handbook, supra, note 18, at 427. See also 1890 H. Rept, supra, note 92, at ^'' 25 Stat. 783. ** Sec. 5 of the 1889 Act conferred iurisdiction upon the Muscogee Court over certain minor offenses, defined in 5§ 20-26, but § 27 stipulated that such jurisdiction would not extend to "offenses committed by one Indian upon the person or property of another In- dian." Civil jurisdiction granted the new Federal court under this Act was made inapplica- ble via § 6 thereof to "controversies between persons of Indian blood onlv." The Act of Fob. 15, 1888. 25 Stat. 33, made provision for punishing robberv, burglarv, and larceny committed within the Indian Territory and vested jurisdiction thereover in United State."? courts located in adjoining States. Congress speciflcallv declared, however, that "this Act shall not be so constrned as to apply to any offenses committed by one Indian against the person or property of another Indian." «' See 1890 H. Kept, supra, note 92, at 3-4. 512 On the following day, INIarch 2, 1889, another Federal statute ^^ was passed to meet the swelling non-Indian land rush. This law created the Cherokee or Jerome Commission to negotiate with the tribes in Indian Territory for the allotment of their reservations among tribal mem- bers and the sale of surplus lands therein to non-Indians. Thereafter, by proclamation ^^ of March 23, 1889, the President authorized the Creek-Seminole ceded lands to be opened to settlers on April 22, 1889. This was the first of many land openings in what is now Oklahoma, and the area thus made available — 1,887,796 acres — became known as "Oklahoma proper." ^° As a result of the opening of Oklahoma proper and in anticipation of vast tracts of tribal land that the Jerome Commission would pur- chase, the migration of settlers to Indian Territory continued. The massive infusion of non-Indians, coupled with the rather limited juris- diction over them that had been conferred upon the Federal courts at Muscogee and in adjoining States,^^ produced a push for erection of a territorial government.^- Thus, on December 9, 1889, legislation was introduced for this purpose and on May 2, 1890, Congress passed the "Organic Act" ^^ establishing the Oklahoma Territory. Events from 1890 to 1906 The events commencing with the passage of the Oklahoma Organic Act in 1890 and concluding with admission of the State of Oklahoma into the Union in 1907 are extremely crucial to an understanding of the current legal status and jurisdictional powers of the Oklahoma tribes.^* These are the things we have to look at * * *. We gave * * *. We gave our land to these people * * *. We don't have to say we never gave anything. All we want is justice and that is all we want * * *. We want to be treated fair and square because I think we Indians have something to offer to the United States. — Dana Knight^ While the problems are great all across Indian country, the problems of Oklahoma tribes are intensified by their cloudy legal status. De facto policy of the United States and the State of Oklahoma has crip- pled the socioeconomic development of the Oklahoma tribes. Rather than dealing with the issues head-on, the Federal Government through the Bureau of Indian Affairs, has chosen to stay in the background and avoid confrontations, to the detriment of the tribes. Water rights, jurisdiction, taxation; all are major issues in Okla- homa which the Federal Government has chosen to ignore while the State of Oklahoma continues to assert powers the tribes believe to be their own. The Indians of Oklahoma are paying the price for this negligence. While they could be among the most prosperous tribes in the country, 88 25 Stat. 980. 89 Sep 1800 H. Rept., supra, note 92, at 4 ; Messages and Papers of the Presidents, vol. IX. p. 15. 90 1890 H. Rent., supra, note 92. at .3-4. 91 See note 86, supra. "•^ The President in opening "Oklahoma proper" had expressed concern that a territorial government needed to be established, see note 99, supra, and Congress had received numer- ous petitions for such a government by settlers who had entered the former Creek-Seminole lands opened bv the President's proclamation. See 20 Cong. Rec. 58, 173, 1544, 1765, 1880, 1918. 1965. 1999, 2236, 2371, 2426 (1889). 93 26 Stat. 81. 9'> See, irenernlly. Cohen Handbook, supra. 95 Oklahoma City hearings, supra, p. 217. 513 they are among the poorest, while vast resources which they believe to be tlieirs are taken and controlled by non-Indians for non-Indian use. In this section, we will outline the opinions of tribal leaders, and report the findings of the Commission with regard to the issues raised. TRIBAL SOVEREIGNTY AND TERRITORIAL RIGHTS Thp Cherokee Nation exists as a sovereign, subject only to the sovereignty of the United States * * * and the provisions in the Constitution for dealing with Indian tribes. — Ross Swimmer °^ Prior to 1890, it is clear that the Oklahoma tribes maintained full sovereignty with regard to tribal territory and tribal members. After 1890, the situation becomes less clear. As a practical matter, all Okla- homa tribes have suffered because the Federal Government did not keep its pledge to protect the "permanent" reservation homelands estab- lished for them. As a matter of law, however, some tribes have fared more fortunately than others. The legal distinctions beginning in 1890 among Oklahoma tril3es — primarily those in the western as opposed to the eastern portion of the present State — have for too long gone unrecognized. The State of Oklahoma has consistently failed to recog- nize these distinctions as shown by State documents claiming jurisdic- tion over all Indians in the State but citing only judicial decisions and legislation affecting eastern Oklahoma. 1. Eastern Ohlah&ma The sovereignty of the tribes in eastern Oklahoma is more difficult to define than that of the tribes of western Oklahoma. That the tribes of eastern Oklahoma maintain their political relationship with the United States, and that the tribal existence and tribal governments continue, is undeniable.^^ As with other tribes, the easiest way to define tribal powers is to define what powers the tribes do not have. In the 1890 Organic Act, it is clear that the tribes retained their sovereign character. The jurisdiction of the tribes was also unques- tioned, where conflicts arose between Indians. The Act of ]March 1, 1889, which created a United States court in the Indian Territory placed "exclusive original jurisdiction over all offenses against the laws of the United States within the Indian Territory, not punisliable by death or by imprisonment at hard labor" ^* in the realm of the said court. However, section 27 of the same Act declares that this conferral of jurisdiction '"shall not be construed as to apply to offenses committed by one Indian upon the ])erson or property of another Indian." ^^ The Organic Act limits the jurisdiction of the courts created in the Act by stating: That the court established by said Act (of March 1, 1889) shall, in addition to the jurisdiction conferred thereon by said Act. have and exercise within the limits of the Indian Territory jurisdiction in all civil cases in the Indian Territory, except cases over which the tribal courts have exclusive jurisdic- tion.'"" »« Hearings before American Indian Policy Review Commission Task Forces 1, 2, 3, 4. and 9. Muskogee, Okla., May 13 and 14 (liearings hereinafter referred to as Muskogee hear- ings), p. 60. o'lhid., see also, Harjo v. Kleppe, C.A. No. 74-189, U.S.D. D.C., Opinion and Order filed 9/2/197fi. 98 25 Stat. 1, 783. e» IMd. lo" 26 Stat. SI. 514 One further qualifier of the jurisdiction of the court was added in section which reads : That jurisdiction is hereby conferred upon the United States Court in the Indian Territory over all controversies arising between members or citizens of one tribe or nation of Indians and tlie members or citizens of other tribes or nations in the Indian Territory, and any citizen or members of one tribe or nation who may commit any offense or crime against the person or property of a citizen or member of another tribe or nation shall be subject to the same punishment in the Indian Territory as he would be if both parties were citizens of the United States. And any member or citizen of any Indian tribe or nation in the Indian Territory shall have the right to invoke the aid of said court therein for the protection of his person or property as against any person not a member of the same tribe or as though he were a citizen of the United States/"^ The essential thrust of the Organic Act was to establish a more comprehensive system of laws and courts for the non-Indians who had poured into Indian Territory in the 1880's."^ The history of the Act offers firm evidence that the tribes in tlie Territory, including the Five Civilized Tribes, favored such action because of the menace posed by non-Indians and because tribal self-governing powers would remain largely intact under the Organic Act. Thus, the House Committee con- sidering enactment of the legislation declared : Your committee are of the opinion tiiat every right of any Indian tribe in the Indian Territory as heretofore delined (prior to 1890) has been carefully guarded and protected in the accompanying bill. The bill was discussed at great lengtli by the representatives of the Five Civilized tribes and by others, and such concessions and amendments were made as to practically reconcile all objections so far as the Indian tribes are concerned. The whole Indian Territory as heretofore defined (pre-1890) has, owing to the failure of Congress to provide courts adequate to the wants of the people, became the refuge of criminals and desperadoes from all parts of the country. Nothing but the establishment of a Territorial government over that region and courts in the Five Civilized Tribes will arrest the carnival of crime which prevails there, or protect the Indians therein from the rapidly increasing invasion of the crim- inal cla sses. * * * all the people in those Territories [new Oklahoma Territory and dimin- ished Indian Territory] are entitled to that protection w^hich just laws and local courts alone can give. The Indians are especially interested in the sup- pres.sion of lawlessness in their midst. While they are amenable to their tribal laws and courts, yet there can be no security to their persons or property so long as they are in contact with the criminal classes of all other nationalities, who commit crimes and depredations and in many cases escape without punishment.^"* The situation changed dramatically with the Act of June 7, 1897, when Congress declared : That on and after January first, eighteen hundred and ninety-eight, the United States Courts in said Territory shall have original and exclusive jurisdiction and authority to try and determine all civil causes in law and equity thereafter instituted and all criminal causes for the punishment of any offense committed after January first, eighteen hundred and ninety-eight, by any i>erson in said Territory * * * and the laws of the United States and the State of Arkansas in force in the Territory shall apply to all persons therein, irrespective of race, and courts exercising jurisdiction thereof as now conferred upon them in the trial of like causes * * *.'°* Ml Ibid. i"2 H. Rept. No. 66, Orgranizatlon of the Territory of Oklahoma and Establishment of Courts in the Indian Territory, 51st Cong., 1st sess., p. 3-4. M» Ibid. 10* 30 Stat., 62. 515 The Act of June 28, 1898, furthered the erosion of tribal rights. The Act reads : Sec. 26. That on and after the passage of this Act the laws of the various tribes or nations of JncU.ins shall not he eiil'urced at law or in eiiuity by the courts of the United States iu the India u Territory * * *. Sec. 2s. That on the first day of July, eighteen hundred and ninety-eight, all tribal courts in Indian Territory shall be abolished * * '■^.^"^ The intent of Congress is made very clear in section 29 of the Act : It is further agreed, in view of the modification of legislative aulhority and judicial jurisdiction herein provided, and the necessity of the continuance of tlie tribal governments so modihed, in order to carry out the requirements of this agreement, that the same shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight. This stipulation is made iu the belief that the tribal government so modified will prove so satisfac- tory that there will be no need or desire for further ch.mge till the lands now occupied by the Five Civilized Tril)es shall, in the opinion of Congress, be pre-^ pared for admission as a State to the Union * * *."'° Further enactments by Congress strengthened the notion that In- dian Territory was soon to no lonofer be Indian Country and under the protectorship of the United States. The Act of March 3, 1901, made, ''every Indian in Indian Territory" ^"' a citizen of the United States, and ihe last proviso of the Act of May 8, 1906, provided that Indians in the Indian Territory were excluded from the provision in the Act stating that all allottees would be under the exclvisive juris- diction of the United States until the end of the trust period.^"^ Clearly, then, as the State courts assumed the powers of the terri- torial and Federal courts which preceded them, the Indians of eastern Oklahoma [former Indian Territory] came under the jurisdiction of State law, where they remain to this day. The relationship of the United States with the Five Civilized Tribes can only be described as a complete breach of faith. For centuries, the Europeans urged the Indians to become ''civilized." The Five Civi- lized Tribes Avere s^^mbols of the type of advancement of which the Indian nations were capable. In spite of the devastation of removal, the tribes resumed their cultural, social, political, and economic growth in their new home, only to see their efforts rewarded with the destruc- tion of their tribal entities by a government which had pledged itself to their protection. £. Western OMahoma Surprisingly, the sovereignty of the tribes in western Oklahoma has survived the years remarkably intact. As with the tribes of eastern Oklahoma, the sovereignty of the tribes was unquestioned prior to 1890. In the 1890 Organic Act, Congress reaffirmed these rights when it said of the Act and its effect on Okla- homa Territoriy (now roughly western Oklahoma) : Provided that nothing in this Act shall be construed to impair any right now pertaining to any Indians or Indian tribes in said territory under the laws, agree- ments, and treaties of the United States, or impair the rights of person or property pertaining to said Indians, or to effect the authority of the government of the United States to make any regulation or to make any law respecting said 105 30 Stat, 495. 1" Ibid. !'>• .31 Stat. 1447. i»« 3'4 Stat., 183. 516 Indians, their lands, property or other rights which it would have been com- I)etent to make or enact if this Act had not been passed. Later in the Organic Act, jurisdiction is conferred on territorial courts "over all controversies arising between members or citizens of one tribe or nation of Indians and the members or citizens of other tribes or nations in the Territory of Oklahoma." The Act goes on to say that the new territory had no jurisdiction over matters between Indians of the same tribe. Further, the Act does not negate tlie power of the tribes to police the tribal domain with regard to non-Indians on Indian land. Where the Act of June 7, 1897 [30 Stat. 83], placed the Indians in Indian Territory [eastern Oklahoma] under the jurisdiction of ter- ritorial courts, no similar changes were made in the Oklahoma Ter- ritory. With the passage of the Statehood Act of 1906, the jurisdiction of the territorial courts was transferred to the State courts. However, included in the Act was a provision which stated : Provided, that nothing contained in the said constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said Territories [so long as such rights shall remain unextinguishable] or to limit or affect the authority of the Government of the United States to make any law or regulation respecting ; such Indians, their lands, property or other riglits by treaties, agreement, law or otherwise, which it would have been comi>etent to make if this Act had never been passed.^"" The State did include a disclaimer of authority over Indian lands in its constitution, and the section has never been amended to authorize the assumption of jurisdiction over Indian lands."" Further, aside from this discussion of jurisdiction, the rights of the tribes to retain their full, sovereign powers have never been extinguished. It is the view of the Commission that the sovereign powers of the tribes of western Oklahoma with regard to Indian land within the original -reservation boundaries remain intact. The encroachment on the part of the State of Oklahoma on tribal rights has been a result of de facto policy on the part of the United States, policy which should never have come about and must be discontinued. It is most interesting that these tribes, who understood less of the workings of American law than did the Five Civilized Tribes, have fared better than the eastern Oklahoma tribes in terms of the reten- tion of sovereign powers. Perhaps it is that their seeming disinclina- tion to exercise these powers is the reason they were never extinguished. JUEISDICTION On the issues of jurisdiction * * * we feel that this subject is very imi)ortant due to the fact that the state, city, and county governments are zoning, annex- ing, and encroaching on the property and powers of the government of the Absentee Shawnee Tribe. The failure of other units of government to recognize the power and authority of the Absentee Shawnee Tribe, which we of the Tribe have never relinquished, only cause dissatisfaction and problems and complica- tions with all concerned. We want to work with other governments of the state in coordination with both government objectives. There will be no coordination of effort if the power of one government is unrecognized. Therefore, we ask the i"9 .S4 Stat. 267. "0 See art. I, sec, 3 of Oklalioma Constitution. 517 Federal Government to act on legislation that requires the recognition of the authority and power of the Absentee Shawnee Tribe as a government of its membership. — Danny Little Axe ^ We have property surrounding * * * Riverside Indian School which is located in Anadarko. Oklahoma. Recently, we had a riot out there, and the local county- city police officers came out to the school. As soon as they saw what they were faced with and as soon as they got their first car [turned over], they decided they had no jurisdiction and left rather hurriedly. And the school was left •without any police protection whatsoever. — Xewt Lamar ^ The issue of jurisdiction as an element of tribal sovereiofnty has been developed in the previous section. The status of the tribes up to and immediately after statehood has been shown. However, the legal matters of jurisdiction have remained fairly static since 1907. while the practical applications, or lack thereof, will dominate discussion of the issue in this section. The only siofnilicant legislation recrarding the status of the Oldahoma tribes since 1907 is the Oklahoma Indian "Welfare Act passed in 1936. The Act extended provisions of the Indian Eeorganization Act (T^Tieeler-Howard Act) of 1934 which had previously excluded Okla- homa tribes."^ Mention should he made of Public Law 83-280, mainly to emphasize that the tribes of Oklahoma do not have this burden to l3ear. The State of Oklahoma claimed, at the time that P.L. 83-280 was l)eing considered, that the Act was not necessaiy for Oklahoma as the State already held jurisdiction over Indians in the State. ^^^ While this may be true for eastern Oklahoma, the State jurisdiction over Indians on trust land in western Oklahoma is legally questionable. However, as a matter of practice, the tribes of western Oklahoma exer- cise few. if any, of their jurisdictional powers. There are several rea- sons for this. At or shortly after allotment, the tribal police forces fell into in- creasing disuse and more or less faded from existence sometimes in the early 1940*s. We have found no legislation or administrative authority of any kind to make the disappearance of tribal police an occurrence predicated by law. The State of Oklahoma conducted all law enforcement activities on non-Indian land from statehood on. but it is unclear as to when the State formalized a policy claiming jurisdiction over Indian lands. At least as late as 1950. the jurisdictional divisions between Federal and State authorities was in doubt. "^ Like many other State intrusions on Indian rights, it appears to have been a process by which the State claimed some degree of authority and the United States silently acquiesced. With the passage of the Oklahoma Indian Welfare Act in 1936, the tribes gained an opportunity to rebuild their governments. How- ever, the promise of OIWA, just as the promise of IRA elsewhere in Indian Country, has failed to be realized. Testimony and documents support a conclusion that the Indian people of Oklahoma have suffered unequal treatment at the hands 1^ Written testimony of Danny Littlease, Chairman, Absentee-Shawnee Tribe, submitted at Oklahoma City hearings. ^^ Oklahoma Citv heajings, p. 366. ^49 Stat. 1967. ^ See letter dated Xov. IS, 1953, from Governor of Oklahoma to Assistant Secretary of the Interior, Orme Lewis. ^ Tooisgah v. U.S., 1S6 F. 2d 93 (10th cir. 1950). 518 of the State law enforcement agencies. Bob Gann of the Oklahoma Indian Affairs Commission recently concluded a study of arrest and incarceration rates in Oklahoma which indicates that the percentaofe of Indian arrests as compared to arrests of non-Indians is many times the percentage of Indian population compared to total population in given counties.^^^ A specific example of the disruption indifferent law enforcement can cause an Indian community is the White Eaale area near Ponca City, Okla. This is a community of homes built with moneys furnished by the Department of Housing and Urban Development for the use of Ponca Indians. Testimony indicated that local non-Indians regidarly invade the comnumity while cli'inking and shout, honk car horns, and generally "raise hell." Local law enforcement author- ities refuse to respond to calls from the Indian people of the community.