Report on tribal government

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Title:
Report on tribal government final report to the American Policy Review Commission
Physical Description:
xi, 365 p. : ill. ; 24 cm.
Language:
English
Creator:
United States -- American Indian Policy Review Commission. -- Task Force Two, Tribal Government
Publisher:
U.S. Govt. Print. Off.
Place of Publication:
Washington
Publication Date:

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Subjects / Keywords:
Indians of North America -- Politics and government   ( lcsh )
Genre:
bibliography   ( marcgt )
federal government publication   ( marcgt )
non-fiction   ( marcgt )

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Includes bibliographical references.
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Reuse of record except for individual research requires license from Congressional Information Service, Inc.
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At head of title: Committee print.
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CIS Microfiche Accession Numbers: CIS 77 J892-2
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Reuse of record except for individual research requires license from LexisNexis Academic & Library Solutions.
Statement of Responsibility:
Task Force Two, tribal government .

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University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 022411375
oclc - 02933283X
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lcc - KF49
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AA00022454:00001

Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Page i
        Page ii
    Letter of transmittal
        Page iii
        Page iv
    Letter of submittal
        Page v
        Page vi
    Acknowledgement
        Page vii
        Page viii
    Table of Contents
        Page ix
        Page x
    Tribute to former task force chairman
        Page xi
        Page xii
    Introduction
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
    Chapter 1. Relationship between Indian Tribes and the Prime Agent for the Trust--The Department of the Interior
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
    Chapter 2. Tribes as Governments--problems in the exercise of self-governing authorities
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
    Chapter 3. Federal responsibility to provide support for the functions of Tribal Government
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
    Chapter 4. Status of Tribal Government and Federal domestic assistance programs
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
    Chapter 5. Land consolidation and acquisition
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
    Chapter 6. Special problems of small tribes
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
    Chapter 7. Tribal Government Task Force Analysis of Tribal Government Accountability
        Page 89
        Page 90
        Page 91
        Page 92
        Page 93
        Page 94
    Appendices
        Page 95
        Page 96
    Appendix 1. Index to Tribal Government task force report
        Page 97
        Page 98
        Page 99
        Page 100
        Page 101
        Page 102
        Page 103
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        Page 130
        Page 131
        Page 132
        Page 133
        Page 134
        Page 135
        Page 136
    Appendix 2. Historical summary of Federal policy regarding the independent status of Indian Tribal Governments
        Page 137
        Page 138
        Page 139
        Page 140
        Page 141
        Page 142
        Page 143
        Page 144
    Appendix 3. A case study of land management and land use planning on the Quinault Indian Reservation
        Page 145
        Page 146
        Page 147
        Page 148
        Page 149
        Page 150
        Page 151
        Page 152
        Page 153
        Page 154
        Page 155
        Page 156
        Page 157
        Page 158
        Page 159
        Page 160
    Appendix 4. Coal Development v. Crow and Northern Cheyenne Tribes
        Page 161
        Page 162
        Page 163
        Page 164
        Page 165
        Page 166
        Page 167
        Page 168
        Page 169
        Page 170
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        Page 179
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        Page 189
        Page 190
        Page 191
        Page 192
        Page 193
        Page 194
        Page 195
        Page 196
    Appendix 5. Federal authorities supporting tribal power over nontrust lands within reservation boundaries
        Page 197
        Page 198
    Appendix 6. Field study of distinction between IRA and non-IRA tribal-BIA relationship
        Page 199
        Page 200
        Page 201
        Page 202
        Page 203
        Page 204
        Page 205
        Page 206
    Appendix 7. Legal analysis of Indian Reorganization Act
        Page 207
        Page 208
        Page 209
        Page 210
        Page 211
        Page 212
        Page 213
        Page 214
        Page 215
        Page 216
        Page 217
        Page 218
    Appendix 8. Analysis of administrative discretion of Secretary of the Interior regarding delegated authority over Indian tribal trust resources and income
        Page 219
        Page 220
        Page 221
        Page 222
    Appendix 9. Impact of the Indian Reorganization Act on the governmental functions of the Pueblo of Laguna
        Page 223
        Page 224
        Page 225
        Page 226
    Appendix 10. Issues in mutuality--the existing relationship between State and tribal courts
        Page 227
        Page 228
        Page 229
        Page 230
        Page 231
        Page 232
        Page 233
        Page 234
        Page 235
        Page 236
        Page 237
        Page 238
        Page 239
        Page 240
        Page 241
        Page 242
        Page 243
        Page 244
        Page 245
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        Page 247
        Page 248
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        Page 251
        Page 252
        Page 253
        Page 254
        Page 255
        Page 256
        Page 257
        Page 258
        Page 259
        Page 260
        Page 261
        Page 262
        Page 263
        Page 264
        Page 265
        Page 266
        Page 267
        Page 268
        Page 269
        Page 270
    Appendix 11. Gila River Indian Tribal Court system case study
        Page 271
        Page 272
        Page 273
        Page 274
        Page 275
        Page 276
        Page 277
        Page 278
    Appendix 12. Lower Brule Sioux Tribal Court system case study
        Page 279
        Page 280
        Page 281
        Page 282
        Page 283
        Page 284
    Appendix 13. Full faith and credit between State and tribal courts
        Page 285
        Page 286
        Page 287
        Page 288
        Page 289
        Page 290
        Page 291
        Page 292
        Page 293
        Page 294
        Page 295
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        Page 297
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        Page 299
        Page 300
        Page 301
        Page 302
        Page 303
        Page 304
        Page 305
        Page 306
    Appendix 14. Taxation powers of Tribal Governments--summary of supporting legal authorities
        Page 307
        Page 308
        Page 309
        Page 310
        Page 311
        Page 312
        Page 313
        Page 314
    Appendix 15. Oglala Sioux tribal taxation system case study
        Page 315
        Page 316
        Page 317
        Page 318
        Page 319
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        Page 333
        Page 334
    Appendix 16. Bureau of Indian Affairs support for the functions of tribal government--case study of Pine Ridge Reservation
        Page 335
        Page 336
        Page 337
        Page 338
        Page 339
        Page 340
        Page 341
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        Page 351
        Page 352
        Page 353
        Page 354
        Page 355
        Page 356
    Appendix 17. BIA Tribes analysis of population
        Page 357
        Page 358
    Appendix 18. Tribal Government task field consultant reports
        Page 359
        Page 360
    Appendix 19. Tribal Government task force surveys of Tribal Government
        Page 361
        Page 362
    Appendix 20. Speech delivered by Mr. Wilbur Atcitty--Tribal Government task force chairman--before the 39th Annual Convention of the National Congress of American Indians, Nov. 14, 1975
        Page 363
        Page 364
        Page 365
        Page 366
        Page 367
        Page 368
    Back Cover
        Back Cover 1
        Back Cover 2
Full Text









[COMMITTEE PRINT]


REPORT ON TRIBAL GOVERNMENT





TASK FORCE Two: TRIBAL GOVERNMENT




FINAL REPORT
TO THE


AMERICAN INDIAN


POLICY


REVIEW COMMISSION


ALAN PARKER, Chippewa Cree, Member
JERRY FLUTE, Sisseton-Wahpeton Sioux, Member
MICHAEL Cox, Creek, Specialist
PATRICIA ZELL, Navajo-Arapaho, Specialist


Printed for the use of the American Indian Policy Review Commission


U.S. GOVERNMENT PRINTING OFFICE
77-465 WASHINGTON : 1976


For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 Price $8.35


































AMERICAN INDIAN POLICY REVIEW COMMISSION
Senator JAMES ABOUREZK, South Dakota, Chairman
Congressman LLOYD MEEDS, Washington, Vice Chairman
Senator LED METCALF, Montana JOHN BORBRIDGE, TUlingit-Haida
Senator MARK HATFIELD, Oregon Louis R. BRUCE, Mohawk-Sioux
Congressman SIDNEY R. YATES, Illinois ADA DEER, Menominee
Congressman SAM STEIGER, Arizona ADOLPH DIAL, Lumbee
JAKE WHITECROW, Quapaw-Seneca-Cayuga