^^^ The Riverside Indian School, a BIA boarding school in Ana- darko, Okla., recently was the site of a disturbance among the students. Local law enforcemeiit authorities were summoned. Tlie officers on the scene, after the students tipped over a police car. apparently decided they had no iurisdiction and left the scene, leaving the nevv^ly con- structed Wichita-Caddo-Delaware office building with no protection from the rioting students. ^^^ The situation in parts of the State is even worse. In onsite discus- sions held in Oklahoma, Commission staff members were told that when tribal per capita or lease payments are distributed, the arrest rate rises dramatically. One Indian, when stopped by police, simply endorsed his per capita check and gave it to the police, knowing that, regardless of whether or not he was actually guilty of any crime (wliich lie was not) , he would lose the money. The attitudes of State officials may be seen in a memorandum of law prepared for the Oklahoma Department of Public Safety, and dated May 22, 1975. Under a section entitled "Facts," the memo reads, in part : The purpose of this memorandum is to definitively answer that question (of State .Iurisdiction on Indian land) in order to set a basic Departmental policy. The problem is one growing in importance due to increasing Indian activism through such organizations as the American Indian Movement (A.T.M. ). Initially, Oklahoma Highway Patrol District Headquarters Supervisors were asked to submit a list detailing the Indian-owned property in each county under their supervision upon which trouble with organizations like A.I.M. could most likely occur * * *."* It is hard to decide which is moi-e important to Oklahoma: proper police protection for Indian people or the suppression of A.I.M. The activities of the American Indian Movement in Oklahoma have, to this date, been inconsequential in terms of problems created for law enforcement agencies. The making of a list of areas where "trouble * * * could most likely occur" creates a situation where law enforce- ment officials tend to presume citizens guilty before they are even. accused of a crime, a situation which often leads to excesses. 11" Oklahoma City hearings, p. 249. "TIbid., p. 213. "« Ibid., p. 336. ii» Memorandum of Law prepared by Jerry L. McCombs, p. 2. 519 The treatment of Indians during and after arrest by State and local officials further shows the need for alternative laAv enforcement agencies. Complaints of police brutality are common from Indians in Oklahoma.^-" A paper b}' Kathryn Cornell Harris, in 1971, entitled "Indian Police Eelations in Rural Oklahoma" (the project was funded by Equitable Life Insurance Co. and a grant from the Law Enforce- ment Assistance Administration) was prepared for Dr. Gary INIarx, professor of sociology at Harvard University. The paper revealed that one of every two Indian families interviewed had a relative who died while in police custody in Olclahoma. Further, this study con- centrated on the area around Shawnee, Okla., a town which does not have a bad reputation for relations with Indians. KESERVATION STATUS Historically, legislation that affects Indians is reservation oriented; that is, directed toward Indian people living' on Federally-recognized reservations. The Five Civilized Tri'ues do not come williin the scope of many programs and services available to Indians because we do not live on reservations. Our needs, however, are just as great.'-' — Overton James In one place it says j-e-servation. Great. They are helped. Add a little dash and non-reservation and you are dead. It is words that we are fighting against now.'^" — Levi t5tevens * * * then they took away our reservation status * * * let me say this now; the Poncas did not concur * * *.'"'— Dana Knight The issue of reservation status is the matter foremost in the minds of the tribal leaders in Oklahoma. It is unclear how many of the tribes came to be considered nonreservations. On the other hand, it is very clear how other tribes came to lose their status. Meanwhile, how the Osage maintained their status as a reservation tribe further confuses the issue. In this section, we will separate the discussion of eastern Oklahoma (old Indian Territory) and western Oklahoma (old Oklahoma Terri- tory). The final subsection will be devoted to the detrimental effects this change of status has had on the Oklahoma tribes. 1. Eastern OMahoma There has never been legislation specifically abolishing the bound- aries of the reservations in Indian Territory. When the United States, in the period from 1889 to 1907, stripped the tribes of Indian Territory of most of their powers, and dismantled the governments of the Five Civilized Tribes the intent of the legislation was clear; Congress sought to end the tribal existence of the Indians in Indian Territory. However, there are still many allotments and a certain amount of tribal land under trust status and subject to the control of the Bureau of Indian Affairs. Case law supporting the contention that the tribes of eastern Oklahoma are still reservations will be discussed in the sec- tion on western Oklahoma. The Commission feels that reservation status should be returned to the Five Civilized Tribes and the rest of '^^ Oklahoma City hearings, generally. 121 Muslvogee hearing.s. May 14, 1976, p. 4. 123 Oklahoma City hearings, p. 109. i^Ibid., p. 203. 520 eastern Oklahoma. Such status does not affect the legal status of the tribe, but rather serves to make the tribes eligible for certain Federal domestic assistance programs from which their present status excludes them. 2. Western Oklahoma The situation in western Oklahoma is more clear on the issue of res- ervation status, and reflects a failure on the part of the United States in its role as trustee of the tribes. Oklahoma Territory prior to allotment was, of course, Indian Coun- try. Controversy arises as to the effect allotment had on its character as Indian Country. (Osage County and the Osage Reservation were included in Oklahoma Territory and will be considered as included in western Oklahoma for the purposes of this section.) It is unclear how, when, and why the tribes of western Oklahoma with the exception of the Osage, came to be nonreservatiou tribes. It appears to have come about as a result of conflicting case law. Prin- ciple cases involved are U.S. v. Namsey, 271 U.S. 467 (1926) affirming Federal criminal jurisdiction over trust allotments within the Osage Reservation; Ex Parte Nowahhl, 61 P. 2d 1139 (Okla. 1936), affirm- ing State jurisdiction over crimes on trust allotments within the boundaries of the Five Civilized Tribes ; Tooisgah v. U.S., 186 F. 2d 93 (10th Cir. 1950) reversing its own earlier opinion and holding that the terms "reservation" and "Indian Country" were not synon- ymous (at least under the law prior to 1948 when iS ILS.C. § 1151 de- fining Indian Country (was enacted) : and Ellis v. Page, 351 F. 2d 250 (10th Cir. 1965) holding that a cession agreement which conveyed all land within a reservation to the United States subject to allot- ments in severalty to the tribal members effectively disestablished a reservation. In reaching this decision, Ellis relied on the 1950 Tooisgah decision. In view of the cession negotiations which preceded the cession agree- ment, the finding of the 10th Circuit Court of Appeals in Tooisgah., supra, may be legally questionable. The court repeatedly stated that allotment constituted "the breaking up of the reservation," and the dissolution of tribal governments.^^* This is simply not the case. The proceedings of the Jerome Commission negotiating the allotment "agreements" between the tribes and the United States shows that the intent of the Act was not to abolish the reservations or take away In- dian rights : ^^^ (Commissioner) Saybe. There was one thing I've neglected to tell you that I will now tell yon, that this contract shall not affect or take away from you anything that yon have by any treaty that you have made heretofore except that you make a relinquishment of your rights to land. :4c ***** * Satre. And the contract that we propose now we want to assure the Indians and we write it down in the contract that it does not affect any rights you may have by treaty or otherwise, they are not affected by this contract. Robert Burns, Cheyenne. The treaty of 1867 is that still binding? Jerome. I said it had never been cancelled, it has been carried out, Satre. The great father does not want you to move away from this reserva- tion ; he wants you to live here just as you live here now only that he desires 124 Tooisgah v. United States, in 186 Federal Register, 2d series, p. 98. ^ Brief in note 118, p. 53, 54. 521 that each man. woman and child shall select a place In the territory where he will live * * * Congress has never specifically extinguished the reservation bound- aries of many of the tribes, and it is not to be assumed that the vari- ous allotment acts constituted such an action. Congress knew exactly how to extinguish reservation boundaries, as seen in an Act of April 21, 1904 (33 Stat. 189) : * * * the reservation lines of said Ponca and Otoe and Missouria Indian reservations be, and the same are hereby, abolished ; and the territory compris- ing said reservations shall be attached to and become part of the counties to Kay, Pawnee, and Noble, in Oklahoma Territory * * *. The Area Director of the BIA xVrea Office in Anaclarko, Okla., recentl}' commented that : (W)e would strongly recommend that the tribal lands and individual allot- m(T according to the Bureau of Indian Affairs. Recently the tribe did a census showing 1,147 tribal members on the reservation area itself. Near the reservation, there are another 111 tribal members. «'' nottpr from Oklahoma Stato Tax Commission to AIPRC, May, 1976. 1^ Oklahoma City hearings, p. 284. '"■" Muskogee hearings, p. 11 (J. 523 In the State of Oklahoma there are another 402 members, 117 of which reside in Oklahoma City, a mere oO miles from Shawnee. Therefore a total of 1 J58 are on or near the reservation and over l.GuO in the State of Oklalioma. Clearly, the better estimate of tribal population comes from the tribe itself. Another point of contention is the i)opulation count for the pur- poses of revenue sharino-. Whenever tribal members reside in local jurisdictions, even within the reservation, those local communities count these Indians for tlie purposes of revenue sharing and the tribe cannot. An example is the Absentee Shawnee. The city of Norman and Oklahoma City receive moneys by including tribal members in their revenue sharing formulas, even though tribal leaders contend that their membei-s would prefer to receive services from, be counted in service population formulas for. and even pay taxes to, the tribes. The Federal Government has often interfered with Indian tribes in Oklahoma. Sometimes the interference is only small and aggravat- ing, such as an order from the Department of the Interior ordering the Sac and Fox Tribes to put an Absentee Shawnee woman on their tribal rolls. Other times, however. Government interference causes a significant amount of problems, especially for the Five Civilized Tribes. There are two specific problems facing the Five Civilized Tribes: (1) the reliance on the 1907 Dawes Commission rolls as the sole major determinant of tribal membership; and (2) the inclusion of the descendants of the freed slaves of the tribes, as a result of treaties made after the Civil War. on the tribal rolls.^^^ All descendants of those persons on the Dawes Commission rolls are considered tribal members for purposes of voting in tribal elections and referendums, and distribution of judgment moneys. Therefore, many persons of very little Indian blood are allowed to vote in tribal elections, making decisions which may affect their lives not at all, while aifecting Indians greatly. The other membership problem plaguing the Indians of the Five Civilized Tribes is the inclusion of freedmen bands. After the Civil War, the reconstruction treaties of the ti'ibes said that they would pro- vide lands for their freedmen. These freedmen were given allotments which have long since passed into fee simple status. ITowever, vhe de- scendants of these freedmen are considered tribal members because of the treaty provisions. It seems strange that the United States has vio- lated almost every provision of those 1866 treaties, yet it holds the Five Civilized Tribes to their word. Again, these people do not identif}' as Indians, the Federal Government does not recognize them as Indians, yet thev make decisions affecting Indians. Clearly, Congress should allow tiie tribes a method for restricting their membership to persons of Indian descent rather than imposing a Federal definition based on descendanc}' from tlie Dawes Commission rolls. The final irony of the situation is that, although the tribes must keep the descendants from the Dnwes Commission rolls for tribal political purposes, the Bureau of Indian Affairs provides services onl}' to tribal persons of one-quar- ter or more Indian blood.^^^ i-'i Mnsjkosrep hearinjrs. May 1.1, 1070. p. 107. 132 Muskogee hearings, May 13-14, 1976. 524 Another membersliip situation of concern in Oklahoma is that of tlie Osafje. The issues involvino- the Osage are so varied and complex that the major recommendations of the Commission is a special study of their problems. However, it is clear that many Osage Indians re- ceived none of the "benefits" of allotment, while many non-Indians con- tinue to reap beneJBts which could have, and ultimately should have, gone to the Osage Indian people. TRUST LANDS Currently there are 2,100 members enrolled in our tribe. All that remains of our land is 800 acres located 41/2 miles south of Stroud, Oklahoma. The land that we once owned, when we arrived in Indian Territory, was 479,668 acres * * *. — Mary McCormick "'^ (I)n our tribe * * * we have 160 acres. We are using quite a bit of that, and we have about 60 acres in cultivation that we are renting out. And we are getting very, very little money. And we don't have any monies whatsoever that our coun- cil can go to here and there. We don't have any. — Levi Stevens ^^ The effects of allotment on Oklahoma tribes was devastating. Un- fortunately, the problems still exist and there is little evidence that the Federal Government has done anythiiig to alleviate the situation. Wlien the tribes first arrived in Indian Territoiy, 90 percent of the present State was in Indian hands. As an example of the diminishment of Indian lands, \ve concentrated on the effects of allotment in Okla- homa Territory or, roughly, the western half of the State. When the tribes had all arrived in Oklahoma Territory around 1884, they owned 11,689,443 acres which was to be theirs for all time. Today Indian lands, including tribal trust lands, tribal lands in fee, and trust allotments, total 546,878.93 acres, or less than 5 percent of their treaty lands.^^^ Further, all but 22,000 acres of the lands are in individual allotments. In western Oklahoma, each and every tribal leader who was asked if his tribe had enough land replied "no." Even though the Oklahoma Indian Welfare Act (OIWA) specifically au- thorized the Secretary of the Interior to buy lands through the revolv- ing loan funds in IE A for the Oklahoma tribes and put them in trust, it does not appear that 1 acre of nontrust lands have been put in tribal ownership under the provisions of the Act. No moneys have been appropriated to the Bureau of Indian Affairs Anadarko Area Office for fulfillment of that provision of OIWA. A breakdown of lands belonging to western Oklahoma tribes and their members appears on p. 532 of this chapter. The chart shows a total of 546,878 acres of land for 22,800 tribal members on the reserva- tion, 47,503 members regardless of location. This means that ,for each member of a tribe on or near the reservation, there are 25 acres of land in Indian ownership. For each member regardless of location, there are only 12 acres of Indian land. For each individual allotment tract, there are nine tribal members, four on or near the reservation. The tracts average about 95 acres each. The problems that plague land planning for reservation tribes in other States are present in Oklahoma as well. Checkerboarding and fractionated heirship effectively stifle any long-range economic plan- ning. Further, the lands are poorly protected by the Bureau of Indian ^^ Oklahoma Cltv hearings, p. 265. i-'M Oklahoma Cit.T hearings, p. 116. 135 See statistical chart on pp. 532-33. 525 Affairs. Take the case of the allotment of a Comanche woman who leased her land through the Bureau for farming purposes. A non- Indian individual was seeking to lease the land, but was on a list of persons to whom the Bureau would ]iot lease because he had acquired a very poor record for payment. The individual's grandchild then entered a bid as a front for his grandparent and was awarded the lease. The grandchild was 17 years old and a high school student with no visible means o,f support and no collateral. \Mien time came for payment on the lease, the lessee could not pay. Incredibly, the Bureau then extended the lease, supposedly to give the individual time to pay off. Only on Indian land could a person get away with such actions. To date, the situation remains unresolved and a Comanche woman is still waiting for her lease money. Add to these problems the assertions of tribal leaders that service population figiires are much too low, and you see that the tribes have very little chance to become self-sufficient. Moreover, the effect of some State laws is to force still more land into fee status through partition actions as a result of fractionated heirship. Likewise, Indians in Okla- homa are subjected to State probate laws where non-Indians are not, there being no rational basis for this discriminatory treatment. So numerous are the special laws granting the State of Oklahoma special rights over Indians that Felix Cohen devoted a separate chapter to it in his Handbook of Federal Indian Law (see chapter 23). Finally, few of the tribes have land acquisition and consolidation programs because they simply do not have the resources. Also, the Secretary of the Interior has the authority to place land in tiiist when it is acquired by the tril3es, yet the Department has established a policy that land, generally, will be placed in trust only with specific congressional approval. Three recent examples of this policy are seen with the Absentee-Shawnee. Citizens Band of Potawatomi, and Southern Cheyenne- A rapaho Tribes. All three were awarded lands formerly used by the Federal Government, only to have to pay taxes on the land until Congress acted to have the lands placed in trust. The Comanche and Otoe-Missouria Tribes have begun land acquisi- tion programs using FHA loans, but the trust problem certainly dis- courages full-scale land acquisition and lessens the returns of such programs. Therefore, Oklahoma tribes have little, and in some cases, no land to develop even if they had moneys available for economic development. WATER RIGHTS (W)e know that the (Oklahoma State) Water Resources Board either through ignorance or indifference made decisions which are highly questionable and suspect and we inform your office now that corrective action (must) be taken by the State Government to correct the deficiences that have been allowed to exist and grow because of ignorance of the law * * *. We believe that all Indian water rights exist on all major streams within the State of Oklahoma.^^ T\'ater rights may well be the most important economic asset accru- ing to the tribes of Oklahoma. As on other issues in Oklahoma, the Bureau of Indian Affairs and the Department of the Interior has refused to take a stance in support of the existence of Indian water rights. i3« United Indian Tribes of Western Oklahoma, position paper on water rights. 526 There is no legal basis foi' Indian water riohts in Oklalioma being distinguished from those of other Indian tribes in other States. The same legal principles apply. The tribes gained, with the establishment of reservations, rights to a sufficiency of water. The Federal Govern- ]nent has made no attempt to quantify the rights of Indian tribes, leaving the tri(:)es no recourse except costly litigation to establish their "prior and paramount" rights to a sufiiciency of water. In eastern Oklahoma, the U.S. Supreme Court ruled, in 1975, that the Clierokeee, Choctaw, and Chickasaw Nations held the rights to the Arkansas River in spite of allotment. One of the factors favoring the tribes was the notion that Avhen the treaties were made with the tribes there was no idea that a State would ever exist in their tribal area."^ This certainly could apply to all the tribes in Oklahoma, as statehood was never considered for Indian Territory until well after the last reservation was established. Even if the tribes do not control all the rivers in Oklahoma, they may still hold rights pertaining to the lands they have retained. As with so many other issues in Oklahoma, if State officials would recog- nize the rights of the sovereign tribes, the problems would not be so severe. The value of Indian water rights may be seen in the result of the Supreme Court ruling in favor of the rights of the Choctaw, Chero- kee, and Chickasaw Nations. The tribes have proposed a settlement of $60 million for lost past rights, and a 99-year lease for $6 million a year.i^^ Senator Bellmon of Oklahoma has introduced a bill in Congress that would provide for the Secretary of the Interior to make an agreement subject to congressional approval for the rights to the Arkansas River.^^^ There is a new danger in the area of tribal water rights that is beginning to face the tribes. Oklahoma is attempting to have water rights litigated in Oklahoma State courts. This is very unfair to the tribes who have consistently fared very poorly when States, who are competing for those same resources, are then the forum that adjudi- cates. The United States, as trustee of the Indian tribes, must live up to its responsibility to the tribes in defending their water rights. Moneys should be made available to these tribes for litigation costs, and Fed- eral courts are the only appropriate forum for the conflict between the State and the Indian tribes. TKIBAL GOVERNMENT We would strongly recommend that the Bureau of Indian Affairs give full force and assistance to tribes in their desire to remain — maintain full powers and jurisdiction as sovereign nations, specifically in relaton to the states whose boundaries have developed around those of the sovereisu nations' bijvnidaries. This should include the following issues but should not be limited to these : land use, taxation powers, hunting and fishing, law enforcement, tribal court system. — Virgil Franklin "" Presently, the governments of the Oklahoma tribes simply lack the resources to serve their members adequately. Their budgets are in- 137 Choctaw Nation v. Oklahoma, supra. 138 Muskogee hearings, May 14, 1976, p. 33. M» S. 3525, June 8, 1976, 94th Cong., 2d sess. "0 Oklahoma City hearings, p. 331. 527 adequate to deliver tlie services that ^governments are obligated to de- liver to its constituents. Few of the tribes have even the moneys neces- sary to establish permanent salaried positions in a number consistent with carryinq: out even the barest functions of oovernment. Instead, the tribes"^rery on transitory funding from various Government agen- cies, funding which they know, from painful experience, cannot h& relied upon. The tribes, as explained earlier, have few independent sources of revenue as economic development is nearly nonexistent, and tribal lands, scarce as they are, offer little revenue even when they are de- veloped. The end result of the lack of revenue is a situation where the tribes simply cannot carry out functions vital to their present and future viability. Further, the Bureau of Indian Affairs has shown itself incapable of adequately defending the resources of the tribes and their members. The Bureau has failed to generate the maximum, or in many cases even an acceptable, rate of return on enterprises and transactions in- volving tribal resources, particularly leases of tribal or individual lands. None of the tribal officers in western Oklahoma receive salaries for executing their duties, with the exception of the Cheyenne-Arapaho tribes who pay a nominal sum to their officers. This results often in a situation where tribal leaders are forced to conduct tribal business in what should be their leisure hours. Government simply cannot be ef- fective when its officers cannot devote a sufficient amount of time to Government business. Therefore, the tribes are forced to rely on funds from various Gov- ernment agencies. Unfortunately, these funds are not reliable as reap- plication must be made periodically with no guarantee of continuous funding beyond a certain period. Moreover, the tribes have found the regulations that go along with the funding are applied in an arbitrary and damaging maimer. A specific example is a recent decision of the Office of Native American Programs. Several tribes in Oklahoma were hiring tribal leaders as administrators of programs funded by ONAP. The tribal leaders were, therefore, able to spend a full day in the tribal office and are able to follow and respond to events more rapidly and effi- ciently. Unfortunately, in June of 1970, ONAP suddenly and, appar- ently arbitrarily, decided to enforce a rather vague conflict-of-interest clause in grant regulations. It should be noted that each grantee had , previously submitted personnel regulations which were approved by ONAP, and in none of the cases involved were the tribal leaders mem- bers of the guiding body of the grantee. ONAP, rather than finding a direct conflict of interest involved, is enforcing the decision because of an "appearance of" a conflict of interest. The regulation in no way re- quires the interpretation it is being given by ONAP. Another recent development involves directly the advent of P.L. 93-638, the '^Self-Determination Act." Prior to enactment of 638, the BIA administered the Tribal Government Development Program (TGDP). However, under the grants portion of 638, tribes are alio-; cated moneys to restructure their governments in order to begin con- • tracting under 638. According to some tribal leaders, the moneys from 638 are less than what they were receiving under TGDP. Further, the 528 tribes cannot use the 638 funds to pay their tribal officers, apparently because of regulations restricting such uses. Clearly, such restrictive guidelines are hurting the tribes, and there is no reason to believe the tribal officials would in any way abuse such funds. It is disappointing that Indian-oriented agencies such as ONAP and BIA would apply the types of guidelines which are useful in non-Indian situations to Indian governments which are simply not to be compared to non- Indian entities. Another major problem for the Oklahoma tribes is their outdated constitutions. Slightly over half of the Oklahoma tribes are organized under the Oklahoma' Indian Welfare Act. The constitutions of these tribes, like those of IRA tribes, appear based on a "model" constitu- tion constructed by BIA. The constitutions are simply inadequate to meet the present needs of the tribes. Congress should do two things : (1) Pass legislation extending all provision of IRA to the Oklahoma trilDes, remembering that IRA represented a recognition of the powers of Indian tribes, not a bestowal of such powers; (2) pass legislation allowing for new constitutions for the tribes designed to include all powers necessary to deal with present problems as well as all foresee- able future issues. Presently, Oklahoma tribes are excluded from cer- tain provisions of IRA, including those regarding creation of new reservations and general extension of the trust period, there being no rational basis for such discrimination. The multitude of promises guaranteeing the territorial intejxrity of the tribes of Oklahoma have all been broken. The tribal lands guar- anteed by treaty a short century ago are now almost entirely occupied by non-indians. Despite the declarations of honest intent and high principle, the United States has clearly failed to live up to its obliga- tions to the tribes in Oklahoma. To the great credit of the Indian people of Oklahoma, the tribes persist and strive for the self-sufficiency which was theirs before state- hood. Their courage and determination clearly merits better than they have been allowed in this society. But it cannot go on much longer. The tribes must immediately be assisted by the Federal Government, so that they might carry out the necessary functions of government which might guarantee their future viability. As elsewhere in Indian country, assimilation policies have been a miserable failure in Oklahoma. Indian people are still poor, imedu- cated, and unhealthy. While some Indian people have "made it" in the non-Indian world which surrounds them, the Federal Government cannot continue to ignore the pitiful situations of Indians in Little Axe, Watonffa, Carnegie, Hominy, Anadarko, and the even more rural areas of Oklahoma. This Commission has listened and cannot help but be impressed by the firm grasp the tribes have to what has to be done. The Creek Nation has submitted to the Commission a very fine, even excellent statement of its problems and what they see as possible solutions. The Creek report provides a plan of action which we believe serves as a giant step toward righting the innumerable wrongs perpetrated against the tribes of Indian Territory by the United States and the State of Okla- homa. We commend the Creek Nation for its efforts which continue the tradition of belief in the American system which has marked the history of the Five Civilized Tribes. 529 The United Indian Tribes of Western Oklahoma and Kansas have been awarded a grant from the BIA to conduct the survey of their powers and needs which has been needed for years and years. We recommend that this study be considered to the utmost degree in future legislation for the benefit of the tribes of old Oklahoma Territoiy. Finally, it is of utmost importance that the Federal Government impress on the State of Oklahoma the nature of the special relation- ship and responsibility the United States has with and to the tribes of Oklahoma. The tribes want cooperation, not confrontation with the State of Oklahoma. But we stress that this situation has been created by the United States and the State of Oklahoma. It is the Indian people and tribes who suffer for it. CONCLUSION Congress should act to reaffirm both the responsibility and rela- tionship of the United States to and with the Oklahoma tribes, as well as the inherent and continuing sovereign character of the Okla- homa tribes. Further, administrative regulations allowing the State of Oklahoma to interfere in this relationship should be rescinded and revised to allow the tribes direct access to the Federal Government, rather than having to go through State authorities. For the tribes of eastern Oklahoma, many more changes are necessary. While it is true that the Government attempted to terminate the Five Civilized Tribes at the turn of the century, it has not and should not complete that process. Therefore, Congress should repeal section 20 of the Act of June 28, 1898, expressing the intent of Congress to end the tribal existence of the Five Civilized Tribes. Further, the Act of June 27, 1897, granting "original and exclusive jurisdiction" to the territorial and later, the State courts, should be amended to allow the tribes a just measure of control over what remains of their tribal domain. Also, the Act of May 8, 1906, terminating Federal jurisdiction over tribal domains and granting it to the State, should be re2:)ealed, con- tingent on approval of the tribes involved. Such actions would serve to protect the tribal domain and allow the tribes to assume control of their destiny once again. The tribes of Oklahoma should be aided in their desire to assume law and order jurisdiction and assert other legitimate goverimient authority over Indian lands and/or Indian communities in their do- main. For the tribes in eastern Oklahoma, the process would take the form of retrocession legislation recommended by the Commission for P.L. 83-280 States. It is critical that the State of Oklahoma understand that this is to be a process, not an event. Such as it is, the protection offered by State law enforcement is better than none at all, and the Indian people of Oklahoma must be protected. As the tribes' capacity of policing tribal lands and other Indian lands in their tribal areas increase, they may, at their discretion, take on increasing police powers as need be. For the tribes of western Oklahoma, the extent of their jurisdictional powers will be largely glorified by the study being con- ducted by the United Indian Tribes of Western Oklahoma "and Kansas. The extent of tribal jurisdiction should be predicated on the tribes' ability to effectively use such j)owers, and they should increase as the tribes' ability to do so increases. Further, tribal ordinances should be enforceable in State courts until tribal courts are established. 530 For eastern Oklahoma, the same powers the western Oklahoma tribes have should be returned. Specifically, sections 26 and 28 of the Act of June 28, 1898, should be repealed, thereby making tribal laws en- forceable in other courts and returning the power to establish tribal courts to the tribes of old Indian Territory. Cooperation with the State of Oklahoma is crucial to this process. The tribes are willing to discuss problems with the State. The State must begin to see tribal entities as friends, rather than threats, so a better situation results for all. Finally, there is no logical reason why BIA police officers should not be present, at least in western Oklahoma. Indian people are poorly protected in Oklahoma, and the fact that the BIA has failed to im- prove the situation reflects a violation of the Federal Government's ■duty to protect Indian people and property. BIA police should be a part of tribal law enforcement programs at the request of the tribes. RECOMMENDATIONS The C ommAssion reco'nimsnds that : 1. It is the conclusion of the American Indian Policy Review Com- mission that the findings and recommendations applicable to Indians generally are part of the Federal-Indian policy and are equally ap- plicable to the Indian tribes and people of Oklahoma without distinc- tion and that no tribe or community of Indian people should be denied the benefits or advantages of Federal-Indian law or policy solely be- cause they are found within the boundaries of the State of Oklahoma. 2. Congress repeal those laws which presently restrict or remove from the tribes of Oklahoma the full measure of jurisdictional and governmental powers enjoyed b}^ other tribes in States unaffected by Public La^v 8-3-280. To the extent that the State of Oklahoma law- fully exercises jurisdiction over Indians on Indian lands at present that jurisdiction should remain as concurrent with the tribal powers, pending the assumption of full jurisdiction by the tril:)es. 3. For those tribes found lacking an adequate legal base for present assertion of tribal governmental powers, Congress provide by ap- propriate legislation for the reassumption of Federal jurisdiction and tribal jurisdiction to the exclusion of State jurisdiction adhering to the following principles : a. Reassumption of Federal jurisdiction and tribal jurisdiction to the exclusion of State jurisdiction be to the same extent as are found on reservations in States not presently exercising Public Law 83-280 jurisdiction or other jurisdiction pursuant to special jurisdictional statutes for that State. b. The extent and limitations, including any timetables for partial or total assumption of jurisdiction be at the option of the tribe which shall prepare a plan for same. c. There be direct financial assistance made available to the tribe or intertrilial group which includes a Secretarial designation necessary to qualify for LEAA discretionary funds. LEAA Act also be amended and directed to make funds available for plan- ning and preparation prior to assuming law and order functions. 531 d. The plan presented by the tribe or intertribal group reflect consultation with State and local governments concerning transi- tion activities and to reflect cooperation or lack thereof. State and local governments shall have no veto over the plan. e. The plan be presented to the Secretary who shall : (i) Act within 120 days to approve or disapprove the plan, and failure to act within that time shall be considered approval ; (ii) Base disapproval of the plan solely upon the basis of the inadequacy of the plan giving specific reasons and provid- ing teclinical assistance and resources necessary to meet the inadequacies where possible. (ii) Within liiO days after the passage of the Act, the Sec- retary shall draft standards for determining the adequacy or inadequacy of a tribal plan, which standards sliall be sent to the individiuil tribes of Oklahoma who shall have not less than thirty (30) days to prepare comments on the stand- ards proposed by the Secretary. The Secretary shall submit to Congress within 200 days after passage of the Act the pro- posed standards with tribal comments. f. Rejection of a tribal plan by the Secretary shall be appealable to a three-]' udge district court in the District of Columbia, and the Department of the Interior shall pay all reasonable attorneys fees and costs of the tribe or intertribal group as determined by the Federal court except where such appeal is deemed to be frivolous. 532 -2° s- f^^i^.vJt <- T Res( by dof nche acre; and :rvali the bes). md cres. 1 Potawatomi (occupied Citizen Ban Kiowa, Coma 2,969,000 Comanche. Wichita Rese cupied by Wichita Tri Cheyenne i 4,297,771 a 5 en S o _ • _0, _;„ , Q, , |5 |°- 1° -;| 15 — — ' o fij •::;oo ':^'^ CD -— r-. ■ -^ — T- *o i3 a>ii O" ♦- **- S ^ J2 'S «; 5E "- ^ • -S .^~f> ■fc E.t E „• - o w":;; I T3"0 O. CI a> a> o* o — ^ o> o — _^ o — ^ o . =i^ 3 ^3^ 3 = 5 13 ^3C\J — cv] ■ — S2 22 ■ — ~ .t; r~ oo = r^ .t; r~ oo .tr >., ■^"^ l^^^l^^ -^ ^^ f^ It ^ tX *^ '^ t:; TO tool ^CDCn^cn ^aiCT)1>— ^CT)0>^^ r^ C5 .-T ^ csT .-H o 533 U3 -^ > -t: 4o - "to ** 15°° ^l* ■s2 ^°- i »q> -s 5— i-c " > oii '-'S -B _;;; v « -s ^-. ul I !5 °"o-i 5t5J M§lliiliiiip ■a -a-^r o o o o CD C3 ^ c^ ^ o^ § en ^-1 c\j ^^ !C^~".2^ o - = Si's o T ' *- « 534 C. California INTRODUCnON Tlie Indian experience in California, although similar on some levels to that of tribes elsewhere, has several imique components. The colonizing process followed by Spain (and later Mexico) culminated in the mission system. Its impact on the indigenous tribes was per- vasive. When the United States acquired the California territory, Spain's land grants to tlie various tribes were never investigated, and seldom confirmed; substantial land losses resulted. Contemporary American policy has also had a substantial adverse impact on Indians in California. The termination era singled out California Indians, wiping out the Federal status of over GO small tribes. Relocation, another policy thrust of the era, stimulated migra- tion of Indians from reservations all over the United States to the urban emploj^ment centers of California. The original focus of Public Law 83-280, likewise, was on California. The impact of these policies is still felt in the inequitable allocation of Federal Indian money to California Indians. Another result of these policies is that a large number of Indians, possibly as many as 50,000, residing in California today are not considered by tlie Bureau of Indian Ajffairs or other agencies as part of their Indian service population. The problems of Indians in California cover the entire range of problems identified in other chapters of this report. The Indians in California share, in common with their brothers in other States, tlie problems of urban Indians, rural landless Indians, Indians whose tribes have been terminated. Indians whose tribes have never been recognized, issues related to PuIjHc Law 83-280, and the special prob- lems of small tribes in obtaining adequate Fedei-al allocation of re- sources and qualification for Federal programs. The recommendations made in other parts of this report apply equally to the Indians in California. A special problem, unique to the California Indians, relates to the inequitable budgetary process used by the Bureau of Indian Affairs and the Indian Health Service in allocating funds for programs for Indians in that State. Tlie principle focus of tliis chapter on Califor- nia Indians is on this budgetary disparity with recommendations for revision of the allocation formula to correct this imbalance. HISTORICAL PERSPECTIVE In 1542, recorded contact was made with California Indians by Spanish "explorers." Subsequently, the land and its inhabitants were claimed for Spain under the international doctrine of "discovery." Colonization of this area began in 1769 with the establishment of the first mission at San Diego de Alcala. In 1822, the Spanisli-lMexican influence increased and power OA'er the exte7isive land mass was converted into the lands of the wealthy who were primarily of European descent.^^^ In tlie early years of development in this Mexican colony. 21 larire missions were established with the imposition of Spanish law. The 1" Forbes, Jack D.. Native Affierlran«^f California and Nevada, ac-Handbooht (Healdsburg, Calif. : Naturegraph Publishers, 1969) . p. 38. -^ 't % i t "i 535 law stated that all lands were to be held in trust by the Crown and that the Indian population was to be utilized in a "serf" capacity upon any land OAvned by the nobility. In addition, the law of "con- gregaciones'' provided that the Indians were to be assembled into permanent evangelical groups for the purpose of a forced labor supply. Ultimatelv, this provided an easy method for obtaining Indian land. The Spanish missions remainecf the dominant force behind Indian slavery until 1836 when the Governor declared that each mission was to be ''secularized.-' or turned into Indian towns. The "mission"' period will be remembered as the period which pro- duced the greatest and most startling changes in Indian life. Attracted in the beginning bv promises of new ways of living and agricultural tools, manv Indians flocked to the missions. Soon, the initially scat- tered huts around the mission became included in stockades where the freedom to travel was confined to the inner walls. It was this "mission" period, lasting approximately 60 years, which brought disease, famine, and pestilence to those who resided in or near the niissions.