EXECUTIVE DIRECTOR
Ernest L. Stevens, Oneda

GENERAL COUNSEL
Kirke Klcldngbird, Kiowa

PROFESSIONAL STAFF MEMBER
Max I. Richtman


(II)













LETTER OF TRANSMITTAL


AMERICAN INDIAN POLICY REVIEW COMMISSION,
CONGRESS OF THE UNITED STATES,
Washington, D.C.
Hon. JAMES ABOUTREZu,
U.S. Senate, Dirksen Building, Washington, D.C.
HIon. LLOYD MEEDS
House of Representatives, Raybumn Building, Washington, D.C.
GENTLEMEN: Transmitted for your review and consideration is
the final report of the Task Force on Tribal Government, which was
completed pursuant to Public Law 93-580. The report was formally
submitted to me July 30,1976.
This Task Force has submitted its report in four volumes, three of
which constitute appendices including case studies. Because of the
volume of copying involved, we are forwarding the body of the final
report and will copy and forward the appendices later. The Com-
mission meeting on August 10, 1976 will be utilized to review the find-
ings of this Task Force.
We are forwarding a speech included in the appendices delivered by
the late Wilbur Atcitty, the Tribal Government Task Force Chairman,
which was given before the Annual Convention of the National Con-
gress of American Indians on November 14, 1975. Since this speech
was referred to in the tribute in the front of the report, it is also in-
cluded.
The Commission staff is currently performing a comparative analy-
sis of the final reports. This approach provides an in-depth analysis of
the substantive areas which will provide a rational basis for selected
alternatives. Additionally, a staff review will be completed and for-
warded on August 4, 1976 which will constitute a staff paper to be
utilized as a reviewing device for the Commission meeting.
Although I have not yet been able to carefully review this report, it
generally appears that a standard of professional competence has been
established for the remaining Task Forces.
Respectfully submitted.
ERNEST L. STEvEN.-s,
Director.
(nI



















Digitized by the Internet Archive
in 2013













http://archive.org/details/tribalgo00unit












AMERICAN INDIAN POLICY REVIEW CouMIssION,
CONGRESS OF THE UNITED STATES,
Washington. D.C. July 1976.
THE AMERIOAN INDIAN POLICY REVIEW COMMISSION,
Congress of the United States, Washington, D.C.
DEAR SiRs AND MADAM: The Task Force on Tribal Government
presents to you its final report pursuant to Public Law 93-580.
The Tribal Government Task Force Report contains the task
force's analysis, findings and recommendations of the major issues
confronting tribal governments.
In response to the cooperation received by many Indian tribes and
organizations, the task force urges that those groups and other in-
terested parties be given an opportunity to review and comment on the
Tribal Government Task Force Report prior to the issuance of the
final commission report.
The Tribal Government Task Force urges your careful consideration
of the facts presented and your cooperation in insuring the imple-
mentation of the recommendations contained herein.
Respectfully submitted.
ALAN, PARKER (Chippewa Cree),
JERRY FLUTE (Sisseton-Wahpeton Sioux),
MICAEL Cox (Creek),
PATRICIA ZELL (Navajo-Arapaho).

























The Task Force on Tribal Government owes a debt of gratitude
to the many Indian tribal community leaders and individuals who took
the time to participate in the task force hearings and meetings and
graciously cooperated with our many field researchers.

TASK FORCE ON TRIBAL GOVERNMENT
Members.-Alan Parker, Attorney, Chippewa-Cree; Jerry Flute,
Tribal Chairman, Sisseton-Wahpeton Sioux.
Specialist.-Michael Cox, Attorney, Creek.
Staff.-Patricia Zell, Ph. D., Navajo-AraDaho.
(VI)












ACKNOWLEDGMENTS


The final report of the Tribal Government Task Force represents
not only the efforts of the task force members and staff, but also the
work of many friends and consultants who did their best for us, often
under trying circumstances. We would particularly like to identify
the following individuals in grateful appreciation for their work:
CLAUDEEN ARTHUR: Navajo, Attorney-Field Reports on Zuni
Pueblo, Uintah-Ouray Reservation, Sisseton-Wahpeton Sioux.
LARRY BLACKTOOTH: Pala-Field Reports on Soboba Indian Res-
ervation, Santa Rosa "Tachi" Reservation, Pyramid Lake Paiute
Reservation, Pala Indian Reservation.
MARTIN BLANK.: Attorney. R.J. Associates-Tribal Government
Survey development, Tribal Government Issues Statement, training
of Tribal Government Field Consultants.
JERRY BERNSTMEIN: Ph. D., R.J. Associates-for his invaluable guid-
ance throughout the work of the Task Force.
LORRAINE EDMO: Shoshone-Bannock-Field Reports on Quinault
Indian Reservation, Makah Indian Reservation, Warm Springs
Reservation.
NANCY EVANS: Commission Research Staff-Analysis of tribal con-
stitutions and bylaws.
JAMrES FLYNN: Attorney-Follow-up on Tribal Government Sur-
veys, preparation of Exhibits to Tribal Government Task Force
Report.
JTLL MILLJER GODOFF: R.J. Associates-Tribal Government Survey
development.
GERALD HILL: Oneida, J.D., University of California at Davis-
Case Study Crow Creek Tribal Court System.
BOB LAFouNTAUN: Chippewa-Cree. Attorney-Field Reports on
Cheyenne River Sioux. Standing Rock Sioux, Fort Berthold Reser-
vation, Rocky Boy's Reservation.
TIM LAFRA.NC.: Chippewa. 3rd year law student. University of
California. Berkelev-A Case Study of Land Management and Land
Use Planning on the Quinault Indian Reservation.
ANTHONY LrmrF: Rosebud Sioux. J.D., Arizona State University-
Case Study of Gila River Indian Tribal Court System.
JOSEPH My'ERn : Porno Tribe, Staff Attorney, American Indian Law-
yer Trainini Program-Coal Development v. Crow and Northern
Cheyenne Tribes.
ANTrA PARLOW: Task Force Consultant-BIA Support for the
Functions of Tribal Government-Case Study of Pine Ridge
Reservation.
FnED RAGSDALE: Chemehueve Tribe, Professor, University of New
Mexico Law School-Federal Authorities Supporting Tribal Power
over Non-trust Lands within Reservation Boundaries. Legal Analy-
sis of Indian Reorganization Act. Analysis of Administrative Dis-
cretion of Secretary of Interior Regarding Delegated Authority over






VIII


Indian Tribal Trust Resources and Income, Full Faith and Credit
between State and Tribal Courts-Analysis of Legal and Practical
Considerations.
RYLAND RIVAS: Comanche, Attorney-Field Reports on Creek Tribe
of Oklahoma, Comanche Tribe of Oklahoma.
FRAN:K RYAN: Gros Ventre Tribe, 3rd year law student, Harvard
University-Taxation Powers of Tribal Governments-Summary of
Supporting Legal Authorities.
RON SOLIMON: Laguna Pueblo, J.D., University of New Mexico
Law School-Case Study of Oglala Sioux Tribal Taxation System,
Impact of the Indian Reorganization Act on the Governmental Func-
tions of the Pueblo of Laguna.
STEVE WALL: Chippewa, Attorney, Instructor at Fort Lewis Col-
lege-Field Study of Distinctions Between IRA and Non-IRA
Tribal/BIA Relationship-Blackfeet Tribe, Navajo Tribe.
JAMES WEST: Southern Cheyenne-Field Reports on Laguna
Pueblo, Seneca Nation, Northern Cheyenne, Cheyenne-Arapaho
Tribes of Oklahoma.
The Task Force wishes to express special thanks to Carole Roop,
for her many long hours of dedicated work for the Task Force.
















CONTENTS

Page
Tribute to former task force chairman------------------------------ xx
Introduction --------------------------------------------1------- 1
Chapter I: Relationship between Indian Tribes and the Prime Agent for
the Trust-The Department of the Interior------------------------- 13
Chapter II: Tribes as Governments-problems in the exercise of self-gov-
erning authorities--------------------------------------------- 27
Chapter III: Federal responsibility to provide support for the functions
of Tribal Government----------------------------------------- 42
Chapter IV: Status of Tribal Government and Federal domestic assistance
programs ----------------------------------------------------55
Chapter V: Land consolidation and acquisition------------------------ 77
Chapter VI: Special problems of small tribes------------------------- 83
Chapter VII: Tribal Government Task Force Analysis of Tribal Govern-
ment Accountability------------------------------------------- 91

APPENDICES
I. Index to Tribal Government task force report------------------- 99
II. Historical summary of Federal policy regarding the independent
status of Indian Tribal Governments----------------------- 137
III. A case study of land management and land use planning on the
Quinault Indian Reservation--- -------------------------- 145
IV. Coal Development v. Crow and Northern Cheyenne Tribes8------- 161
V. Federal authorities supporting tribal power over nontrust lands
within reservation boundaries----------------------------- 197
VI. Field study of distinction between IRA and non-IRA tribal-BIA
relationship -------------------------------------------199
VII. Legal analysis of Indian Reorganization Act------------------- 207
VIII. Analysis of administrative discretion of Secretary of the Interior
regarding delegated authority over Indian tribal trust resources
and income------------------------------------------- 219
IX. Impact of the Indian Reorganization Act on the governmental
functions of the Pueblo of Laguna------------------------- 223
X. Issues in mutuality-the existing relationship between State and
tribal courts------------------------------------------ 227
XI. Gila River Indian Tribal Court system case study--------------- 271
XII. Lower Brule Sioux Tribal Court system case study-------------- 279
XIII. Full faith and credit between State and tribal courts----------- 285
XIV. Taxation powers of Tribal Governments-summary of supporting
legal authorities--------------------------------------- 307
XV. Oglala Sioux tribal taxation system case study---------------- 315
XVI. Bureau of Indian Affairs support for the functions of tribal gov-
ernment-case study of Pine Ridge Reservation-------------- 335
XVII. BTA Tribes Analysis of Population------------------------- 357
XVIII. Tribal Government task field consultant reports---------------- 359
XIX. Tribal Government task force surveys of Tribal Government-- ----361
XX. Speech delivered by Mr. Wilbur Atcitty-Tribal Government task
force chairman-before the 39th Annual Convention of the Na-
tional Congress of American Indians, Nov. 14, 1975----------- 363
































































. .. ........ ..........












TRIBUTE TO FORMER TASK FORCE CHAIRMAN


Attached to the final report of the Tribal Government Task Force
is the text of a speech delivered by the late Mr. Wilbur Atcitty.*
Mr. Atcitty, a Navajo, and Executive Administrator of the Navajo
Tribe for the past several years, served as Chairman of the Tribal
Government Task Force until May 6th of this year, when he died in
an automobile accident on the Navajo Reservation.
During his tenure as Chairman of the Tribal Government Task
Force, Mr. Atcitty made a truly significant contribution to the devel-
opment of Indian affairs in the leadership and direction which he pro-
vided to the work of the Tribal Government Task Force. Throughout
his service with the Task Force, Mr. Atcitty exhibited a dedicated
and committed state of mind, and spurred us on to attempt to make
the best of this opportunity to exert a positive, long-lasting influence
on the direction of Federal-Indian policy towards tribal governments.
Being an official of the Navajo Tribe, Mr. Atcitty could have taken a
limited view towards the question of Federal-tribal governmental
relations, and could have attempted to influence the Task Force to
pursue the particular objectives of the Navajo Tribe. However, as re-
flected in his speech, at no time did Mr. Ateitty adopt such a narrow
approach, but rather, his concern was always for the total national
Indian community. He advocated unity among the tribes, and a se-
riousness of purpose, which if adopted by tribal leaders throughout the
country, would speak well for the future development of Indian tribal
governments.
His speech, which was delivered -t the 39th Annual Convention of
the National Congress of American Indians on November 14, 1975,
captures the essence of Mr. Atcitty's philosophy and views.
*Appendix XX.
(XI)




. .. ... ... ..........................













INTRODUCTION


The Tribal Government Task Force is pleased to present its final
report to the Commissioners of the American Indian Policy Review
Commission and to the Congress. The report summarizes our research
findings and identifies recommendations for change in Federal law
and policy which, if implemented, will protect and strengthen the
most basic of all Indian tribal rights, the right of self-government, ac-
cording to the unique cultural and community values of each individ-
ual tribe.
At the outset, the task force wishes to emphasize the political-legal
definition of Indian tribes and nations as sovereign entities. The most
far-reaching consideration and problem identified throughout our
efforts over the past year concerns the recognition of the status of
these sovereign entities as governments in their relationship with the
U.S. Government. This most fundamental issue of Federal law
and policy cuts across all aspects of the Federal-Indian relation-
ship and is the key to the resolution of the most serious problems,
conflicts and inconsistencies in Federal law and policy confronting all
Indian Tribal Governments.
The Tribal Government task force approached its task in a most
direct manner. We set out to ask as many tribes to identify problems
in their relationship with the Federal Government. We identified
the various types of tribes and the variety of situations confronting
tribal governments in an effort to insure that we received extensive
input from all representative sectors of the Indian tribal community.
We sent surveys1 out to every federally recognized Indian tribe and
followed up those surveys with visits by task force members and/or
field consultants to approximately 30 selected tribes to insure that
we reached a comprehensive representation of tribal views. In addi-
tion, the task force scheduled a series of regional meetings with tribal
government leaders in every area of the country, conducting one- or
two-day sessions with each group to insure that we acquired a regional
perspective on tribal government problems.3 Finally, the task force
participated in a number of task force hearings 4 in coordination
with the jurisdiction, Federal Administration, and trust responsi-
bility task forces. A more detailed description of our task force
efforts to obtain tribal views in the most direct manner possible can
be found in the collected reports5 submitted by the task force to the
Commission over the past year.
I Appendix XIX : Tribal Government Surveys.
Appendix XVIII: Field Consultant Reports.
SRoundtable discussions were conducted with tribal leaders from: North and South
Dakota, Washington, Wisconsin and Arizona.
S The Task Force participated in hearings held In San Marcos. California; Aberdeen,
South Dakota; Missoula, Montana; Oklahoma City and Muskogee, Oklahoma; and Phoenix,
Arizona.
Exhibit 1 ; Task Forces First, Second and Third Quarterly Reports.
(1)








Once an initial determination was made of tlhe range and nature of
Tribal Governmental problems, the task force members, staff and con-
sultants engaged in the more traditional, academic and legal research
In define parameters of these problems in relation to existing federal
statutes, regulations and court decisions. Legal memoranda and re-
ports resulting from this aspect of our task force research forms an
integral part of the task force final report; however, primary reli-
anice has been placed upon the views expressed and communicated to
the task force by Tribal Governmental leaders and individual tribal
members. They have defined the nature, scope and extent of their
problems.
From among the range of issues and problems presented in all task
force research efforts, we have identified six broad subject areas
around which the final report is structured. Each chapter of this
report treats an individual subject area and analyzes from different
per5!)ectives the continuing issue of whether or not Indian Tribal Gov-
ernments are indeed true governments as defined by existing Federal
law and policy.
The categories which form the substance of the task force final
report are as follows:
I. INIANN" TIIBAT. G nOVERNMENTS .\ND TiE- DEPARTMENT OF INTERIOR
This chapter analyzes the relationship between Indian Tribal Gov-
ernm.nts and the prime trust agency of the Federal Government, the
Interior Department and its subagency, the Bureau of Indian Affairs.
Existing Federal law and policy, insofar as it defines the nature of the
relationship between the Secretary of the Interior and his officials and
individual Indian Tribal Governments, is a serious of related problems
from the perspective of those responsible for Indian Tribal Govern-
ments. Essentially, these problems boil down to the proposition that
on one hand, the Interior Department and BIA officials are not doing
their job in protecting the trust status of Indian tribes,6 and on the
other hand. Federal 1,w and policy continues to support a supervisory
role on the part of Federal officials which is in conflict with policy
recogonizin Indian tribes as independent self-crovrnincr political en-
tities within the Federal system. In other words. Tribal Governments
,re simply not true governments if the Secretary of Interior and his
aRTent continue to possess and exercise authority to veto virtually all
forms of tribal .rrovprnmental action. This chapter of the report will
go into the detailed statutes, regulations, court decisions and Solici-
tor's oninions which have been interpreted to support this continuing
supiervisory authority on the part, of the Interior Department, and
will recommend appropriate chanw-es consistent with the maintenance
of the trust, responsibility by the Federal Government.
II. I-ND)T.AN TRTRE; As, GnT .,.RNMF-NT--PROBLEMSR TX Tn E EXERCISE OPF
SELF-GOVE.RNING AJTUTORrTES
This chlapter of the report analyzes the nature and extent of gov-
ernnmntnl roqpon-iblility obsessedd bv Indian tribes and identifies stat-
Aitory ota',.le. to the efficient and logical exercise of self-governing
Appendix I; Chapters I and III.