^^^ In northern California during this time, European expansion was kept to a minimum and. with the exception of light trading with Russia, the area was kept feudal free. The United States war with INIexico ended in 1848 and with it the cession of California to the United States by the Treaty of Guadalupe Hidalgo. One of the significant provisions in the treaty was that the United States a2:reed to preserve and recognize lands which were then inhabited by Indian people. During the time from cession in 1848 to the vear 1000. the Indian population of California dwindled from ap- proximately 200.000 to lo.,")OO.i^" j^ ifi^i^^ ^^,j<-|^ tl-ip discovery of gold, settlers and miners came to California by the thousands to prospect and farm with the secondary purpose of denying any Indian the use or occupancy of any land with a trace of mineral value. Out of this migration grew legislative pressure on the county courts to assume control over Indians whereby the slightest infraction could result in an Indian being auctioned off to the highest bidder as an indentured slave until his fine was adequately settled. Recognizing the increasing economic significance of the burgeon- ing State of California, President Fillmore appointed three Federal commissioners to negotiate with the Indians in an attempt to extin- guish any remaining claims to title of their land. The throe commis- sioners were sent to California to negotiate with 402 Indian chiefs. After the completion of the treaties, various legislative requests were made to the State and Federal governments asking that the Indians be removed from the jurisdiction of the State. Even thouirh the Com- missioner of Indian Affairs at that time was a large landholder from California, this attempt was unsuccessful. The negotiated treaties were submitted to the United States Senate for ratification but they were not acted upon. Treaty provisions which had not been legally ratified were, never- theless, enforced in California. The Indians of California, however, "= California Historical SociPty QiiartPrly : Sopt., 1945. pp. 229-31. ^"Kroeber, A. L., Handbook of the Indian of California (Washington DC • Oovprnmpnt Printing On^ce, Smithsonian Institute, Bureau of American Ethnography, ' Bulletin 7S j-«J»o)» p. oUl. * .OT i .A.D.8.U 02"' 536 -were not aware or informed that these treaties were not legally enforce- able. Later, the documents were ''lost'' to time and were not again recovered until 1905. It is not of secondary importance to note that non-Indian Cali- fornians, at one time, conducted "Indian hunts" whenever they "sus- pected"' the threat of Indian aggression and, coincidentally, in areas which they suspected had mineral wealth. In 1851, the Land Registration Act was passed to ascertain and confirm private land claims in California. Most Indians at that time were illiterate and, furthermore, were never informed of the Act, so their title to land could not be asserted, and was not recognized. In further denial of Indian title claims, the Act declared that all public lands were to be surveyed and preemptive rights to the land were to be accorded to all non-Indian settlers. One must also be aware that during the passage of this Act, California Indians were not accorded any legal recourse to challenge the taking of their lands. In 1875, after the gold rush, Executive order reservations were established in the State, forcing Indians to locate in confined areas near the boundaries of the State. In 1890, after the maximum loss of Indian land. Congress passed the Mission Relief Act which was designed to provide small parcels of generally poor land to southern California Indians. Congress, in 1928, enacted a law permitting the Indians of Cali- fornia to bring their actions to the U.S. Court of Claims. Recovery, however, was limited to compensation which was to have been pro- vided for lands which were to have been set aside for Indian reser- vations under unratified treaties. The attorney general of California brought the action and recovered $17 million, of which $5 million was returned to the government as administrative setoff for goods and services which it claimed it previously provided to the Indians. In 1939, another California attorney general. Earl Warren, attempted to reactivate the case through litigation and failed. In 1959, the Indian Claims Commission (established in 1946) ^** issued an order directing that the Indians of California be compen- sated for the 64 million acres of land that were taken from them illegally. In 1964, the negotiated settlement was finalized in the amount of $29.1 million or approximately $400+ per acre. The distribution of that judgment was made in December 1972, to 64,370 Indians who are descendants of the original dispossessed California Indians. DEMOGRAPHY As one would expect from the historical overview, there are at least five identifiable classes of Indian people in California: (1) urban Indians experiencing the special problems related to receiving social services from urban communities and the Federal Government ; (2) potential landless Federal rural Indians excluded from Federal social services on grounds they have no reservation land base; (3) tribes with which the Federal Government terminated relations; (4) unrecognized tribes: and (5) reservation land based tribes. The following analysis is principally directed at this last group. 1" 25 U.S.C.A. § 70. 537 The exact count of the number of Indians in California varies considerably. The Bureau of Census, with acknowledged undercount, places the hgure at approximately 60,000. State of California esti- mates 85,000. Other sources would place the number in excess of 100.000. According to the census, California has the third largest population of Indians among the States. All sources agree that the majority of the California population resides in urban areas. The census classifies 76 percent of the Indian population in California as urban. ALLOCATION OF FEDERAL RESOURCES Bureau of Iiullan A-ffairs In contrast to these population figures, the Bureau of Indian Af- fairs estimates its service population at 36,255, This figure is based on the number of Indian people who are (1) members of federally recognized tribes and (2) are living within the State. Otherwise stated, the count is based on the number of Indians living within counties containing trust land. The majority of this land is located in rural areas and has little potential for economic development. Most of the tribes have small resident populations. In 1973, the Bureau of Indian Affairs estimated the total "on reservation'' resi- dent Indian population to be 6,240."^ The fact that this estimate Avas made in the context of a general survej^ of Indian labor status suggests the possibility that this figure (6,240) may be used by the BIA in other subject areas involving allocation of Federal funds to California Indians. Whatever the reasons, it is clear from BIA budget data since 1969 that federally recognized California Indians have not been receiving a fair share of the total BIA allocation of appropriated funds. The BIA recognizes a service population of 36,255 Indians in California and uses this figure in its appropriation requests to Congress. This amounts to 6.7 percent of the total BIA. service population nationwide. However, since 1969, the total allocation of appropriated funds to California has ranged between 0.8 percent to a high in fiscal year 1977 to 2.2 percent. In fiscal year 1977, Indians served by the BIA Sacramento Area Office will receive a per capita allocation of $304.70 compared with a per capita national average of $936.21. (See tables I and II.) The BIA does not use any fixed formula for allocation on the basiS of population. Each program of BIA is evaluated on its own terms and not all programs pertain equally to all areas. Programs such as timber management, range conservation, etc., may require allocation of funds to one area which are not appropriate to another, and this clearly would be true in the context of California. However, service l^opulation does figure heavily in many people-oriented program allo- cations. And it is clear that the disparity in allocation to California Indians cannot be justified in terms of service population or in terms of stated needs. i*s Estimate of resident Indian population and labor force status, prepared by BIA, 1973. P2_i<3- 7-7 f;5 538 It has been noted that California Indians Avere singled out in the 1950's for termination of Federal relations (some 60 small tribes were affected) or for inclusion under Public Law 83-280. It is believed that the resources of this period led the BIA to adopt a policy undercount- ing its true service population in that State. While the policies of termination have now been abandoned, the budgetary system of the BIA has not allowed for a corrected evalua- tion of the service needs of these people. The BIA computes current budgets by using past budgets as data bases. Rather than significantly reevaluating allocations each year, the BIA relies on past allocations to determine cuiTent ones. Area offices which are underfunded in one fiscal year are likely to be underfunded in subsequent years. The result has teen that while Sacramento Area's share of the total budget has increased somewhat from 1969, it has not increased sufficiently to reacli an equitable level. In fiscal year 1977, the BIA budget provided for the first time nn experimental "equity adjustment" for imderfunded agencies. All agencies received a standard 1.6 percent allocation increase, but those agencies selected to participate in the "equity adjustment" received an additional 6.4 percent, making a total 8 percent increase. The Southern California Agency in the Sacramento area was selected to participate in this program, but the Hoopa and Central California Agencies were omitted. Even for Southern California Agency, 6.4 percent was hardly enough to alter radically the present unbalance. Nevertheless, it ap- pears that the BIA considers that the "equity adjustments" were "ill- received" and may not be continued."^ Clearly, an "equity adjustment" is mandatoi-y for the California Indians. The programs listed in table III serve Indians living on and off reserv^ations and rancherias, or a service population of 36.255 which includes all rural Indians living within countries containing trust land. As can be seen in table IV, the Sacramento Area fiscal year 1976 allocation consists of funds expended to serv^e the larger service population of 36,255. Tables V and VI demonstrate that even for those programs which serve Indians living on and off reservations or rancherias. the Indians of California are severely underfunded. 1" Letter of Department of Housing and Community Development, State of California to Congressman Sidney Yates dated Apr. 18, 1977. 539 TABLE I.- TOTAL FEDERAL BIA OUTLAYS AND SACRAMENTO AREA ALLOCATIONS 1969-77' [Dollar amounts in thousands] Fiscal year: 1969..., 1970... 1971... 1972... 1973... 1974... 1975.... 1976 2.. 1977 3.. Percent of total Total outlay of BIA funds Federal funds for Sacramento allocated to BIA nationwide area allocation Sacramento area J263, 094 $2, 005 0.8 302, 745 2,472 .8 364, 508 3,938 1.1 439, 685 5,810 1.3 514,866 9,924 1.9 583, 838 9,413 1.6 691,317 10, 949 1.6 867, 601 11,166 1.3 508, 265 11,047 2.2 > Figures obtained from the office of the Sacramento area director and from Federal Budget data. - Current year figures. Totals are tentative since the program year is not yet completed. The figure for the Sacramento area does not include carryovers from fiscal year 1975. With carryovers, this year's expenditures will probably total $11,482,900. ' The projected allocation for Sacramento does not include the following budget items since proposed allocations for such items have not as yet been made: Aid to public schools, law enforcement, road constrL'ction, irrigation and power construction, school operations. Only partial allocation, as yet, has been proposed for aid to tribal governments. Funding levels under that item for comprehensive planning, tribal government development, and agricultural extension services have yet to be proposed. Assuming that the above items are funded at least at current levels, the proposed allocation for Sacramento should approximate $13,403,300 plus. The National BIA total also does not include the budget items listed above. The fiscal year 19/7 estimate including such items is $816,400,000. That figure covers funding from October 1975 through October 1977 since the Federal Government is shifting from a July to July fiscal year. The period of July 1976- October 1976 will be covered by a special appropriation of $242,712,000. California's estimated $13,398,500 plus would account for only 1.6 percent of the estimated fiscal year 1977 total funds. TABLE ll.-PROPOSED FISCAL YEAR 1977 BIA BUDGET BY AREA AND SERVICE POPULATIONS' [Dollar amounts in thousandsl Area ranlov- ern interpretation of Federal law. 3. Revision of the laws relating to Federal administration to conform to the 1950 Reorganization Plan Xo. 3 adopted by Con- gress and the Executive in that year; and implementation and enforcement of the employment and contracting preference laws in the 1934 Indian Reorganization Act and the 1975 Self -Deter- mination and Education Assistance Act. 4. Revision of the laws relating to land use, acquisition, and protection so as to give substance to t\\Q declared congressional pui-pose of protecting the Indian land base. 5. Revision of the laws relating to the deposit and investment of Indian moneys to eliminate the presently confusing array of 560 provisions and to compel Executive compliance with the purpose declared by Congress in 1938 when the last of these laws was enacted. 6. Amendment of the Federal Internal Revenue Code to compel the Internal Revenue Service to conform to 200 years of judicial decisions and congressional enactments recognizing Indian tribes as governmental bodies within the American body politic, and compelling them also to shape the Federal tax laws toward in- dividual Indians in a manner consistent with the Federal trust responsibility. 7. Repeal of Federal law authorizing State taxation of Indian mineral resources and adoption of a Federal policy toward State taxation with reser^^ation boundaries which fosters the eco- nomic independence of Indian tribes. 8. Adoption of statutory provisions to authorize award of at- torney fees to Indian litigants in cases in which the Federal Go^'- ernment has either failed to exercise its responsibility to represent Indian interests or tribes have been compelled to hire inde]iendent counsel due to potential conflicts of interest with the United States, and the Indian litigant is successful in his claims. 9. Amendment of the 1968 Civil Rights Act to clarify its scope and application to Indian tribes and give maximum recognition to the sovereign rights of the Indian people to self-government within Indian country while at the same time retaining the basic protections afforded by that Act. 10. Complete overhaul of the BIA Manual with publication and distribution of this and other legal materials covered by the 1968 Civil Rights Act to Indian tribes and organizations. Title 25 presently contains numerous statutory provisions which are either superseded by subsequent legislation, obsolete by virtue of the passage of time, redundant to prior legislation, or in total conflict with present policies relating to the administration of Indian affairs. RECOMMENDATIOlSrS The Commission re com/)nends that : Congress refer the entire report of the Commission Task Force on Consolidation, Revision and Codification of Federal Indian Law to the appropriate committee or committees to bring the work to completion : 1. Optimally, referral to appropriate committees of the House and Senate or to select committees in each House with sufficient time and funds to complete the task. 2. The committee (s)' work be conducted through a process of consultation with Indian people. Creatiox or Native Americax Studies Division tx the Library of coxgress om:rview "When this Commission began its research pursuant to the mandate of Public Law 93-580 to conduct "a comprehensive investigation and study of Indian affairs,*' we made several discoveries : There have been a great number of studies conducted in the past in Indian affairs; 561 considerable sums of money have been made available by public and private sources for such research; the interest in research in Indian affairs not only continues unabated but increases ; and the demand by Congress continues for some studies, reliable statistics, Indian pro- gram reviews, and other research relating to Indian issues. Indeed, the creation of this Conunission is an indication of this need for re- search in Indian matters. But despite this gi'owing and healthy inter- est, we found that much of the basic information sources not easily available to the researcher. Also missing was a means for quickly identifying and reviewing the current materials being produced almost weekly throughout the country. This is true despite the capable efforts of the Library of Congress and other institutions to respond to the need. For example, we found that the Library of Congress has some 18,000 titles listed in its card catalog relating to Indians. This does not include the hundreds of articles in law journals and other period- icals, many scholarly analyses, statistical surveys, and hundreds of government and private reports covering the breadth of Indian mat- ters. Xor does it include bulletins, newsletters, special contract studies, and short-term research materials proierhorst. Religion as Science; Empirical Aspects of Native American Metaphysics. Barre Toelkcn. A Sense of Place and the Sacred in Native American Tradition. Barre Toelken. 1975. 563 Early Childhood Development Cultural Considerations. Commonalities, Vari- ables and Local Community Determinants for Program Modules. Anne P. Taylor and Dave Warren, 1973. The History of Federal Indian Policy in Relation to the Development of Indian Communities. Edward H. Spiers. Rei)ort of Preplanning Study into Cultural Activities in American Indian Communities. Chester Sprague, James Day. Karren Day. 1972. American Indian Culture Center Journal. Volume 4, Number 2. Fall of 1973. Bureau of Indian Affairs Education Research Bulletin. Volume 2, Numl)or 1, January 1974. World ^iew : The University Establishment and Cultural Annihilation. Barre Toelken. Perspectives in Indian Education for the 1980's. Dave Warren, 1974. The Ethnic Heritage Studies Act Program in Fiscal Year 1974 and Fiscal Year 1975. saci SEPARATE VIEWS OF COMMISSIONERS OF THE AMERICAN INDIAN POLICY REVIEW COMMISSION (565) SEPARATE DISSENTING VIEWS OF CONGRESSMAN LLOYD MEEDS, D-WASH., VICE CHAIRMAN OF THE AMERICAN INDIAN POLICY REVIEW COMMISSION (567) CONTENTS Page Introduction 571 Sovereignty — Tiibal self-government or territorial government? 573 Who did the reserving? 582 Tribal j urisdiction 583 A. Tribal powers over non-Indians 583 1. Theoretical considerations 584 2. Objections to tribal jurisdiction over non-Indians 585 3. Tribal courts 587 4. Full faith and credit 588 5. Subjection of non-Indians to Indian law and courts will destroy the practical ability of Indian peoples to make their own laws and be governed by them 588 6. Recommendation for legislation 590 B. Confusion over allocations of jurisdiction between States and tribes 590 C. Zoning 592 D. Taxation 593 1. Federal taxation 594 2. State taxation of non-Indians 594 3. State taxation of Indians 594 4. Tribal taxation 595 5. Legislative recommendation 596 E. Public Law 280 596 F. New civil jurisdiction 597 G. Indian Civil Rights Act of 1968 598 H. Financing public service 599 I. Definition of "Indian country" 600 J. Conclusion 601 Federal Indian trust relations and social welfare programs 602 Tribal land claims, statutes of limitations, and Fassamoquoddy Tribe v. Morton, 528 F. 2d 370 (1st Cir. 1975) 606 Definitions: Tril^e and Indian : Need for finality 609 Management of property rights to which Indians are entitled by treaty but which exist off the reservation 610 Conclusion 611 (569) 92-185- SEPARATE DISSENTING VIEWS OF CONGRESSMAN LLOYD MEEDS, D-WASH., VICE CHAIRMAN OF THE AMERICAN INDIAN POLICY REVIEW COMMISSION Introduction With the creation of this Commission it was hoped that Congress would have before it an objective statement of past and current American Indian law and policy so that it could exercise its powers wisely in legislating a coherent and lasting policy toward American Indians. Unfortunately, the majority report of this Commission is the prod- uct of one-sided advocacy in favor of American Indian tribes. The interests of the United States, the States, and non-Indian citizens, if considered at all, were largely ignored. This was perhaps inevitable because the enabling legislation which created the American Indian Policy Review Commission, Public Law 93-580, 88 Stat, 1910, re- quired that 5 of the 11 Commissioners be American Indians, and that each of the investigating task forces be composed of 3 persons, a majority of whom were required to be of Indian descent. Public Law 93-580, § 4(a) . As a result, of the 33 persons appointed to lead the task forces, 31 were Indian. With due regard to those who worked on the task forces, the reports were often based on what the members wished the law to be. Their findings and conclusions were often poorly documented. Recommenda- tions ignored contemporary reality. As an example, the report of Task Force No. 1 would require the return to Indian possession and jurisdiction large parts of California, Oregon, Nebraska, North Da- kota, South Dakota, and Oklahoma. Despite contemporary litigation, most Americans are justified in believing that 400 years have been suf- ficient to quiet title to the continent. In addition, the Commission's staff interpreted the enabling legis- lation as a charter to produce a document in favor of tribal positions. In support of its one-sided advocacy, the Commission's staff relied on language in the enabling legislation ordering a review of Federal Indian law and policy "in order to determine the nature and scope of necessary revisions in the formulation of policies and programs for the benefits of Indians." Declaration of Purpose, Public Law 93-580, 88 Stat. 1910. But, clearly, the formulation of policies and programs for the benefit of Indians did not require this Commission to prepare a doc- ument encompassing a tribal view of the future of American Indian law and policy. For Congress to realistically find this report of any utility, the report should have been an objective consideration of exist- ing Indian law and policy, a consideration of the views of the United States, the States, non-Indian citizens, the tribes, and Indian citizens. This the Commission did not do. Instead, the Commission saw its role as an opportunity to represent to the Coneress the position of some American Indian tribes and their non -Indian advocates. (571) 572 This Commission failed to consider the fundamental and controver- sial issues in contemporary Indian law. Instead, it assumed as first principles, the resolution of all contemporary legal and policy issues in favor of Indian tribes. Hence, the report is advocacy and cannot be relied upon as a statement of existinlierokee Na- t'>on V. Southern Kan. Ry. Co., 135 U.S. 641, 10 S. Ct. 965 (1890), the Supreme Court held that Congress had the power to take by eminent domain tribal land. The tribe had argued that the lands through which a railroad was authorized by Congress to construct its railwa^y were held by the tribe as a sovereign nation and that the right of eminent domain within its territory could be exercised only by it and not by the laiited States without tribal consent. Tlie Supreme Court rejected this argument summarily. 10 S. Ct. at 970. The Court said : The proposition that the Cherokee Nation is sovereign in the sense that the United States is sovereign, or in the sense that the several states are sovereign, and that that nation alone can exercise the power of eminent domain witiiin its limits, finds no support in tlie numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the acts of congress defining the relations of that people with the United States. 10 S. Ct. at 969. [Emphasis added.] Therefore, not only were Indian tribes not nations as was the United States, but they were not sovereions even in the domestic sense as were the several States of the Union. The Court went on to say : It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several states, and could not exercise the same power in a territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control. 10 S. Ct. at 971. [Emphasis added.] 