powers by tribal governments presently existing in Federal law and
policy. Task force recommendations in this chapter are designed to
insure that a Federal policy recognizing the true right of self-govern-
ment is not contradicted by statutes, which either in express terms, or
which are susceptible to such an interpretation, would in effect place
logical limitations on the authority of Indian tribes to exercise the
powers of self-government.

III. RESPONSIBILITY To PROVIDE SUPPORT FOR THE FUNCTIONS OF
TRIBAL GOVERNMENT
Throughout its year of study, the task force found that perhaps
the most basic reason why Indian Tribal Governments are not func-
tioning at a level of maximum effectiveness is simply that Indian tribes
do not have adequate resources to support the operations of Tribal Gov-
ernment. The task force has identified various areas in which Tribal
Governments need Federal support if they are to develop the capacity
to effectively meet the needs of the tribal community. This chapter of
the report documents the findings of the task force, pointing to the
specific needs which tribes have expressed, for resources and technical
assistance to support the basic functions of government. This chapter
also analyzes existing mechanisms in Federal law that are available to
channel such support. Recommendations are primarily addressed to
these existing mechanisms, identifying ways in which they can and
should be improved to more effectively deliver needed resources and
services to tribal governments.
IV. STATUS OF TRIBAL GOVERNMENTS AND FEDERAL DOMESTIC ASSIST-
ANCE PROGRAMS
The report examines the variety of domestic assistance programs
administered by the various Federal agencies and identifies the prob-
lems in eligibility, delivery systems, and program requirements which
in one way or another, constitute significant ongoing obstacles to full
tribal participation. In addition, this chapter of the report identifies a
number of domestic assistance programs in which tribal participation
is subject to state approval and state administrative requirements
beyond that which is expressly conferred by Congress in the statutes
analyzed by the task force.
The above four chapters describe from differing perspectives, the
relationship of Indian tribes to the Federal Government. The task
force feels that it cannot emphasize strongly enough the conviction
that Indian tribes ought to be uniformly treated under Federal law
and policy as independent political units within the federal system.
From the earliest days of this country, before the founding of the
United States as a government, Indian tribes were recognized as hav-
ing rights of inherent sovereignty. Although the potential to exercise
international sovereignty was clearly limited when the U.S. Govern-
ment was established, internal sovereignty or the right of self-govern-
ment has never been limited or abrogated under Federal law and
policy. Except for the dark days of termination, the U.S. Govern-
ment has consistently recognized the rights of self-government
on the part of the Indian tribes. This has been the operating principle
of the Federal-Indian relationship. However, serious inconsistencies








and even conflicts with this basic Federal policy continue to exist and
have gone unaddressed by the Congress for too long. Indeed, this
lack of addressing formed the basic rationale behind congressional
creation of the American Indian Policy Review Commission. The task
force recommends that the Commission and the Congress reaffirm the
Federal commitment to respect the right of Indian tribal self-govern-
ment bv correcting these inconsistencies and conflicts in Federal law
and policy in order that Indian tribes may truly be treated as inde-
pendent governments.

V. LAND COSOLIDATION AND ACQUISITION
While Federal law and practices which seriously impede the exer-
cise of the right of self-government have been uniformly identified
as problems of the highest priority by Indian tribal leaders, questions
of land consolidation and acquisition have also been considered of the
most critical significance. Throughout our history, Indians have ex-
perienced that without a land base. their chances for survival as a
unique tribal entity are, at best, slim. Consequently, in response to
tribal expressions concerning the priority to which they attach the
problems of land consolidation and acquisition, the task force ad-
dressed the -isue in a separate chapter of its report. This section docu-
ments the nature of the problem as perceived by Indian tribal leaders,
and addresses the direction to which the Congress must look in order
to define workable solutions. Perhaps the most difficult problem within
this category concerns that of fractionated heirship interests in Indian
trust allotments. For many years, the heirship problem has been rec-
oInized by the Congress, and over the past twenty years, nine legisla-
tive proposals have been submitted; however, none have ever become
law.
VI. SPECIAL PROBLEMS OF SMALL TRIBES
The majority of Indian tribes can be classified as small tribes, in
that 82.9 percent of all federally recognized tribes have populations
of less than 1.000 members.7 Based on this statistic, the task force
felt that it was of critical importance to identify a series of tribal gov-
ernmental problems which are unique to the smaller tribes, and which
deserve special attention by the Commission and the Congress.
A number of Federal programs, including the Self-Determination
Act Grants Program,8 use a population formula in the distribution of
funds to tribes. Such formulas have no relation to tribal needs and
clearly work to the disadvantage of the greatest number of tribes.
Alasika
In April and May of this year, a joint task force field visit to
Alaska was undertaken to determine the impact of the Alaska Native
Claims Settlement Act on Alaskan natives. In fourteen days of field
work, discussions were held with: (1) Ten native villages and village
corporations; (2) four regional corporations; and (3) many other
Appendix XVII.
8 Section 104 (a) of the Self-Determination Act.
Task Forces on Tribal Government; Federal, State and Tribal Jurisdiction; and Eco-
nomic Development.








Alaska Native organizations. Because of the uniqueness of the relation-
ship of the Federal Government to Alaska Natives, the task forces
decided a special, joint task force report on Alaska would be appro-
priate. This report is being submitted under separate cover and is in-
corported into each of the three task forces' final reports.
Historical Documentation of the Status of Indian Tribal Governments
The task force recognizes the current national controversy sur-
rounding the exercise of tribal government jurisdiction over non-
members and over nontribal lands within thle boundaries of Indian
reservations. Various news articles have appeared, from time to time
over the past year in the national media, describing the efforts by
various groups of non-Indian individuals, who reside on or near
Indian reservations in the Western States, to organize a national pres-
sure group for the express purpose of securing legislation by Congress
to abrogate tribal governmental authority over them.10 Conscious of
this trend in public opinion, the task force commissioned a brief
historical documentation of Federal policy to demonstrate the degree
to which the right of self-government on the part of Indian tribes has
been embedded fundamentally in Federal policy since the founding of
this republic.1' In its first definitive statement on the question of
Federal-Indian relations, in the landmark case of Worcester v.
Georgia,1" the U.S. Supreme Court articulated the most basic theory
of Federal-Indian law-that Indian tribes are "distinct, independent
political communities possessing and exercising powers of self-govern-
ment derived solely from their original sovereignty." This enduring
principle has never been overruled by congressional statute or Federal
court decision, and as recently as June 14, 1976, was reaffirmed by the
U.S. Supreme Court in the case of Bryan v. Itasca County, Minnesota,
striking down an attempted exercise of taxing power by the state.13
The renowned Felix Cohen, in his authoritative treatise, "Handbook
of Federal Indian Law," has also articulated this basic principle in
the following words:
"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, in the first instance, all powers of any
sovereign state. (2) Conquest renders the tribe subject to the legisla-
tive power of the United States and, in substance, terminates the
external powers of sovereignty of the tribe, e.g., its power to enter into
treaties with foreign nations, but does not by itself affect the internal
sovereignty of the tribe, e.g., 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 of internal sovereignty are vested in the Indian tribes and in
their duly constituted organs of government." 14
'-1Exhibit 2; "Indian Backlash Group Outlines State Concern"., Rapid City Journal;
''Non-Indian Rights Claimed". Salt Lake City; See also Letter from Florence DeWar to
Congressman Lloyd Meeds, February 23. 1976; and Memorandum from Suquamish Com-
munity Club to Senator James Abourezk, February 1976.
o Appendix II; Historical Summary of Federal Policy Regarding the Independent Status
of Indian Tribal Government.
=31 U.s. (6 Pet) 515 (1832).
2 No. 75-5027. SlIp op., June 14, 1976.
u Cohen, Felix; "Handbook of Federal Indian Law" (Reprinted University of New
Mexico Press).


77-465---77-2








"e(l for licafirmination of eongri'cssional commrnitment to the right of
tribal self-goveyrnment
The task force lhas concluded that a restatement and clarification
of thi basic principle of Federal-Indian policy is called for on the
piart of Congress. Such, a restatement would effectively supersede
existing inconsistencies in other areas of Federal law, such as eligi-
hilitv standards which have excluded Indian tribes from participation
in F-ederal domestic assistance programs. It may be assumed that
Congress and its myriad of congressional committees, established to
deal in a comprehensive manner with the entire scope of the Federal
responsibility, have not always been aware of the political status of
Indian tribes nor have they been aware of the political status of
of Federal policy which should dictate all aspects of the Federal-
Indian relationship. An illustration of this lack of awareness on the
part of Congress is found in the provisions of the Law Enforcement
Assistance Administration (LEAA) programs which require Indian
tribes to go through the State governments as a condition of participa-
tion in the LEAA grant programs. If the House and Senate com-
mittees responsible. for originating this program had been fully cog-
nizant of the guiding Federal policy towards Indian Tribal Govern-
nent:s. it can be awumPd that Indian tribes would accordingly have
b-e en defined as eligible for direct Federal funding from Law Enforce-
ment Assistance Administrntion programs. Since an integral aspect
of tie Federal policy towards Indian tribes is the guarantee of inde-
pendence from State jurisdiction and authority, it would accordingly
follow that tribal participation in Federal domestic assistance pro-
grams would not be in any way conditioned upon state approval of
tribal plans or rant applications.
However, because the Indian population comprises only a miniscule
percenrtage of the total population in this country, Indian concerns do
not loom War2e on the political horizons of Congress. Consequently, a
rreat deal of Federal domestic assistance program legislation was no
doubt enacted without any conscious attention to the role of Indian
tribal zoverni-ments within the delivery system. The Tribal Govern-
ment Task Force believes that the final report of the American Indian
Policy Review Commission will be a positive step towards correcting
this lack of congressional awareness.
Effet of prior termi-n.ation poli. onIndian tribal views
The brief indulgence by Congress in the termination policy of the
early 10950's has permanently affected the outlook and mentality of
tribal leaders across the country. The task force became very aware
of this in discussing tribal views on contracting, under development by
the Interior Department and Indian Health Service of the Depart-
ment of Health. Education and Welfare pursuant to the recently
enac-ted Indian, Self-Determination and Education Assistance Act.
It is a widely shared opinion in Indian country that contracting
may eventually lead to a termination of the Federal trust responsi-
bilitv. Indian leaders believe that if they successfully contract as many
available programs presently being provided by the Department of
Interior and the department of IHealth. Education and Welfare, Con-
gress will view this as sufficient proof that there is no longer need for
a special Federal-Indian relationship, nor tribal dependence on Fed-
eral services.








While the Declaration of Policy to the Indian Self-Determination
Act expressly disclaimns any intention on the part of Congress to use
this act to affect or in any way diminish the Federal trust responsi-
bility recognized by Congress, this disclaimer does not convince Indian
people that this congressional intent will be ongoing. It is their under-
standing that each session of Congress is not bound by the policies set
and defined by the previous congressional session.
Tribal leaders are also fearful that once tribes enter into contracts
for the administration of authorized Federal programs pursuant to
the Indian Self-Determination Act, Congress will simply cease to
appropriate monies to fulfill the contracts, resulting in "backdoor"
termination. It is very difficult to convince someone with this point of
view, that contracting is only an optional device to allow tribes to
participate in the delivery of services to their members, and constitutes
an opportunity for tribes to build up their own capabilities and
internal expertise.
However, tribal concerns are well-grounded in two important facts:
(1) The Congress does not consider itself bound by prior legislation
in the same manner that courts are bound by the theory of stare decisis
or precedent. The Congress is free to determine what should or should
not be the law, within the constraints of the Constitution, and as a
matter of fact, succeeding sessions of Congress may very well decide
to completely repudiate a policy vigorously affirmed by the preceding
Congressional session. (2) As a matter of Federal Indian law, Con-
gress clearly has the power to terminate the trust relationship. In
act, with the passage of the Alaska Native Claims Settlement Act of
1971,15 Congress once again exercised this power by expressly revoking
all reservations in Alaska with the exception of the Annette Island
Reserve."
Termination is presently being urged by non-Indian pressure groups
and State officials on bills such as the Indian Law Enforcement Im-
provement Act of 1975 (S. 2010), the proposed amendment to Public
Law 83-280. Examination of recent testimony submitted on S. 2010,
bv witnesses for States, counties, and State agencies will underscore
the point adequately.17 Tribal fears of the possibility of termination
in new Federal legislation are not completely ill-founded.
.Analysis of the plenary nature of congressional. authority over
Indian tribe.
Supreme Court cases have clearly stated that in the area of Federal-
Indian relationships, the authority of Congress is plenary, or without
-congressional constraints. This judicial analysis of congressional
power over Indian tribes was derived from the late 19th century, when
'Congress passed legislation abrogating treaties previously negotiated
with the Indian tribes. Tribes had filed suit against the Federal Gov-
ernment on the theory that treaties were equal to the Constitution, and
-therefore, could not be abrogated simply by an act of Congress. The
Supreme Court eventually concluded that treaties were analogous
-to statutes, and in effect, could be overruled by a later statute within
the general restraints of the Constitution. The Constitution, in and
of itself, does not define any limits to the power of Congress over
Indian affairs, but rather, contains only a general affirmation of con-
SPublic Law 93-203, 85 Stat. 688.
"Section 19(a).
Hearings Before the Subcommittee ou Indian Affairs on S. 2010, Part II. May 4-5.
1976.








gressional power to regulate commerce with Indian tribes and enter
into treaties with Indian tribes. In the absence of constitutional limita-
tions, the courts have expressly concluded that the power of Congress
is plenary. Thus, Congress can abrogate treaties and terminate the
trust relationship with Indian tribes.18
Task force research indicates that under the existing analysis of
Federal Indian law, a Constitutional amendment is the only effective
approach to limiting the authority of Congress to terminate the trust
relationship.
Need for reaffirmation of tribal rights of self-government
It is the conclusion of the task force that there is a critical need for
a restatement and clarification of Federal-Indian policy regarding the
political and legal status of Indian Tribal Governments within the
federal system.
For example, if Congress were to limit tribal authority to tax non-
trust properties and income, the effect would not simply be a balancing
of tribal versus State interests over the right to potential income, but
rather, the partial termination of tribes, by restricting their ability
to function as total governments. This usurpation of tribal powers
weakens Tribal Governments to the point that they can no longer claim
to be independent political units as defined in Worcester and consist-
ently upheld by the Federal judicial system.
The logical conclusion of this argument is not that Indian tribal
interests should always outweigh conflicting State interests on a politi-
cal scale, but that thle Congress should keep faith with the tribes, by
acknowledging that it would be inconsistent to recognize Indian Tribal
Governments as legitimate, independent, autonomous political units,
and at the same time, impose limits on their authority to govern.
A congressional clarification of the political and legal status of
Indian Tribal Governments, establishing Federal policy, must be con-
sistently applied, and should be designed to provide the strongest
possible guarantee for future generations, of the status of Indian tribes
within the federal system.
Ongoing internal debate in Indian country concerning the proper
strategy to be pursued in the future
Based on tribal fears of termination, there is a continuing debate
which has occurred in Indian country for generations concerning the
proper strategy and proper role for the development of governments
of Indian tribes.
One belief held by Indian people is that the more tribes develop their
governments along the lines of the dominant society, and the more
their governments begin to actually resemble the white man's govern-
ment, the less chance they have of maintaining their cultural integrity
and traditional values. In part, this reasoning leads to the conclusion
that the Tribal Government should only be concerned with protecting
the traditional values and customs of the tribe, leaving all manners
of governmental concerns, such as delivery of services and extension of
jurisdictional authorities, to the trustee. It is felt that as long as the
tribe maintains itself as a unique cultural entity, it will survive and
will p.ss the Indian legacy on to future Indian generations.
28 See. Lonte Wolf v. Hitchcock, 187 U.S. 553 (1903) ; Cherokee Natimon v. Hitchcock, 18S
U.S. 294 (1902).