577 The Court was making an important point. A'^liile tlie States of the Union are not political subdivisions of the United States but rather sovereign in their own sphere under the Federal Constitution, Indian tribes are political subdivisions of the United States and are under the direct political control of the United States. Since the United States could exercise the power of eminent domain in the several States, a fortiori it could exercise the same power over territory occupied by an Indian tribe. If the Supreme Court instructed us in 1886 that "[t]here exist within the broad domain of sovereignty but these two [the United States and the States]", how can the majority of this Commission conclude that Indian tribal sovereignty exists in the territorial sense rather than in the more limited sense of congressionally licensed self- government over its own members and its internal affairs? Objec- tivity should have required this Commission to state that the issue of tribal sovereignty, though long settled against Indian claims, should be reopened by the Congress and report the various arguments on both sides, making whatever recommendations it deemed appro}iriate. The Congress could then either accept or reject recommendations as a matter of policy. The Commission, in essense, is making political recommendations under the guise of legal doctrine. This Commission uses the word '"sovereignty" as it is politically used by Indian tribes ••without regard to the fact that as applied to Indian tribes 'sovereign' means no more than 'within the will of Conofress' ". Z-nited States v. Bk'clieet Tribe, 364 F. Supp. 19-2, 195 (D. Mont. 1973). Indeed, by 1901. the Supreme (^ourt would tell us that "[t]he North American Indians do not and never have constituted 'nations' * * '^''''' Montoyax. United States, 180 U.S. 261. 21 S. Ct. 358 (1901) . Advocates of inherent tribal sovereignty frequently rely on the case of Worcester v. Georgia., 31 U.S. (6 Pet'.) 515 (18.32), in which the Supreme Court struck down a Georgia statute in direct conflict with Federal treaties and statutes. But a reading of the case will show that the Georgia statute which ])urported to regulate the conduct of those in Indian country was held invalid not because of tribal sov- ereignty, but because under the Constitution, the matter of Indian affairs was exclusively within the Federal power. The Congress had exercised that power by both treaties and statutes which were in con- flict with the Georgia statute. The Court did say that the laws of Georgia could have no force within the Cherokee Xation. 31 U.S. (6 Pet.) at 561. But the Court proceeded on •"the actual state of things'', Id. at 543, and the reality of 1832 has given way to a different reality in our contemporary era. For by 1973, the Supreme Court rejected the conceptual clarity of Marshall's view in Worcester v. Georgia and rejected the broad assertion that the Federal Govern- ment has exclusive jurisdiction over the tribe for all purposes and that the State is, therefore, prohibited from enforcing its laws against any tribal enterprise whether the enterprise is located on or off tribal lancl. Mescalero Apache Tribe v. Jo^us. 411 U.S. 145, 147-18 (1973). And in McClanalian v. Arizona State Tax Commission^ 411 U.S. 164 (1973), the Court held that resei^^-ation Indians are insulated from State law, not because of tribal sovereignty, but, if at all, because of 578 applicable Federal treaties and statutes. 411 U.S. at 172. Indeed, the- Court said : [T]he trend has been away from the idea of inliereut Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption * * *. The modern cases thus tend to avoid reliance on platonic notions of Indian, sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. 411 U.S. at 172. The Court said that Federal preemption of the field was such that the- issue of residual Indian sovereignty was moot. 411 U.S. at 172 n. 8. Hence, it is clear that reservation Indians are immune from State law, absent a Federal statute to the contrary, not because of tribal sov- ereignty, but because of Federal preemption. Bryan v. Itasca County y — U.S. — , 96 S.Ct. 2102, 2105 n. 2. ( 1976 ) . If Indian tribes had inherent sovereignty, they would be free from State law even in their dealings with non-Indians. But such is not the case. State law applies to non-Indians on a reservation and the States may even require a tribe to implement State law as to non-Indians. Moe V. The Confederated Salish and Kootenai Trihes of the Flathead Reservation, — U.S. — , 96 S.Ct. 1634, 1645-46 (1976). The Supreme Court upheld this State power because it did not frustrate tribal self- government. 96 S. Ct. at 1646. It is clear that if the tribe was a govern- ment in the territorial sense rather than a limited purposive sense, the Court would be wrong since the application of State law to non- Indians would interfere with a tribe's territorial government. If, oir the other hand, tribal self-government is merely purposive, in contrast to general and territorial, then the application of State law to non- Indians is proper because it does not frustrate the limited purpose of allowing Indians to govern themselves. It is plain to me that Con- gress and the Supreme Court see tribal government in the purposive sense, not the territorial sense. Another major case relied on by the Commission to support its the- ory is Umtcd States v. Maznrk,\l^ U.S. 544 (1975). But it is clear that this case does not support inherent tribal sovereignty. On the con- trar}^ the case merely held that (1) Congress has the power to regulate the sale of alcoholic beverages in Indian country under article I, § 8 of the Constitution, and that (2) Indian tribes are entities with some independent authority over matters that affect the internal and social relations of tribal life such that Congress could constitutionally dele- gate its own authority to the tribe. The Court specifically said "[w]e- need not decide whether this independent authority [the tribe's] is itself sufficient for the tribes to impose Ordinance No. 26 [requiring retail liquor outlets within Indian country, including those on non- Indian land, to obtain a tribal license]." Despite this language, the Commission report says of Mazurie "it appeared that the tribe could exercise such regulatory power w^ithout benefit of Federal law on the basis of its OAvn inlieront sovereignty." [Commission report, ch. 5, part B at 156.] So much for objectivity. Unless words are infinitely elastic, the Court's opinion in Mazurie simply cannot be pressed into the meaning the majority report attributes to it. Similar misstate- ments of law abound in the report. The Commission report neglects to mention that there is not a single case of the United States Supreme Court which has ever held that 579 tribes possess inherent tribal sovereignty such that in the absence of congressional delegation they could assert governmental power (1) over nonmembers of the tribe, and (2) exclude State jurisdiction. The exclusion of State jurisdiction over reservation Indians has from Wor- cester to this day been based on Federal preemption. And, tribal juris- diction over non-Indians, as in Mazurie, supra, and Morris v. Hitch- cock, 194 U.S. 384 (1904), has been based on specific congressional delegation, not on general notions of tribal power. In sum, the Commission has converted the doctrine of tribal self- government into a doctrine of general tribal government by taking a quantum leap forward without any adequate legal foundation. And, I might add, prescinding now from the legal issues involved, the Commission has not even explained why, for policy reasons, it would be a good thing for Indian tribes to exercise general govern- mental powers over tho lands they occupy. The Commission has just assumed that because Indian tribes would like to exercise govern- mental powers over their territory, it would be wise to let them. There is no adequate discussion in the Commission report of the detriments of such a course of action, much less any weighing of the advantages and disadvantages. The report fails to take into con- sideration that Indian tribes are no longer isolated communities. Indian reservations now abut major metropolitan areas in this coun- try. The Commission report makes much of the fact that reservation Indians want to be left alone and be free of State interference (even though they are citizens of the State, vote in State elections, and help create State laws which are inapplicable to them), yet fails to understand that by arguing for the exercise by Indian tribes of general governmental powers, Indian tribes cannot bo left alone. For example, the Commission's recommendations would leave us with the following results. Reservation Indians would be citizens of the State but be wholly free of State law and State taxation even though they participate in the creation of State law and State taxing schemes. In short, reservation Indians would have all the benefits of citizenship and none of its burdens. On the other hand, non-Indian citizens of the State would have no say in the creation of Indian law and policy on the reservation, even if they were residents of the reservation, and yet be subject to tribal jurisdiction. In short, non-Indians would have all the burdens of citizenship but none of the benefits. This is a strange scheme to behold. The analytical framework adopted by the Commission is, in a sense, upside down. By adopting the doctrine of inherent Indian tribal sovereignty, the Commission looks at the original powers of the tribe and concludes that the tribes have retained all those powers except where expressly limited by the Congress. I submit the Com- mission's point of departure is faulty. The focus is not on the nature of the prior rights of tribal government. The question is by what mandate do tribal governments govern today? Under our Federal Constitution, tliere are but two sources of power: the States and the United States. Political subdivisions of the States derive their power from the States. Territorial governments deinve their power from the United States. United States v. Kagama, 118 U.S. 375 (1886). Hence, all political entities exercising powers of government within the 580 political boundaries of the United States are exercising powers derived either from the United States or the States. To the extent tliat the Commission does not agree with this position, it is clear that the Commission would assert that Indian tribes exercise powers of self-government in some extra-constitutional sense. In the 19th Century, when Talton v. Mayes, 163 U.S. 376 (1896) (holding that the Bill of Rights was not applicable to Indian tribes) was decided, tribal Indians were neitlier citizens of the United States nor of the States in which they lived. See Elh v. Wilk/'n^, 112 U.S. 94 (1884). Ever since 1924, however, tribal Indians have been citizens of the United States, 8 U.S.C. § 1401(a) (2), and, under the 14th amend- ment, they are citizens of the States wherein they reside. The Com- mission report ignores the events of the last 100 years. In the 19th century Congress could not always control the activities of tribal In- dians. Today Congress can. The theory adopted by the Commission would permit Congress to allow tribal governments to do what Con- gress itself cannot do because of Federal constitutional limitations. The Constitution, as originally enacted, excluded Indians not taxed in determining the number of Representatives in the House of Rep- resentatives to which a State was entitled. U.S. Const. Art, I, § 2. The 14th amendment, ratified in 1868, continued this exclusion. When Indians were not citizens, a State could prohibit an Indian from vot- ing in State elections. Elk v. WiJkms, 112 U.S. 94 (1884), despite the provisions of the 15th amendment. In short, tribal Indians were not considered part of the constitutional framework. Tribal Indians, how- ever, were brought into the constitutional framework by 1924. 8 U.S.C. § 1401(a) (2). The Commission does not deal with the effect of this. ]My point is this. To the extent tribal Indians exercise powers of self-government in these United States, they do so because Congress permits it. Tribes exercise powers of self-government as Federal li- censees, because and as long as Congress thinks it wise. ]More than a tribe's external attributes of sovereignty have been extinguished. The Commission draws a distinction between the extinguishment of exter- nal attributes of soA^ereignty, which it concedes the United States has done, and internal attributes of sovereignty, which it alleges the United States has never done. It is my position that the one goes with the other. American Indian tribal governments have only those powers granted them by the Congress. Those powers have over and again been labeled self-government and not sovereignty. It is one thing for the Concrress to permit tribal Indians to govern themselves and not be subject to Federal constitu- tional limitations and general Federal supervision. It is quite another thing for Congress to permit Indian tri})es to function as p-eneral governmental entities not suljject to Federal constitutional limitations or general Federal supervision. The position adopted by the Commis- sion would have Indian tril>es exercising powers which ihf^ United States itself cannot exercise because of constitutional limitations. Finally, there is no adequate theoretical basis for the assertion of inhei-ent tribal sovereignty. The assertion of inherent tribal sover- eiirnty proves too much. It woidd mean that whenever there is a group of American Indians livinc together on land which was allocated to them by the Federal Government, they would have the power to exer- 581 cise general governmental powers. The source of those powers would then be some magical combination of their Indianness and their owner- ship of land. Governmental powers do not have as their source such magic. Governmental powers in these United States have as their source the State and Federal constitutions. It is clear that Indian tribes do not govern themselves under State power. It is equally clear, however, that thej- govern themselves under the Federal power, and like all Federal power, their poAvers are specifically limited and the limitation with respect to tribes is one of self-government rather than the government of others. It is one thing for the Congress to permit tribal Indians to make their own laws and be ruled by them without State interference. It is quite another for the Congress to permit tribes to exercise general governmental powers without general Federal supervision. War, conquest, treaties, statutes, cases, and history have extinguished the tribe as hether indeed those powers are not tied to any specific ends at all. Tlie question is whether Indian governmental power is an instrument of Federal policy defined by its ends or whether it is an absolute prerogative without a limiting purpose. Indian peoples do not have and have not been accorded any right of government good against the sovereignty of all the people. They are not given the power of government for its own sake. Rather, it is the policy of the ITnited States to allow some Indian peoples to exercise some governmental powers over themselves for a purpose. The purpose is to allow peoples of distinct cultures, most of whose ancestors were present in this land before the non-Indians came to it, to decree tlieir own norms of conduct and to control their affairs so as to preserve their own cultures and values. The Federal purpose is to allow some Indian peoples to preserve the uniqueness of their own cultures and values by insulating them from the general municipal powers of the States. It is feared that their dis- tinctive heritages and values could be unduly burdened if Indians were answerable for all the obligations and duties imposed upon the general populace by collective decisions reflective of the culture and values of the non-Indian majority. Some Indian peoples enjoy, therefore, a unique exception to our deeply felt view that the powers of government are shared by all of our citizens on an equal footing to be exercised in furtherance of only publicly shared values, and that ethnic background is not a proper criterion for making distinctions in participation in public deci- sionmaking. In short, it is generally felt that the power to decree stand- ards of conduct and to compel the unwilling to conform to them is properly exercised only by a majoritarian democracy open to all citizens. Tlie Commission report asserts that "the ultimate objective of Fed- eral-Indian policy must be directed toward aiding the tribes in achieve- ment of fully functioning governments exercising primary govern- mental authority within [the reservations]" with authority "to do any and all of those things which all local governments within the United States are presently doing." The American people, however, have never intended to establish Indian tribes as absolute "sovereigns of the soil" over the lands on which they reside. The only "fully functioning governments" with "primary governmental authority" in any place are the governmental units open to participation of all citizens, regardless of race, birth, or 585 the uniqueness of their cultural heritages. As has been stated previ- ously, we acknowledge one sovereign, all the American people, who have expressed their exclusive sovereignty in the United States Consti- tution, which allocates all power to the United States, to the States, to all the people, and to no one else. In summary, the American people haA^e not surrendered to Indians the power of general government; Indians are given only a power of self-government. They have the power to regulate only their members and the property of their members. They have some governmental powers because and to the extent that such powers are appropriate to the Federal policy of allowing Indian peoples to control their own affairs. But there is no Federal policy of allowing Indian peoples to control the liberty and property of non-members. Tribal powers of self-government are limited by their purpose. 2. Objections to Tribal Jurisdiction Over Non-Indians With these fundamental reflections in mind, it becomes clear that Indian tribes do not have and should not have power over non-Indians or their property, except in the narrowest circumstances. Some of the specific reasons for this conclusion can be briefly outlined. First, power over nonmembers could only be justified under a "terri- torial" notion of the governmental mandate of Indian tribes. But as we have seen, the mandate of Indian tribes is not supreme within their territory ; rather their mandate is purposive, and there is no Federal polic}^ of subjecting non-Indians to a supremacy of Indians. The American people, through the Congress, have been willing to give Indian peoples governmental powers in order to assist them in the preservation of their own cultures and values. But I do 7iot believe the non-Indian majority ever considered that their willingness to leave Indians alone to be governed by their own laws also constituted a surrender of their own liberty and property to the control of Indian tribes. Even if a congressional choice to subject non-Indians to tribal jurisdiction were clear, there would be serious constitutional problems, which the Commission report ignores. The Supreme Court has held that Congress may not under its power "to make rules for the govern- ment ancl regulation of the land and naval forces" subject civilians to criminal trial in military courts because such civilians are entitled to be tried in article III courts. Eeid v. Covert, 354 U.S. 1 (1957) ; KimeUa v. United States ex rel. Singleton, 361 U.S. 234 (1960) ; cf. O^ Callahan v. Parker, 395 U.S. 258 (1969) . There would seem to be far less authority for Congress to allow the subjection of non-Indians to general criminal jurisdiction in non-article III courts operating within the boundaries of States. State general purpose political subdivisions may not exclude per- sons from voting unless the exclusion is strictly necessary to serve a compelling State interest. Avery v. Midland County, 390 U.S. 374 (1968) ; City of Phoenix v. Kolodsiajski, 399 U.S. 204 (1970) . It would be exceedingly strange if Congress coulcl authorize a group to exercise general municipal powers over all persons within a given territory yet disqualify some persons from political participation on grounds of accidents of birth. 92-185 — 77 38 586 There is a further objection to tribal jurisdiction over non-Indians which, although it may not cross the threshold of unconstitutional- ity, nevertheless raises important constitutional considerations. It may be questioned whether in promoting Federal policies concerned with the relations of Indians among themselves, it is proper to grant them governmental power over others as a mere adjunct to the exercise of their powers among themselves. Furthermore, general powers of government are far more substan- tial than the power to regulate commerce. Congress surely cannot exer- cise general municipal authority over the lives and property of citi- zens within the boundaries of a State on a theory that such powers are ancillary to Congress' commerce power. It would be even less likely that such general municipal power over one group of citizens could be granted to another group of citizens merely because Congress has the power to regiilate commerce between the two groups. It is also sometimes urged that tribal governmental power, including power over non-Indians, derives from tribal ownership of the bene- ficial interest in trust lands. But whatever authority Indian tribes may have over trust property (which is far less extensive than the prerogatives of property ownership which is not subject to Federal fee interests), those rights are ultimately rights to control property itself, not rights to control activity or property of others. Indian tribes, like other landowners, may expel trespassers or sue them for damages. But there is no doctrine whereby when entering the land of another one consents to any general lawmaking and enforcing authority of the landowner merely by virtue of being on his land. There are few values more central to our society than the belief that governments derive "their just powers from the consent of the governed." Government by Indian tribes over non-Indians, if allowed to take place, would be a clear exception to that principle. A heavy burden of justification should fall on those who would subject some of our citizens to the coercive powers of others without any opportunity or right to join in the deliberations and decisions which determine how that power is to be exercised. Those who assert that Indian tribes should be allowed to rule non-Indians offer little justification other than an appeal to the abstraction of "sovereignty". But our society sees no distinction between the rulers and the ruled; all citizens enjoy both statuses. There is little reason shown why academic deductions from the metaphor of "sovereignty" should take precedence over the Declaration of Independence and the first principles of democracy. Consequently, it is all the more inappropriate that Indian tribes should exert governmental power over resident non-Indians who plainly would be entitled to vote and participate in tribal government were it not for the accident of their race. But of course, it would frus- trate the whole purpose of allowing Indian self-government to re- quire them to allow nonmembers also to participate in their "self" government. Once participation is opened up beyond the Indian peo- ples themselves, the governmental unit has abandoned its very purpose for existing — to allow Indians to make their own laws and be governed by them. Once political participation is extended beyond Indians them- selves, there is utterly no reason for having Indian governments separate from political subdivisions of a State. 