Tribal leaders perceive the 1968 Indian Civil Rights Act to be an
instrument .for such assimilation. The Indian Civil Rights Act re-
quires Indian Tribal Governments to observe certain civil rights pro-
tections in exercising their governmental authority which closely
parallel the language contained in the U.S. Constitution Bill of
Rights. There is strong sentiment in Indian Country that to the extent
that Indian tribes become more and more like their neighboring
political units, the likelihood increases that Congress will eventually
conclude that there is virtually no difference between an Indian Tribal
Government and a neighboring county, municipality or State govern-
ment, and thus, that there is no need for a special relationship between
the tribe and the Federal Government.19
Indeed, tribal governments who have adopted forms of government
closer to that of the dominant society have been more frequently
confronted with court decisions which direct increasingly stricter
adherence to U.S. Constitutional standards.20
On the other hand, the current Federal Indian policy of self-
determination encourages the development of strong and viable Tribal
Governments and greater participation in the design and delivery of
Federal programs. Many tribal leaders believe that they must take
advantage of this opportunity, and play a more active role in the
assertion of their tribal sovereignty rather than continuing to rely
solely on the Federal Government to protect and define tribal rights.
The more a tribe is equipped to aggressively assert its own recognized
rights, not only is it more capable of insuring that the Federal trustee
adequately performs his role in protecting tribal resources and sov-
ereignty, but the greater the chances for tribal survival.
And yet, the attempt by the Cherokees of resisting forced termina-
tion by developing sophisticated governments modeled after the white
man's government, was unsuccessful, as evidenced in a recent study
of the legal system of the Cherokee government conducted by Rennard
Strickland, a Cherokee lawyer. Practically all of the Oklahoma tribes
were well organized when they were removed to the Indian territory.
In hearings held before the Committee on Indian Affairs in 1935,
Oklahoma tribal governments of the late 19th century were described
as follows:
".. They maintained complete governments; particularly in the East, five
tribes areas; they had their own schools; their own legislative assemblies; their
own courts. And they did the job well. Under all the conditions they made a
record which would have been creditable to any municipality or State in the
country." '
Yet by successive acts of Congress, specifically the Curtis Act 22 and
tle Act of April 26, 1906,23 the five civilized tribes were stripped of
their governmental functions. Tribal courts were abolished and U.S.
courts established. Their chiefs were made subject to removal
by the President, who was authorized to fill by appointments the va-
cancies thus created. Tribal schools were suppressed, tribal taxes abol-
ished, the sale of tribal public lands was ordered. Finally, their legis-
lature was prohibited from remaining in session for more than 30
11 Appendix I, Chapter I. pp. 3-4.
0 See, Federal, State, and Tribal .Jurisdlction Task Force Report, Chap. 5 (see generally).
2 Hearings Before the Committee on Indian Affairs on S. 2047, Cong. lst Session, 1935,
p. 10.
Act of June 28, 1898, 30 Stat. 495.
2 34 Stat 137.









davs in any one year, and every legislative act or ordinance was de-
clared invalid unless it received the approval of the President.
The proponents of termination used the highly developed state of
the Cherokees and the other civilized tribes as proof that these tribes
were capable of managing their own affairs, and thus, there was no
need for the continuation of the Federal-Indian relationship.24
The task force has recently become aware of yet another cause for
the Indian fear of assimilation and eventual termination, known as
the Borustrom Memo. Labelled "Confidential." this internal
memo was written by a Mr. Harold Borgstrom from the Office of
Management and Budget to another official within the agency. The
task force has been informed that the memo has been widely circu-
lated in Washington, D.C. and has in fact, been reprinted in several
Indian newspapers. A copy of one such news article is included in the
exhibit 3 of this report for reference of the Commission and the
Congress.25
The memo contains a recommendation that the Federal policy be
designed to terminate the trust responsibility of the Federal Govern-
ment towards Indian tribes. The memo discusses two distinct ap-
proaches to the proposed termination. One approach calls for a grad-
ual cessation of service responsibilities, by bringing the social
conditions of tribes up to a par with the dominant society. The other
approach would involve a step-by-step withdrawal of the Federal
Government from the Federal-Indian relationship.
It is difficult for the task force te determine exactly how this memo
should be evaluated. Certainly, it could be judged as simply an internal
discussion paper between two bureaucrats within the Office of Man-
agement and Budget. and as such, a far cry from official government
policy. On the other hand, there is a definite possibility that the poli-
cies discussed in the internal memorandum reflect a school of thought
widely held in the Office of Management and Budget (0MB). It is
not unreasonable to conclude that 0MB is searching for a policy ap-
proach which would justify the Federal Government's extrication
from the Federal-Indian relationship.
The task force has concluded that it is not the role of the task
force to directly address the proposed policies of the Office of Man-
agement and Budget. on the premise that this one bit of evidence may
indicate an entrenched position held bv that particular Federal office.
However, viewed in the context of the continuing debate discussed
above concerning the direction that tribal governments should take
for the future (retrenchment versus development), and continuing
concern over the advisability of contracting for federal services, it is
clear that the Borgstrom memo cannot help but have a distinct influ-
ence. To this extent, the task force finds it appropriate to bring this
memorandum to the attention of the Commission and the Congress.
More than ever, there needs to be a clarification of Federal policy
which expressly denies any intent of assimilation, or more impor-
tantly, the termination of the Federal-Indian relationship.
"See, Strickland. R. : "The Fire and the Spirits." University of Oklahoma Press (1975).
n Exhibit 3; "The Borgstrom Memo." Confederated Umattilla Journal, July 1976.




























CHAPTER I
RELATIONSHIP BETWEEN INDIAN TRIBES AND
THE PRIME AGENT FOR THE TRUST-
THE DEPARTMENT OF THE INTERIOR




............ ..........












Chapter I


RELATIONSHIP BETWEEN INDIAN TRIBES AND THE
PRIME AGENT FOR THE TRUST-THE DEPARTMENT
OF THE INTERIOR
An understanding of the relationship between Indian tribes and
the Bureau of Indian Affairs, which functions as the prime agent for
the Federal trust responsibility, is essential to an understanding of
Indian affairs. The Task Force on Tribal Government is aware that at
least two other task forces will be scrutinizing aspects of this rela-
tionship. The Task Force on Trust Responsibility and Treaty Review
undoubtedly will be examining the relationship to determine what
changes should be recommended in Federal law and policy as applied
to the nature of the trust relationship. The Task Force on Federal
Administration also has the responsibility to examine this relationship
from the perspective of structural problems in the administration of
the Federal responsibility towards Indian tribes. The Task Force on
Tribal Government's distinct perspective has been to look at this rela-
tionship from the viewpoint of the Tribal Government itself in order
to identify problems and arrive at recommendations for change.
While Chapter III of this report discusses task force findings in
the area of delivery of services by the Bureau of Indian Affairs to
tribal governments and, in particular, Bureau actions taken to imple-
ment grant provisions of the Indian Self-Determination Act of 1975,
this chapter will focus on the relationship between the BIA and the
tribes as governments.
Historically, the paternalistic authority that was exercised in the
past by BIA officials over the tribal government is well documented.'
Relying upon the "guardian-ward theory", Federal officials have
exercised heavy-handed control over Indian tribes and in effect super-
vised the day-to-day operations of government in a manner that can
be accurately compared to a colonialistic system.2
Present status of BIA-Tribal Government relationship
The past twenty years have seen a gradual evolution in this rela-
tioniship although significant remnants of BIA control over Indian
Tribal Governments remain and will be addressed in some detail in
this section. In general, however, the BIA has been evolving into a
service agency with Indian tribes, assuming more and more control
and direction for the remaining service functions it performs. The
task force found wide variations in the relationship between tribes
and the BIA, with some tribes assuming a more assertive role3 in
I "The Problem of Indian Administration," edited by Lewis Meriam (Baltimore: John
Hopkins Press, 1928).
SCahn, E. : "Our Brother's Keeper: The Indian in White America," World Publishing
Co. (1970) ; Cohen, F.: "Erosion of Indian Rights 1950-1953; A Case Study in Bureauc-
racy," 62 Yale L.J. 348 (1953).
'Appendix I; Chapter 1 (generally).
(13)






14


influencing the relationship, with the result that the BIA functions
almost as an integral part of the tribal governing system. However,
a significant number of tribes still rely on BIA officials to assume total
responsibility for such basic functions as law enforcement, judicial
services, education and other various social welfare programs.4 In
some instances, the BIA exercises total responsibility for land use
control and management of natural resource development on the
reservation.
The consensus of tribal opinion, as identified by the task force, is
that there is need for change in Federal law and policy defining the
relationship between the BIA and the Tribal Government. By and
large, Indian tribal leaders are very aware of the fact that existing
Federal law provides for an overly broad range of authority on the
part of BIA officials over tribal governments. The task force received
testimony calling for a change in the law which would define clear
limits to the Interior Department and BIA officials' authority to
supervise, disapprove or veto tribal governmental actions.5
The practical nature of problems resulting from this residue of
BIA authority over tribes was not difficult to document.6 In recent
times, the pattern has been that BIA and Interior Department officials
have not exerted the power over tribes that they could exercise pri-
marily because of the tribe's increasing level of political sophistica-
tion. For example, authority exists in title 25 of the United States Code
for the Secretary of Interior to condemn tribal lands of non-IRA 7
tribes without tribal consent for the purposes of establishing rights-of-
way for road construction, power lines, etc. However, as a practical
matter, it is rare to find the BIA exercising this authority. Yet, the fact
that the law remains on the books, and that tribes do not have the
authority to stop such a condemnation action, disturbs many tribal
leaders who would unquestionably support a move to limit such au-
thority by appropriate change in the law.
Source of BIA authority over Tribal Governm.ents
In general, BIA authority over tribal governmental actions springs
from two separate sources. Clearly, the trust responsibility of the Fed-
eral Government. as exercised by BIA officials, requires that they have
authority to control the use, management and disposition of tribal
trust resources or income from trust resources. The theory for this
source of authority is not viewed as objectionable by the tribes. They
recognize that under the law, one simply cannot be a trustee and at
the same time have no control over the corpus of the trust. If Indian
Tribal Governments were to be recognized as possessing ultimate con-
trol over the use and disposition of tribal trust resources, then under
the law, there is no way that the Federal Government could be held
responsible. In effect, this would imply a termination of the trust
responsibility.
The other source of authority for BIA control over the actions of
Tribal Governments can be found in tribal constitutions wherein
Appendix I; Chapter 2 (generally).
$ Appendix I: Chapter 1, pp. 1-3.
6 Note 5 Supra.
Indian Reorganization Act (Wheeler Howard Aet of 1934).








Indian tribes themselves have conferred authority on the Secretary of
the Interior to approve or disapprove a wide variety of tribal govern-
mental actions. As part of its research efforts, the task force reviewed
all available copies of tribal constitutions and found that a majority of
these documents define or grant authority to the Secretary of the
Interior to review or approve various exercises of tribal governmental
authority.
The reason so many Indian tribes conferred this authority to the
Secretary of the Interior is due to a unique set of historical circum-
stances. Relatively few Indian tribes functioned on the basis of written
constitutions or parallel documents at the time that the Indian Re-
organization Act was enacted by the Congress. The great majority of
Indian tribes simply were not constituted or organized along the lines
of a representative constitutional democracy which was the model
spelled out in section 16 of the Indian Reorganization Act.8 A great
many Indian tribes drafted and adopted written constitutions in the
decade following enactment of the IRA, and in nearly every case, they
were advised extensively by Interior Department officials in the draft-
ing of such documents. In fact, Interior Department officials had
drafted a model or "form" constitution which contained the language
granting authority to the Secretary of the Interior to approve or dis-
approve a wide variety of tribal governmental actions. Sometimes
with only slight variations or modifications, this "form" constitution
was adopted by the great majority of Indian tribes. In fact, today a
great many tribes still retain the model IRA constitution and several
generations of tribal leaders have served in tribal governments orga-
nized and structured along the lines of this model constitution. By far,
the great majority of Indian tribes who function under variation of
the IRA model are very aware of its deficiencies and are in the process
of modifying or amending their constitution.'
BIA or Interior Department authority over the actions of Indian
Tribal Governments grounded upon provisions found in tribal consti-
tutions must be viewed as a matter which concerns the individual tribe
and is not an issue of Federal policy. Even though the Interior Depart-
ment officials were responsible for drafting the model IRA constitution
and for encouraging tribes to adopt constitutions which contained the
"boilerplate" provision granting authority to the Secretary of Interior,
it is clear that the tribes are not required under Federal law to submit
their governments to this broad range of supervisory control. In recent
times, a significant number of Indian tribes have amended their con-
stitutions to delete completely any requirement that the tribal govern-
ment submit any form of tribal action to the Secretary of Interior for
his review and approval. Consequently, today it remains a matter of
tribal initiative whether to allow for Secretarial review and approval
of tribal action through their constitution or change their law to be
completely free of such tribally-conferred Federal supervision.10
'25 U.S.C. Section 476.
Appendix I: Chapter 2. pp. 7 and 14.
10 A potential obstacle to amending tribal constitutions Is that nearly all IRA and
non-IRA constitutions drafted with BIA supervision, contain a provision requiring Secre-
tarial approval of tribal resolutions or ordinances.






16


Problems in the nature of secretarial authority over Indian tribes
related to the trust responsibility
Independent of tribal constitutions or other documents defining the
relationship between the tribal government and the BIA and Interior
Department. a number of provisions remain in title 25 of the United
States Code which ive the Secretary of Interior authority over tribal
actions over and above what may logically be required by the trust
responsibility." Attached to this section of the report is a research
memoranda which was commissioned by the task force and which
analyzes in detail existing law and regulations pertaining to the rela-
tionship between the Tribal Government and Department of Interior
officials.12 Based on the analysis of our research, the task force has con-
cluded that the best approach is to distinguish between sources of Inte-
rior Department authority over tribal governments which are founded
or grounded in the trust responsibility, and sources of authority over
tribal governments wlich are not grounded in such responsibility.
Based on this distinction, the task force is recommending that exist-
inz law be changed to clearly limit Secretarial authority over actions
of Tribal Governments to those instances wherein the trust responsibil-
ity is directly involved. Essentially, this means that the Federal policy
ought to be based on a recognition of what is required by the trust
responsibility and what is consistent with a recognition of the rights
of self-government on the part of Indian tribes.
Need to supervise Indian tribes is justification for BIA authority
In the past, Federal policy was based on a desire to continue to
supervise tribal governments.13 The rationale for this supervisory
responsibility was articulated by BIA Commissioner John Collier in
testimony to the Congress in hearings on the proposed Indian Reorga-
nization Act.14 At that time, federal officials believed that Indian tribes
were relatively uneducated in the process of operating constitutional
forms of government, and that therefore, the role of the Federal official
would be that of an educator. At the same time. Federal officials were
aware that the Supreme Court had concluded that Indian Tribal Gov-
ernments were outside the scope of the U.S. Constitution.15 Conse-
quently, there was some sense that continuing authority on the part of
the Interior Department officials was justified, to insure that Indian
Tribal Governments did not engage in practices or exercise their au-
thority in ways which would be repugnant to basic principles found in
Lhe Bill of Rights of the U.S. Constitution. Since the Federal courts had
concluded that there was no basis under the law for judicial review of
tribal government actions contrary to the standards set out in the U.S.
Constitution, some justification was seen for administrative officials to
have authority over Indian Tribal Governments, to insure that they did
not stray too far from the path of democracy as spelled out in the
Constitution and as required of Federal and State governments.
"For example. see 25 U.S.C. Section Si (Contracts with Indian tribes or Indians) ;
and 25 U.S.C. Section 2r2 (Persons permitted to trade with Indians).
Appendix VII; Legal Analysis of Indian Reorganization Act.
Note 1 Supra.
14 Hearings on S. 2755 and S. 3645 Before the Senate Subcommittee on Indian Affairs,
73rd Concress. 2nd Sess. (1934).
1 Talton v. Mayes, 163 1U.S. 376 (1896).