587 The recent case of Oliphant v. Schlie, 544 F. 2d 1007 (9th cir. 1976) , cert, granted (June 13, 1977), recognizing that it is the first court to address the question in 100 years, holds that Indian tribes may prose- cute on-Indians in tribal courts for criminal violations on the reserva- tions. The majority opinion in Olipliant upholds the jurisdictional claim over non-Indians on the theory that Indian tribes have all pow- ers which have not been forbidden to them and that Congress has never spoken to the question of jurisdiction over non-Indians. This view, of course, inverts the proper analysis and ignores history. The scholarly dissenting opinion of Judge Kennedy correctly points out that such jurisdiction has generally not been asserted and that the lack of legis- lation on this point reflects a congressional assumption that there was no such tribal jurisdiction, not an implication that tribes should have such powers. The Oliphant case does not dispose of the question, and even if it is upheld by the United States Supreme Court, the Congress must still decide whether Indian power over non-Indians is wise. 3. Tiihal Courts Even assuming that Indian tribes should and may proscribe the standards of conduct and the civil and criminal liabilities of non- Indians within Indian reservations, it would be even more inappropri- ate for Indian courts to exercise criminal or civil jurisdiction over unwilling non-Indian defendants. Again, the courts of tribal governments can have no broader reach than the purposes for which Indian tribes are granted governmental power in the first instance. That purpose is to regulate the Indians' affairs among themselves. The only purpose of subjecting non-Indians to the enforcing powers of tribal courts would be to allow Indians to govern non-Indians. Nor can it be said that tribal criminal enforcement against non- Indians should be allowed in order to fill a gap in the preservation of law and order on the reservation. To the extent that State criminal laws apply of their own force to non-Indian activities on reservations, non-Indian violators can be prosecuted in State courts. "Wliere Indian peoples feel that States are applying insufficient manpower to the en- forcement of State laws against non-Indians, that problem can be met by cross-deputizing tribal police as State peace officers. The cross- deputized tribal/State peace officer would then have authority to ini- tiate prosecutions agamst non-Indians in State courts when the tribal officer apprehends the non-Indian breaching the peace. To the extent that State law may not apply of its own force to non- Indian lav.'breakers on the reservation, State law would nevertheless apply indirectly through the Assimilative Crimes Act, 18 U.S.C. § 13, enforcement of which is in the Federal courts. See 18 U.S.C. § 1152. In summary, there is no lack of enforcing authority which would show a practical necessity for subjecting non-Indians to criminal prosecution by the arm of a quasi-governmental entity from which thev are excluded from political participation because of accidents of birth. Eeservation Indians in States which have neither been granted nor assumed jurisdiction under Public Law 280 are immune from suit in the State courts for causes of action which arise on the reservation. 588 Such Indians may be sued only in the tribal courts. Indians may, however, have access to the State and Federal courts on the same foot- ing with all other persons. Some Indian tribes have claimed authority for their courts to hear claims against nonmembers. See Cowan v. Rosebud Sioux Tribe, 404 F. Supp. 1338 (D.S.D. 1975) . There is no justification for the exertion of civil jurisdiction against unwilling non-Indian defendants in tribal courts. The State or Fed- eral courts are fully capable of hearing all such claims. It would be a drastic turnabout of Federal Indian policy to say that tribal courts may be used not as a shield but as a sword to assert claims against non-Indians. Again, the fundamental question involved is whether Indian government is self-government or general government. Only if the tribe enjoys general sovereignty of the soil can there be any justification for their courts exercising jurisdiction over nonmembers merely because the claim arose within the geographic boundaries of the Indian reservation. Such an affirmative assertion of jurisdiction is not tied to the policy of allowing Indians to make their own laws and be governed by them but rather is a claim to make laws to govern non-Indians. Indian tribes have no such mandate from the people of the United States. Jj,. Full Faith and Credit The Commission report argues strenuously that civil judgments of tribal courts should be given full faith and credit by other courts of the States and of the United States. To the extent that tribal judg- ments are entirely between members, do not implicate any interests of nonmembers, and are arrived at according to substantive legal rules and modes of procedure satisfactory to the Indian peoples of the tribe whose court has entered the judgment, I see no substantial reason why such judgments should not be afforded full faith and credit. However, judgments against unwilling non-Indian defendants should not be afforded full faith and credit. Since such assertions of civil jurisdic- tion over non-Indian defendants exceed the jurisdiction of tribal courts, judgments against such defendants would not be entitled to full faith and credit under traditional legal concepts. The question, then, of whether Congress should require full faith and credit for such judgments raises all the same considerations of whether non-Indians should be subjected to the civil jurisdiction of Indian courts in the first place. 5. Subjection of Non-Indians to Indian Law and Courts Will Destroy the Practical Ability of Indian Peoples To Make Their Own Laios and Be Governed by Them Arguments are often made by Indian advocates that jurisdiction over non-Indians must be granted to tribes because the lack of such jurisdiction is inconsistent with the notion of "tribal sovereignty". Admittedly, if Indian tribes were sovereign within their boundaries, it would follow that all persons within their boundaries are subject to the rule of Indians. But the premise is false. Only the people of the United States are sovereign and neither Indians nor anyone else have any claim to sovereign power good against all the people. _ Furthermore, it would be disastrous to Indian interests for tribes to have power over nonmembers. If we assume that the governmental 589 powers accorded to Indian tribes include the exercise of jurisdiction over non-Indians, then the non-Indian majority would have a vital stake in the precise content of all laws enacted by every Indian tribe and in all procedures utilized by them to enforce their laws. To the extent that non-Indians are subject to the rule and the process of Indian quasi-governments, all non-Indians have a direct stake in how those governmental powers are exercised by Indian tribes. Congress would have no choice but to closely supervise Indian governmental decisions in a way which would totally frustrate the very purpose of giving Indians governmental powers in the first place. This point could be illustrated in manj^ ways, but let us look specifically to the effect that tribal court jurisdiction over non-Indians would have on the Indians' ability to decide how their courts shall operate. If the liberty, property, and financial security of non- Indians are to be at the mercy of Indian judges hearing claims by their constituents against non-Indians, the non-Indian majority will justly demand the same degree of procedural exactitude and published rules of law which they are used to enjoying in the courts of the States and of the United States. We have complex procedural systems designed to assure correct and fair decisionmaking. We also have appellate review^ to assure uniformity in decisionmaking and to mini- mize the possibility of bias or error in individual cases. "Where the rights of litigants involve questions of Federal law we have a right to seek review in the United States Supreme Court. Indian tribal courts by contrast have very few of these complex assurances of fairness and accuracy in decisionmaking. Few tribal judges are trained in the law of the States and of the United States, and few tribes have systems of appellate review. Apparently none publishes appellate decisions. There is no appeal to the authoritative sources of law whether it be the highest court of the State or the United States Supreme Court. The Indian Civil Rights Act of 1968 provides some limited review in the Federal courts for decisions of tribal courts insofar as those decisions impinge on minimal constitutional guarantees. But there is no review in Federal courts for decisions of Indian courts which are merely erroneous unless the error reaches constitutional magnitude or it deprives one of personal liberty. '\'\niile Indian peoples should be largely free to choose whatever quality of judicial process they wish to have for themselves, most of the non-Indian majority will insist upon having for themselves ample assurances of fairness, competence, and correctness of decisions. The absence of appellate review would be especially intolerable, and Con- gress would surely require tribes to provide for it. Indeed, Congress would be remiss in its duty to the non-Indian majority if it did not prescribe high standards of legal process according to the expecta- tions of non-Indians, if non-Indians are to be subject to tribal courts, Consequently, it would be profoundly unwise for Indians to force non-Indians to become involved in the details of tribal government by asserting jurisdiction o^-er non-Indians, Indeed, as has been ex- pressed above, once Indian tribes have assumed regulatory and court jurisdiction over non-Indians, the entire justification for allowing Indian peoples the limited governmental powers they enjoy will have vanished. 590 6. Recommendation for Legislation I recommend that CongTess enact legislation directly prohibiting Indian courts from exercising criminal jurisdiction over any person, "whether Indian or non-Indian, who is not a member of the Indian tribe which operates the court in question. I further recommend that Congress enact legislation prohibiting Indian courts from exercising civil jurisdiction over any person, whether Indian or non-Indian, who is not a member of the tribe which operates the court in question, unless the non-Indian defendant ex- pressly and voluntarily submits to the jurisdiction of the tribal court after the claim arises upon which suit is brought. B. CONFUSION OVER ALLOCATIONS OF JURISDICTION BETWEEN STATES AND TRIBES One of the most important and perplexing questions in Federal Indian law and policy is the allocation of powers between States and Indian tribes. The problems are enormous and their ramifications extensive, and it is especially regrettable that the Coimnission, rather than thoroughly and fairly analyzing the many problems, chose instead to write a party tract uniformly advocating the maximum extension of tribal jurisdiction at the expense of State jurisdiction. In writing these minority views we cannot do in the short space of a few weeks what the Commission was supposed to have done in a year's time. However, these minority views will attempt briefly to outline some of the major considerations which should go into any fair- minded attempt to divide jurisdiction between States and tribes. The inadequacy of present laws to fairly allocate those powers will then be discussed, along with some special problem areas. Several major principles concerning the allocation of powers be- tween States and tribes can be stated summarily. States do not have governmental power over reservation Indians for their activities on the reservation unless expressly granted by the Federal Govern- ment. McClanahan v. Arizona State Tax Commission^ supra. States do have power over the off-reservation activities of reservation Indians. Mescalero Apache Tribe v. Jones^ supra. However, Indian reserva- tions are part of the States within whose boundaries they are situ- ated, and the States' powers over their territory are limited only to the extent that Federal law mandates restrictions on those powers. States enjoy comprehensive power over non-Indians and their activities on reservations, unless such State jurisdiction is expressly precluded or preempted by Federal law. State jurisdiction may also be barred under the nebulous doctrine against "infringement of tribal self- government". Williams v. Zee, supra. The ultimate goal in allocating powers and responsibilities between tribes and States is to do so in a fashion appropriate to the legitimate interests of each political body. More specifically. States should not be allowed powers which in fact hamper the Federal purpose in giving Indian tribes governmental powers in the first instance — to allow Indian peoples to make their own laws and to control their own internal affairs. (But to the extent that national policy wishes to see reservation Indians enjoy the benefits they would otherwise 591 derive from participation in the aliairs of the State goveriunent, but which tliey are not required to support, it is only fair for national policy to look to the tribe or to the national goveriunent to provide those benefits.) Another goal of the allocation of powers is to avoid misallocation of economic cost and benefits. The division of powers should be such that the Indian reservations do not become jurisdictional islands from which activities which significantly affect the States' interests can be conducted outside the reach of tlie States' power to regulate them. Similarly, Indian reservations should not be allowed to become juris- dictional islands to which non-Indians can, for the sole purpose of escaping State authority, easily relocate their activities which would otherwise transpire off the reservation. Absent Federal statutes, the courts have evolved a vague and in- definite '"rule" for determining when State jurisdiction over non- Indians for their activities transpiring on Indian reservations is to be precluded. The rule is the ''infringement of tribal self-govermnent rule" articulated in WiUiams v. Lee, and explained in McClanahan v. Arizona State Tax Commission. In WilliaTm v. Lee, 258 U.S. 218 (1959), the court stated: Essentially, absent governing acts of Congress, the question has always been •whether state action infringed on the right of reservation Indians to make their own laws and be ruled by them. 358 U.S. at 220. In McClanahan v. Arizona State Tax Commission^ supra, the Su- preme Court made clear that the Williams v. Lee "infringement" rule is meant to test the permissible scope of State jurisdiction over the non-Indian aspects of transactions on the reservation involving both Indians and non-Indians : In these situations, both the tribe and the state could fairly claim an interest in asserting their respective jurisdictions. The WiUiams test was designed to resolve this conliict by providing that the state could protect its interests up to the point where tribal self-government would be affected. 411 U.S. at 179. Where State jurisdiction over reservation activity of non-Indians will in fact impair legitimate tribal power, State jurisdiction must yield even though the State may otherwise have legitimate claims to regulate. The "infringement" rule has proved to be a very poor discriminator between permissible and impermissible State jurisdiction because the rule does not identifj' what the "legitimate governmental interests" of tribes are over transactions involving both Indians and non-Indians. The loAver court decisions applying this test are utterly irreconcilable. The "infringement" test is further plagued by a tendency by some courts to confuse "self-government" with "sovereignty", a confusion zealously cultivated by some Indians and their lavrvers. It is clearly beyond the scope of these minority views to articulate a comprehensive statement of how State/tribal allocations of power should be made, but several obvious suggestions can be made for im- proving the "infringement" rule. Xo infringement of tribal self-government should be found unless the non-Indian activities over which State jurisdiction is sought are part of a complex of activities which are substantially Indian in char- 592 acter. This threshold requirement of "substantial Indian involve- ment" is necessary to assure that non-Indians are immunized from State law only Avhero it is incidental to and necessary for insulating- Indians from State law. As a closely related requirement, immunity-motivated conduct of non-Indians should not be immune from State law. AVliere transactions take place or take a particular form precisely because of hoped-for immunity to non-Indians, no tribal interest is truly implicated other than possible tribal desires to "franchise" their immunities to non- Indians. But such "interests" are not legitimate. Otherwise it would be possible for Indians to "market" immunity from State law by in- ducing essentially non- Indian activities to relocate on the reservation and bji' coloring them with a mere form of Indian involvement. For example, in a number of recent cases Indian tribes have entered into long-term leases of trust land to non-Indians for development and subdivision to other non-Indians. The courts have uniformly held that States may tax the leasehold interests of such non-Indian lessees and sublessees, even though there is a clear effect on Indian interets. E.g., Chief Seattle Properties^ Inc. v. Kitsap County, 86 Wash. 2d 7, 541 P. 2d 699 (1976) ; Fort Mohave Trite v. County of San Benmdino, 543 F. 2d 1254 (9th Cir. 1976) . ^ There are also areas in which unitary regulation is necessary and therefore Indian reservations should be subjected to State jurisdiction. One example is the control of air pollution, which respects no political boundaries. Congress has charged States with the achievement of Fed- eral air pollution standards within their boundaries, yet it is argued that the Clean Air Act does not authorize States to apply and enforce their air pollution laws on Indian reservations. Without getting into the details of Federal air pollution statutes, it is evident that States cannot meet the problems of air pollution unless they have authority coextensive with the problem. Many other areas of law are similarly in need of unitary regulation and enforcement. The Commission could have done a great service by identifying those areas and recommending appropriate legislation. C. ZONING One area in which the conflict of jurisdictions is especially trouble- some is land use regulation. The very justification for land use regu- lation is the concern with the external effects of land use, the effects of which are felt beyond the boundaries of the particular parcel o,f land itself. Indian reservation land situated close to urban development presents thorny problems of inconsistent and exploitative uses between Indian and non-Indian lands. On the one hand, it is usually felt that only the Federal Government can ultimately control the uses of Federal lands, although the practice of the Federal Government is to cooperate closely with local authori- ties. On the other hand, the existence of jurisdictional islands within urban areas holds out the possibility of self-interested exploitation which would frustrate the very purpose of regional land use planning. The individualized nature of land use planning decisions has made it difficult for courts to supervise the decisions of regulatory authori- 593 ties, and it is felt that the principal defense against abuse of the immense powers wielded by land use regulatory bodies is their ac- countability to all of the public. Sectionalism and favoritism are less likely to occur where the regulatory bodies are politically accountable to all the persons who will benefit or sufi'er from land use decisions. Hence, the fractional ization of land use leg-ulatory authority frus- trates land use planning generally. State power to legulate use of Indian trust land is uniformly pro- hibited. J]ven in States which have acquired general civil and crimi- nal jurisdiction under Public Law 280, the most recent authority is that they may not regulate land use. Santa Rosa Band of Iiidmns v. Khgs County, 532 F. 2d 655 (9th Cir. 1975). Some specific Federal statutes have required the Secretary of the Interior to consider compatibility with surrounding land use planning when approving leases of Indian land. But in general no attempt has been made to reconcile Indian land uses with surrounding non-Indian land use planning, or vice versa. Again, this is a problem which would have benefited much from careful factual and theoretical analysis. The Commission has chosen to ignore this problem, probably because an}^ fair solution to it would entail some limitations on the prerogatives now enjoyed by Indian tribes. The problems are especially difficult with land owned by nonmem- l)e]-s Avithin tlie boundaries of the reservation. Obviously State regu- lation of such land use has the potential of bearing much more di- rectly upon surrounding Indian interests than upon nonreservation inteiests. But to allow tribal regulation of land uses by non-Indians raises again all the problems discussed previously concerning tribal jurisdiction over non-Indians. The solution will ])robably lie in some types of cooperative arrange- ments among local governmental units, Indian tribes, and Federal administrators. But it would seem that there must be authority in the Secretary of the Interior to override positions of tribal leaders them- selves both because the land in question is ultimately Federal in own- ership and because the Secretary, unlike tribal leaders, is responsible both to Indians and to non-Indians and is therefore better able to fairly resolve conflicts that may arise between such groups. The implementation of such cooperative land use planning would require much legislative study. The fact that it has received virtually none from this Commission is highly disappointing. In the absence of ultimate authority over Indian land use planning lying with Federal officials, the fairest system would l:>e to place final authority in State planning authorities in which Indians would par- ticipate equally with other affected citizens. D. TAXATIOX There is a simple and fair formula for deciding who shall be taxed by whom in Indian country. The United States should tax all persons on Indian reservations the same as it does persons elsewhere. States should tax non-Indians and their property. Tribes should be able to tax members and their property. 92-185—77 39 594 1. Federal Taxation Neither Indians nor non-Indians on reservations should enjoy ex- emption from Federal taxation. As citizens of the United States with equal participation in and enjoyment of the benefits of the Federal Government, there is no reason why Indians, any more than an}^- one else, should receive favored tax treatment from the Federal Government. 2. State Taxation of Non-Indians The courts have uniformly held that taxation of leasehold interests of non-Indian lessees of Indian land does not bear closely enough upon Federal policies in order to infringe on legitimate tribal self- government. Fort Mohave Tribe v. County of San Bernardino^ supra. The Commission report suggests such taxation should be precluded. The Commission also suggests a sweeping Federal tax immunity for non-Indian activities on Indian reservations so that the tribes would be free to assert or decline taxing authority over such non-Indian activities. The Commission would also shift to the State the burden of proving that taxes on non-Indian activities within Indian reservations do not interfere with tribal self-government. This is but another example of the majority's attempt to color Indian tribal authority within their reservations as a general terri- torial authority, rather than a purposive authority limited to regu- lating the conduct of Indians themselves. The suggestion also totally ignores the legitimate interests of states in deriving tax revenues from activities of their non-Indian citizens. Typically, non-Indians con- ducting activities on an Indian reservation take advantage of the whole panoply of State benefits and services. They enjoy the benefits of State law and travel off the reservation in connection w^ith their activities on the reservation. There is simply no justification for pre- venting States from levying nondiscriminatory taxes against non- Indian activities merely because those activities are situated on Indian reservations and Indians would profit from selling immunity from State taxes. The broad immunity for non-Indians suggested by the Commis- sion would also result in large-scale tax-motivated relocation of non- Indian activity onto Indian reservations. It is not, and never has been. Federal Indian policy to allow Indian tribes to market immunity from State laws by selling the privilege to locate activities on Indian land. Fort Mohave Tribe v. County of San Benmrdino^ supra. 3. State Taxation of Indians States may not tax reservation Indians or their pro]:»crty when situ- ated on their own reservations. However, when Indians go off the reservations, they become generally subject to the law of the State, in- cluding tax laws. Mere status of the reservation Indian does not grant one a personal immunity from the obligations of State law when one leaves the reservation and takes advantage of the protections of State law off the reservation. The proper statement of State power to tax Indians is that contained in the report of the Western State Tax i 595 Adiiiinistiators discussed in the majority report. The State may not impose taxes, tlie legal incidence of which falls upon reservation ac- tivities or property of Indians. However, States may tax the reserva- tion activities or property of non-Indians and Indians who are not members of the tribe on whose reservation they are found. Since non- member Indians have no right to participate in the government of a tribe to which they do not belong, it would be contrary to the purposes of Federal Indian policy and invidiously discriminatory against non- Indians to allow non-member Indians immunity from State law and taxation merely because they are Indian. 4. Tribal Taxation It may be seriously doubted whether Indian tribes enjoy the power to tax. A few old, lower court cases, none less than 70 years old, recog- nize that power. In any event, I have no quarrel with tribal powers to tax, as long as the power is limited to taxation of members and their property. Taxation of their own members and property would be an appropriate way of financing the Indians' government of themselves. The majority asserts the tribe should be free to tax non-Indians and their property situated on reservations. Again, they deduce this power from the assumption that Indian tribes are general governmental units with authority over all things and persons within their boundaries. Taxation of non-Indians and their property would be especially per- nicious because of their exclusion from participation in the political processes which control the supposed power. The majority weakly suggests that non-Indian interests would be adequately protected by judicial review in the Federal courts once tribal taxation becomes con- fiscatory. Assuming that the doctrine against confiscatory taxation retains any vitality in contemporary constitutional law, this remedy would be blatantly inadequate to protect all the legitimate interests of non-Indian taxpayers. Those who pay taxes are entitled to be con- cerned about the level of taxes and uses to which they ai'e put long be- fore the taxation becomes confiscatory. Apparently feeling the weakness of its position, the majority sug- gests that "any tax assessed and collected from a resident nonmember may have to bear a reasonable relationship to a service provided or available to such resident nonmember," But the majority fails to sug- gest how any teeth could be put into this restriction. Tribes have no power to tax non-Indians or their property because tribes have no power at all over non-Indians or their property. Again, Indian tribes have a limited privilege to govern themselves; they have no general power of government within the boundaries of their reservations. There are also serious constitutional values implicated in any attempt by Indians to tax non-Indians. Some Indian tribes enjoy gov- ernmental powers only because and as long as Congress, as a matter of national policy, thinks it is wise that they have such powers. Were it not for the Federal immunity, Indians would be entirely subject to the sovereignty of the States in which they are present. It would be irrational for Congress to tolerate a system wherein the costs of Indian tribal separatism are not to be borne by all the taxpay- ers of the United States, but rather are to be borne inordinately by those non-Indian taxpayers who, by accident, conduct activities or have property on Indian reservations. While Cono;ress may insulate Indians from State law and may subsidize their efforts at government and social welfare, I seriously doubt that Congress could levy a tax on persons or property situated on Indian reservations and then remit those tax funds to the Indian tribes. The same result is achieved by allowing Indian tribes to tax nonmembers on their lands. It is a denial of due process of law for Congress to tolerate a scheme in which the financial burden of supporting Indians and Indian government falls disproportionately on non-Indians or on non-Indian property on Indian reservations. o. Legislative Recommendations I reconnnend that Congress enact legislation confirming that States have the same power to levy taxes, the legal incidence of which falls upon non-Indian activities or property, on Indian reservations as they have off Indian reservations. The only exceptions to this blanket recog- nition of State taxing pov,er over non-Indians should be in the rare situations where comprehensive Federal regulation of specific subject matters would independently preempt State regulation, including taxation, of non-Indian activities on Indian reservations. See Warren Trading Post Co. v. Arizona State Tqjx Gommiission^ supra. I also recommend that Congress expressly proscribe taxation of nonmembers or property of nonmembers by Indian tribes. E. PUBLIC LAW 280 A special concern to many States is Public Law 280, under which many States have been granted or have assumed general civil and criminal jurisdiction over Indian reservations. As the Commission report indicates. Public Law 280 has been interpreted to subject res- ervation Indians to the States' criminal law and civil law of general applicability between private persons, and to enforcement in the State courts. The law has been interpreted not to allow application of gen- eral regulatorv laws or tax laws to reservation Indians. BryanY. Itasca Coimty. — U.S.—, 96 S. Ct. 2102 (1976) . The effects of Public Law 280 cannot be conveniently summarized. It allows State enforcement of criminal law and provides a State civil forum for litigation against reservation Indians with certainty that the civil law of the State generally applicable to private persons will be the rules of decision in such cases. The effects of the civil jurisdic- tional aspects of the statute probably include the facilitating of grant- ing credit, doing business and making investments by non-Indians on reservations by assuring a forum and a predictable" body of law for the eiiforcement of rights that flow from such transactions. The crimi- nal jurisdiction probably promotes law and order by providing an additional instrument of criminal law enforcement. It is not clear to what extent the granting of criminal enforcement l)0\yers to States obligates the States to spend their funds to provide l)ohce and law enforcement services on Indian reservations. Cono-ress' 597 apparent refusal to allow States to require the Indian beneficiaries of State law enforcement to bear their share of the costs of that service may well indicate that the States were not thought to be obligated to provide law enforcement services. A major problem raised by Bryan- v. IfaHca County, supra, is that it throws great doubt on what civil laws of the State are substantively enforceable against reservation Indians. ]Many States have assumed only designated subject matter jurisdictions, and there is now much doubt as to whether the laws they have purported to extend over Indian reservations are regulatory laws of the sort that Bryan held not to be allowed by Public Law 280. Zoning laws, as has been stated, are held not to be applicable under Public Law 280, both because they bear upon Indian trust land and because they are usually local laws, not statewide laws. Santa Rosa Band of Indians v. Kings County, supra. The reasoning of Bryan v. Itasca. County would also seem to exclude zoning regulation from the type of jurisdiction ceded to States under Public Law 280. Bryan explicitly held that Public Law 280 did not extend State taxing laws to Indian reservations. The present state of the law" seems to be that Public Law 280, which was intended to reduce jurisdictional problems in Indian reservations, has now produced its own set of wide-ranging uncertainties about the permissible jurisdiction of States within Indian reservations. Comprehensive congressional review of Public Law 280 is appro- priate, if for no other reason than to reduce the confusion that now exists about the meaning of the statute. The Commission report recommends that Indian tribes subject to State jurisdiction under Public Law 280 be granted the unilateral right to withdraw from such State jurisdiction. This reeommendation is overbroad. Retrocession of jurisdiction should be predicated only on particular findings that State jurisdiction under Public Law 280 has resulted in actual hann to Indian culture and values. Immunity from the obligations and restrictions placed on all for public benefit will always be thought desirable by the few who would enjoy the immunity. If withdrawal from State jurisdiction is to be done on grounds of Federal policy, the policy choices should be made by Con- gress, which can weigh fairly the costs of Balkanizing State jurisdic- tions as well as the advantages to Indians. F. NE"VV CmL JURISDICTION In many instances, there are no judicial forums in which certain claims can be heard. Under the doctrine of Williams v. Lee, supra, Indians may not be sued in State courts for causes of action arising on the Indian reservation. But many tribes do not provide courts with civil jurisdiction, or limit the civil jurisdiction of their courts so as to exclude many types of civil claims. The result is that many civil claims against reservation Indians, whether by Indians or by non- Indians, cannot be heard. It is doubtful that these jurisdictional gaps are intentional. The existence of these jurisdictional gaps also raises serious con- stitutional problems. Because of the interplay of Federal law and the 598 absence of tribal forums, it will often happen that parties to various transactions will have or not have remedies and enforcement forums depending on their race. So, for example, where the tribe has provided no civil court, or otherwise excludes civil jurisdiction, an Indian may have relief for injuries caused by the negligence of a non-Indian. But there is no relief if the racial statuses of the plaintiff and defendant are reversed. Surely this result is neither fair nor wise. It is not con- stitutional for Federal law to mandate a forum and relief, say in State courts, for Indians against non-Indians, but, at the same time, to allow Indians themselves to decide whether nou -Indians shall have a forum and relief against them. Assuming the unconstitutionality of this bizarre system of relief based on race, it is not clear what the consequence should bo. Perhaps non-Indian defendants of Indian plaintiffs in State courts should be allowed to raise nonmutuality as a substantive defense to the claims of Indian plaintiffs. Perhaps a non-Indian plaintiff against a reserva- tion Indian could have a claim under the Indian Civil Rights Act to compel the Indian tribe to provide a judicial forum for him such as an Indian plaintiff would have against him in State courts. In any event, it is surely unwise and probably unconstitutional to permit the Federal purpose of allowing Indians to make their own laws and be governed by them to reduce down to a system whereby different laws apply to Indians and to non-Indians involved in identi- cal or the same transactions. Congress should enact legislation allowing civil jurisdiction in State courts against Indian defendants in all cases where there would be jurisdiction in the State courts were it not for the Indian status of the defendant and where the tribal government of the Indian defendant does not provide a judicial forum to hear tlie claims against the Indian defendant. Tribal interests in regulating their own mem- bers could be protected by providing that tribal rules of decision must be given appropriate weight in the State court proceedings. In the alternative, Congress should bar actions by Indians against non- Indians for claims arising on reservations where tribes have not pro- vided forums for similar actions by non-Indians against Indians. G. INDIAN CIVIL RIGHT ACT OF 19G8 Tlie Commission report takes exception with some of the provisions of the Indian Civil Rights Act of 1968, which, for the first time, expressly subjected Indian tribes to constitutional limitations in the exercise of power. In general, the Indian Civil Rights Act is a tre- mendously important bulwark against the abuse of power, which Indians are no less capable of than other persons. I must dissent from various of the Commission's recommendations to restrict the Indian Civil Rights Act. The Commission seems to suggest tliat there should be only Federal habeas corpus jurisdiction for violations of the Civil Rights Act. They would not allow Federal jurisdiction over tribal officials who violate the constitutional rights of citizens, unless the violation re- stricts the personal liberty of the victims, such that a writ of habeas corpus could issue. There is no justification for such a restriction on Federal court vindication of federally protected rights against abuse 599 by tribal officials. By definition, the Federal courts do not grant relief against tribal officials unless tliey have violated the Federal rights of citizens. The demand for restriction on Federal jurisdiction is a demand for a license to infringe federally protected constitutional rights. The Commission also suggests that requirements of exhausting tribal remedies before having access to Fedeial courts to redress tribal depri- vations of constitutional rights should be strictly adhered to. I favor the more flexible approach to exhaustion which the Federal courts have taken. No mechanical rule can be prescribed in advance, and the courts should be free to protect constitutional rights whenever in the circumstances of particular cases it appears that it would not be bene- ficial to pursue tribal remedies. The Commission also suggests that Federal court review of uncon- stitutional tribal action should be restricted to a review on recorjfls made in tribal court. There is no justification for this restriction on the ability of Federal courts to protect constiiutional rights. Tlie sugges- tion would, in effect, transform Federal jurisdiction under the Indian Civil Rights Act into appellate jurisdiction rather than original ju- risdiction. The suggestion is ultimately grounded in a desire to insulate unconstitutional tribal action from close scrutiny of the Federal courts. I see no sense in Congress providing Indian and non-Indian peoples with constitutional rights good against Indian governments but then restricting the Federal courts' power to enforce those rights by requir- ing the Federal courts to limit themselves to the records of, or other- wise defer to the judgments of, the very agencies which perpetrate the constitutional violations. The Commission objects that the jury trial requirements of the Indian Civil Rights Act are unduly burdensome on Indian govern- ments. While it may well be true that many Indian courts are not well equipped to provide jury trials, this argument weighs against allowing such Indian communities to exercise govei-nmental powers ; it does not argue in favor of abridging tlie traditional procedural rights of our citizens. If the minimal constitutional protections which all our people cherish are too burdensome for Indian tribes to provide, then they should leave criminal law enforcement to those agencies which will provide them. I likewise dissent from the Commission's recommendations that Indian tribes be allowed to fine criminal defendants up to $1,000 and imprison them for up to a year, rather than the $500 and 6-month limi- tations which now exist. Finally, the Commission's recommendation that tribal sovereign im- munity from Indian Civil Rights Act suits be expanded is at best shortsighted. If Indian governments are to exercise governmental powers as licensees of the United States, it is imperative that they be fully answerable for the improper exercise of those powers. Tribal sovereign immunity should be drastically reduced, if not eliminated. It should not be allowed to interfere with Federal court enforcement of federally protected civil rights. H. FINANCING PUBLIC SERVICES A major problem in the present allocation of State/tribal jurisdic- tion is tile fairness of the allocation of costs of government and public 600 services. This has alrecady been alhided to in the discussions of tax- ation and Public Law 280. Present law is somewhat schizophrenic about whether reservation Indians should be entitled to the benefits of State and local governments, but at the same time not pay their fair share of the costs. For example, Public Law 280 g-ave State gov- ernments authority to enforce their general criminal and civil laws against all persons on Indian reservations in six designated States and allowed other States to assume similar jurisdiction. Yet, last year, the Supreme Court held in Bryan v. Itasca County, supra, that such States did not have authority to tax the personal property of Indians who were to be benefited by the provision of general law enforcement in their communities by the State. Assuming that residents of Indian reservations are primarily benefited by law enforcement services, it would seem unfair that States should have to provide law enforce- ment for reservation Indians but that those ])ersons not have to bear their fair share of financing those services. If it is national policy that Indians not have to pay taxes to States, but also national policy that Indians have the services that citizens and taxpayers of the States are entitled to, then it should also be a national, not a local responsibility to fund the services that national policy wishes Indian peoples to have but not to pay for. To the extent that chosen national Indian policy entails fuiancial burdens on persons other than Indians, it is neither fair nor rational for those burdens to be cast disproportionately on the taxpayers of the States in which Indian reservations are situated. I. DEFINITIOX OF "iNDIAX COUNTRY*" "Indian country" has generally been understood as meaning those areas within which Federal laws concerning Indians apply. The term has undergone a variety of legislative definitions. For the latter part of the 19th century and the first half of the 20th century, there was no statutory defmition of Indian country at all. In 1948, Congress enacted a definition of Indian country for purposes of Federal criminal jurisdiction: Except as otherwise provided in sections 1154 and 1156 of tliis title, tlie term "Indian country", as used in tliis chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the Ignited States govern- ment, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian alloments, the Indian titles to which have not been extin- guished, including rights-of-way running through the same. IS U.S.C. § 1151. But there are other discrete categories for which there is need of geographic limitation to governmental powers. Those categories in- clude the following : 1. The area within which Federal civil statutes concerning In- dians apply. 2. The area within which tribal civil and criminal laws apply to members. 3. The area within which State laws do not apply to members of the tribe. 601 4. The area within which State laws do not apply to non- members. Tribal laws and enforcement institutions should not apply to non- Indians ; however, if they did, the area within which non-Indians are subject to tribal law and courts could constitute another category. It is evident that the phrase "Indian country" is often used to refer to any and all of these discrete categories. But it is also evident that the phrase "Indian country" should not have the same reference for all these different purposes. Congress may well wish its criminal laws concerning Indians to appl}' broadly. But that does not suggest Congress also intended tribal power over members to reach equally as far. Assuming Congress in- tended tribes to have power over non-Indians, the territorial scope of that power could well be intended to be even narrower. And it may be that the reach of Federal criminal statutes is broader than the area within which Indians are to be immune from State civil laws and courts. The need for definition of the territorial reach of these different types of powers and immunities, together with the impossibility of fashioning judicial definitions, has led the Supreme Court to rely on 18 ILS.C. § 1151 for marking off the immunity of Indians from State civil jurisdiction, even though the statute defines "Indian country" only for purposes of application of Federal criminal laws. DeCoteau V. Dist. Coun ty Court, 420 U.S. 425 ( 1975 ) . There is uncertainty about the meaning of "Indian country" which only Congress can cure. Worse yet, there is danger that misuse of the statutory definition of "Indian country" given in 18 U.S.C. § 1151 for purposes of Federal criminal jurisdiction will result in inappropriate extensions of tribal powers and restrictions on State power. Congress should undertake to define "Indian country" for the various purposes for which the term is used. J. COXCLUSION There is a welter of confusion in the present law over the jurisdiction of Indian tribes, the States and the Federal Government. Such juris- dictional uncertainties result in inability to act for ignorance of what laws and enforcement institutions will be brought to bear and result in vast waste of economic resources in the litigation of jurisdictional questions. There is a preoccupation with questions of who has power and what that power is, rather than with how^ power should be wisely exercised. Indeed, the majority identifies litigation of jurisdictional disputes as a special area requiring Federal financial subsidies to Indian tribes. All this confusion is of Congress' making by act and by omission. The courts have dealt w^ith the problems on an ad hoc basis for more than 100 years, but they have not dealt with them well. In light of this great uncertainty, and the great costs and burdens of that uncertainty, it is mindboggling that the Commission could suggest that no legislative solutions to the problems of jurisdictioji should be undertaken at this time. The Commission probalDly takes this position because it fears that, if Congress were to carefully inform itself on the jurisdictional confusion and misallocations which now exist, it would 602 resolve the uncertainties and reallocate powers in ways distasteful to the champions of tribal absolutism. My view is that Congress should undertake a comprehensive reexamination of Indian jurisdiction in light of Federal Indian policy and legitimate State interests and then legislate clear and purposeful divisions of power which will allow tribes and the States to generate more good government and less litigation. Federal Indian Trust Relations and Social Welfare Programs Under the guise of legal obligation, the Commission report proposes various and vast social programs for Indians in education, health, and tribal self-government. It has done this under the umbrella of a doc- trine which the Commission itself creates and labels the Federal trust responsibility. Though the doctrine appears throughout the report, it is the major subject of chapter four. The fallacy of the doctrine as it is created by the Commission is that it confuses the content of the duties of a fiduciary with the existence of legal duties in the first instance. The Federal trust responsibility as created, defined and promulgated by the Commission has no foundation in the law. The legal duties of the United States are created by congressional treaty and statute, and are refined and defined by Supreme Court decision. Beyond those duties undertaken by treaty or statute (and contracts executed pursuant to them) the United States is subject to no "legal" duties to Indian tribes. What Congress does in the area of Indian affairs it does by voluntary choice, not under the constraints of any legal obligation. iBecause the United States has assumed the role of trustee with re- spect to some tribal assets, the Commission would also have us believe that the United States is under a permanent legal obligation to do all things helpful to the protection and enhancement of Indian lands, resources, tribal self-government, culture, prosperity, and material well-being. In addition, the Commission charges that the entitlements under its new found obligation of the United States run to all Indians wherever they may be located, however assimilated, and whether or not they retain any ties with Indian culture or tribal self-government. In short, in seeking to find some nonexistent legal basis for the crea- tion of a special status for Indians, the Commission has created a new doctrine, unknown to the law. This would convert tribal political aspirations into legal doctrine without the necessity of going through our democratic political processes. This concept cannot prevail. The Commission report goes so far as to say that its version of a "trust responsibility" is merely a congres- sional recogTiition of existing law. It is one thing to ask for programs and changes in policy. It is quite another to create a legal theory out of whole cloth and then tell the Congress that what one is asking for is already a legal obligation of the United States. As I mentioned, the fundamental fallacy with this Commission's new trust responsibility doctrine is that it confuses the existence of legal duties with the standards applicable to their exercise. Now, the existence of leropopals-at-a- time approach taken by Congresses in the past. This Commission was essf'ntiallv directed to u7idertake n r-omnrohensive review of Indian policy then, to use that review as a blueprint to make recommendations on a broad range of issues affecting Indian life. The Commission saw as central to its work the fact tliat proposed legislation must reflect the interdependence of Indian-related issues. Any legislation must in- tegrate considerations of Indian health, tribal government, tribal ju- 617 risdiction, Indian education, tribal sovereiont}-, the development and protection of resources, and the federal trust responsibility. In short, the Cons^ress must look at the whole picture ; the Commission's recom- medations are made from that perspective. Taken individually, one or more of the lejrislative recommendations advanced in the dissent might seem reasonable. To take them in such a fashion, however, would amount to the piecemeal approach which the Commission was directed to avoid. But far worse would be acceptance of the dissent's recommendations in toto. The "big picture" of Indian life which the dissent's proposals paint for us would mark a return fo the worst features of the termination and allotment periods. "Termi- nation", of course, is not a goal explicitly articulated by the dissent. But that would be the sure and practical effect of implementing the series of proposals advanced by the Vice Chairman ; eliminating tribal determination of membership, removing tribal tax exemptions, drasti- cally limiting the tribal taxing power, and severely curtailing general governmental powers of the tribes. Adoption of the narrow trust pol- icy advocated by the dissent, together with its recommendations to extinguish tribal claims to aboriginal territory and to empower states to tax and control land-use planning on reservation land, would mark as great a threat to the self-sufficiency of Indian people as did luvy proposal advanced during the unfortunate "allotment" era. By turning its back on the goal of economic independence, the dis- sent would entrench the governmental paternalism which Indian peo- ple have worked so hard to eradicate. The ultimate consequence would be the virtual assimilation of Native Americans into the dominant culture, destroying the last vestiges of a distinctively proud and inde- pendent way of life. Such a result was not intended by the Congress when it wrote this Commission's mandate. I am confident that the Con- gress, when passing upon the Commission's response to that mandate, will renew its own commitment to a proud, self-sufficient, and cul- turally distinct Indian heritage. SEPARATE VIEWS OF INDIAN COMMISSIONERS: JOHN BORBRIDGE, JR., LOUIS R. BRUCE, ADA DEER, ADOLPH DIAL, AND JAKE WHITECROW OF THE AMERICAN INDIAN POLICY REVIEW COMMISSION (619) SEPARATE VIEWS OF INDIAN COMMISSIONERS: JOHN BORBRIDGE, JR., LOUIS R. BRUCE, ADA DEER, ADOLPH DIAL, AND JAKE WHITE CROW OF THE AMERICAN INDIAN POLICY REVIEW COMMISSION It is our shared conviction that this final report of the American Indian Policy Review Coniinission will be recognized as an historic document sio:nihcantIy contributing to the orderly development of Federal Indian policy. For the first time in the history of the United States a joint commission of the Congress has conducted an exhaustive analysis of the relationship between tlie United States and Xative American governments ancl peoples. Tlie fact that five of the eleven members of the Connnission were themselves Native American, appointed in accord with Congressional mandate, constitutes a prec- edent of great importance. It is a reflection of the progressive spirit of fairness predominant in the American society that the Congress could commission a study of this kind, wherein the Indian members have participated equally with the Congressional members in formulating comprehensive recommendations designed to shape a promising future for Federal-Indian relations. In creating the American Indian Policy Review Connnission. the Congress recognized the pressing need for this work. In joining the Commission as representatives of the Indian tribes and their people, we emphatically concurred that this was a matter of great urgency. As set forth in the authorizing legislation, the purpose of the American Indian Policy Review Commission was clear and unmistakable. The Commission was charged with the task of thoroughly reviewing every aspect of the unique relationship which exists between the United States and the Indian tribes against the backdrop of history as well as presently prevailing conditions. Further, the Commission was to specificall}^ formulate comprehensive recommendations which could serve as a framework for future policy developments. In short, the parameters of existing law and policy served as a point of reference beyond which the Conmiission members, in their collective judgment, were called upon to point the direction. The work of this Commission, in our opinion, reflects the sincere interest of the Congressional members who have devoted considerable time and attention to the intensive process of reviewing and reconciling in two years the inconsistencies and confusion resulting from two cen- turies of often conflicting policies. We are convinced that the standards of scholarly analysis and objective methodoloo[y applied to the prepara- tion of this report will withstand the most rigorous scrutiny and this monumental work will prove to be of lasting value in the development of legislative remedies and resolutions. (621) 622 The 93d Congress, in providing for the establishment of the Com- mission by Joint Resolution, found that : The policy implementing this relationship (U.S.-Indian) has shifted and changed with changing administrations and passing years, without apparent, rational design and without a consistent goal to achieve Indian self-sufficiencv ; (Preamble, Public Law 93-580) It is our judgment that the goal of Indian self-sufficiency is indeed a matter of over-riding importance. Every single Indian tribe in this Nation aspires to this goal and we have recommended that, as a policy of the highest priority, the Federal Government should make a con- certed effort to assist Indian tribes in their efforts to achieve economic self-sufficiency. There are two elements essential to the ability of all Indian tribes to progress toward economic development and eventual self-sufficiency; self-government i.e., sovereignty and the trust relationship. Without governmental authority to enact laws regulating natural resource and industrial development or to license and possibly tax commercial activities within reservations, or without the judicial authority to enforce and interpret tribal laws, it is simply not possible for Indian tribes to achieve economic independence. Equally important is the continuing trust relationship between Indian tribes and the United States. The legal incidences of this relationship protect the property and the rights of tribes while symbolizing to the Indian people the guarantee of good faith and honor professed by the TTnited States toward them. The historical experience of the allotment era and the termination period conclusively proves that the direct opposite of self-sufficiency will befall the Indian tribes when the trust relationship is abrogated. As an experience in policy formulation, our tenure on the Commis- sion has been enlightening for us all. Yet, despite the legal complexities and the confusing range of issues, we have found that the cornerstone of Federal-Indian policy can be stated simply and clearly. From the very beginning of this country, the law has recognized that the Native people in this country possess a right to exist as separate tribal groups with inherent authority to rule themselves and their territory. Al- though the United States necessarily exercises predominant power, it has time and again bound itself to respect this basic Indian right and has assumed the responsibility to protect the Indian people in the possession of their lands and in the exercise of their rights. Conse- quently, self-government (i.e., sovereignty) in conjunction with the trust relationship is truly the inheritance of Indian people. Although times and conditions change, the United States' adherence to a policy of continuing to keep faith with the Indians on this fundamental level will always remain the foundation of Federal-Indian policy. This policy underlies the entire range of questions and issues addressed in great depth and detail in the final report of this Commission. There are many individuals who contributed to the investigative work of the Commission's task forces, each of which submitted sepa- rate repoits in the fall of 1976, whose efforts deserve acknowledgement. Their task force reports were synthesized by the core staff of the Commission and their entire range of recommendations were pre- 623 sented to us for deliberation, debate and approval or disapproval. This democratic process which combined the political expertise and jndor- ment of the Congressional members of the Commission with the In- dian perspective which we represented has resulted in what we feel is a very responsible, balanced and moderate range of positions. The work of this Commission has not been without a degree of con- troversy and indeed as the time approaches for the formal submittal of the "American Indian Policy Review Commission's report to the Congress, this inevitable controversy continues. In the expectation that the public's perception of the purpose of this Commission, its procedures and of the nature of this report might not be easily or clearly understood, we have determined it appropriate to offer this separate joint statement. Several considerations stand out as being the most susceptible to confusion and misunderstanding. A central question is the uncer- tainty as to whether the Commission's role was to unequivocally expi-ess the aspirations of Indian people or whether the Commission was to function exclusively as a mechanism to balance Indian interests with potential or actuallj^ conflicting interests of the States and non- Indian groups. It has always been our understanding that the Com- mission is an extension of the national political process of this coun- try's legislative body, the United States Congress. Accordingly, while it was Congress' clear intent that the Commission address those prob- lems perceived by the Indians, the Commission was equallv responsible to larger political interests and accountable to the public — just as Congress is. This has, of course, entailed some disappointment in the expectations of Indian i^eople, but this strikes us as an inevitable element of the political process. By the same measure, those whose interests may be in conflict Avith the economic, social, legal or political interests of the Indians, will undoubtedly find our recommendations do not fulfill their expectations. For example, many Indian tribes aspire to the goal of regaining original treaty boundaries. In its nar- rative analysis the report recognizes that Federal law has recognized a variety of ways through which the United States has reduced the size of reservations. Under existing laws many tribes are foreclosed from successfully asserting a right to reestablish the original treaty boundaries of their reservations. We have made no recommendation whicli would enlarge existing legal remedies which tribes are now pro- vided under the law nor have we recommended that any potential right of tribes to regain treaty boundaries be foreclosed. Similar conflicts surround the question of tribal authority, as now recognized under Federal law, to assert governmental jurisdiction over non-tribal members. The report again recognizes that existing Fed- eral law is in a developing state on this question and we accordingly made no recommendations which would call for legislative action on this issue. An unqualified advocacy position on behalf of Indians would have been to call for a legislative extension of tribal govern- mental rights. Those who are convinced that Indian tribes should not exercise any authority over non-members, undoubtedly were disap- pointed that no recommendations called for restricting oi curtailing tribal authority which may be presently supported by existing law. 624 It was our analysis and judgment that legislative intervention has not proved to be an effective or productive mamier of resolving such jurisdictional conflicts. Experience has also shown that litigation be- tween tribes and the States or other local units of government has proved to be unsuccessful at resolving satisfactorily these jurisdic- tional disputes. As the report makes clear, our conclusion was that the most obvious and satisfactory manner of settling jurisdictional/gov- ernmental disputes between tribes and States lies in the direction of negotiated settlements and/or intergovernmental agreements. In such a process each government has the opportunity to define the nature and extent of its interests and the resolution of the dispute, by definition, is in the best interests of both parties. In addition, through negotia- tion and intergovernmental agreements, a degree of flexibility which allows for mutual n^odification in the event of changed circumstances is achievable in ways which are not possible through the process of litigation or Federal legislation. The process of analysis which the Commission employed as illus- trated above was api^Iied to a wide range of such issues. Although questions of jurisdiction Avhich go to the status of Indian tribes as self-governing political entities, are perhaps the most difficult and controversial in Indian affairs, we would emphasize that this report addressed the entire range of substantive questions in Indian affaii's. Our best efforts, as were those of the Congressional members and the Commission staff, were directed at establishing a blueprint for the future development of Federal Indian policy. As Indian members of the Commission we express our appreciation to the members of Congress who have sei-ved on the American Indian Policy Review Commission. Their part in this historic opportunity for the Indian people to participate in the formulation of the United States Indian policy, we believe, will constitute a tribute to their states- manship. We commend the staff of the Commission for their uncom- mon dedication to this effort. We are personally aware of the long hours the staff has worked and the tremendous amount of energy that has gone into this report. It is fitting that this report is presented at a time when the mood of this Nation is to reexamine the past and plan for the future. In this context, the report presents a challenge to the Congress, to the American public and to the Indian people. It is both appropriate and fortunate that the Congress, as the national forum wherein all politi- cal interests are represented, is now given the responsibility and the op]:)ortunity to formally respond. As each legislative recommendation is considered by the respective Committees of the House and the Senate, the process of evaluation and l)ublic debate will afford another opportunity for all interested parties to express their views. In many respects, this crucible of the legislative process will be a true measure of the American Indian Policy Review Commission's achievements. We remain convinced that this effort will be seen as an historic contribution not only on behalf of the Indian people but on behalf of and to the credit of the American people. o ^f B 1 1 1978 i(CT