Regardless of whether or not one may agree with this justification,
clearly, Secretarial authority was completely undercut when the Con-
gress enacted the 1968 Indian Civil Rights Act. That law requires
that Indian Tribal Governments observe the rules of due process and
equal protection in their exercise of self-governing powers. Federal
courts were given jurisdiction under the Indian Bill of Rights to review
the actions of Indian Tribal Governments and protect the rights of in-
dividuals who were within the authority of Indian tribes. Federal court
opinions interpreting the Indian Bill of Rights demonstrate that vir-
tually no form of tribal governmental action is beyond the scope of
Federal court review under the Indian Civil Rights Act.L1 Conse-
quently, there is no longer any room for a theory supporting a super-
visory role on the part of Federal administrative officials over Indian
tribes.
Amendment of Indian Reorganisation Act
The Tribal Government Task Force has determined that it is neces-
sary to amend the Indian Reorganization Act, in order to restrict the
authority of the Secretary of Interior over Tribal Governments to areas
directly related to his trust responsibility. In surveying the develop-
ment of the law insofar as it defines the political status of Indian tribal
governments, the task force concluded that the IRA has been the only
statement by the U.S. Congress directly addressing the question of the
status of Indian Tribal Governments." Historically, it is clear that the
prime rationale behind the Indian Reorganization Act was the desire
on the part of Congress to reverse the allotment policy which at that
time was the prevailing Federal policy towards Indian tribes.18 The
legislative history of the IRA demonstrates that Congress was clearly
convinced that the allotment policy was essentially a failure and that
the cumulative disastrous effect that the policy had had on Indian
tribes called for a drastic change. Not content with simply amending
various allotment statutes to bring an end to the allotment process.
Congress was also convinced at the time, that a more positive Federal
policy encouraging Indian tribes to develop their governments was
called for. Consequently, in addition to putting an end to the allotment
policy and extending the trust period on the remaining Indian and
tribal lands, Congress included Sections 16 and 17 of the Act, which ex-
pressly recognize the right of Indian tribes to organize their govern-
ments by adopting constitutions which, "shall also vest in any such
tribe or its tribal council 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 to negotiate with the Federal, State and local
governments."'19
The act prefaced this express recognition of the rights to be recog-
nized in Indian tribes with the following general savings clause: "In
addition to all powers vested in any Indian tribe or tribal council by
See. "Indian Civil Rights Act", Manual of Indian Law, American Indian Lawyer's
Training Program (June 1976).
f Appendix II: Historical Summary of Federal Policy Regarding the Independent Status
of Indian Tribal Governments.
SNote 13 Supra; and Appendix VII; Legal Analysis of Indian Reorganization Act.
Note 7 Supra.









existing law, the constitution adopted by said tribe shall also vest..." 20
Thus. Congress not only clearly conceded that existing law recognized
inherent powers vested in Indian tribes, but also affirmatively defined
certain rights which tribes could exercise pursuant to constitutions
adopted under the act.
Shortly after enactment of the law, the Solicitor for the Interior
Department wrote an opinion entitled "Powers of Indian Tribes,"
wherein he summarized the powers recognized in Indian tribes by
existing authorities.2' In effect, the opinion of the Solicitor pointed out
that there was a certain redundancy in the IRA. The redundancy lies
in the fact that existing Federal law recognized a plethora of powers
that Indian tribes could exercise. In fact, nearly every conceivable gov-
ernmental power necessary to maintain tribal existence as an inde-
pendent political entity had already been recognized by existing law
prior to enactment of the IRA. The only limitation on the powers of
Indian tribes under existing law was, and still is, an express limitation
by tho Congress. Indeed, among the powers recognized by existing law
on the part of Indian tribes was the power to create and define the na-
ture of the Tribal Government. That is, prior to the IRA, tribes were
already recognized as having the power to adopt constitutions and
by-laws if they should so choose.
IRA conferred authority on tribes to prevent sale of tribal lands by
the Federal Government
Upon analysis, it is clear that the most significant power vested in
Indian tribes pursuant to their adoption of an IRA constitution was
the power to "prevent the sale, disposition, lease, or encumbrance of
tribal lands, interest in lands, or other tribal assets without the consent
of the tribe." 22 Since existing law had recognized that Congress'
authority over Indian tribes was plenary, the Congress had authority
to pass a law calling for the sale, disposition, etc. of tribal lands and
the Congress would not have had to condition such sale or disposition
of tribal lands upon the consent of the tribe.23- Tribes who adopted
IRA constitutions (less than a majority of all federally recognized
Indian tribes) received a protection against unilateral action of the
Federal Government condemning their lands rather than an affirma-
tive grant of powers of self-government.
Federnahi-chidrfered corporation (25 USC 177) provision deemed
irrelevant
Section 17 of thp IRA authorized the tribes to establish federally
chartered corporations and was intended by Congress to establish a
device through which tribes could engage in economic activity. The
act also created a revolving loan fund which Indian tribes could
participate in, only if they established charter corporations pursuant
to section 17 of the act. The revolving loan fund has long since
gone out of existence, and statutes which have taken its place-
amon' which is the recently enacted Indian Financing Act24--do
2JNote 7 S-prn.
S .i.5 T.D. 14 (1934).
V"nt' 7 %inrn..
SFor riwhts-of-way and other purposes, the United States has authority to sell land
without tribal consent. See, 25 U.S.C. Section 311 et. seq., But see, 25 U.S.C. Section 324.
2. IU.S.C. Section 1451 et. seq.








not make tribal participation conditioned upon establishment of a
section 17 corporation. Recently, the Solicitor's office concluded in
an opinion that Indian tribes had authority to establish corpora-
tions to engage in all manners of economic activity independently of
the Indian Reorganization Act.25 Consequently, section 17 becomes
almost totally irrevelant, and the task force recommends deletion of
this law by the Congress with an appropriate savings clause for tribes
now under section 17 who may desire to continue reliance on their
section 17 chartered corporations.
Positive aspects of IRA should be retained and extended unilaterally
to all tribes
In our analysis, it seems clear that the IRA, other than in its
provisions which halted the allotment policy, is of limited significance.
The task force engaged in field research efforts to determine whether
there were any remaining practical differences between the relation-
ship of an IRA tribe to the Interior Department and the relationship
of a non-IRA tribe.26 The results of this research reinforced our feel-
ing that there is little practical significance to sections 16 and 17 of
the IRA. Our research revealed that there is practically no discernable
difference in the treatment or relationship of an IRA tribe and the
relationship of a non-IRA tribe to the Federal trustee. The attached
legal analysis of the IRA and related statutes further substantiate
this conclusion. In fact, what grows out of our research on the IRA
is that the provisions which ended the allotment policy, defined a
right of Indian preference, and provide for indefinite extension of the
trust status of tribal lands, are all extremely positive elements of the
Federal law. If the provision in section 16 which requires tribal
consent before the Federal Government attempts to sell, lease or
otherwise encumber tribal lands or interests was to be extended
unilaterally to all tribes rather than be conditioned upon tribal ac-
ceptance of IRA constitutions, the law would be totally acceptable.
Later in this chapter, we will specifically identify how this positive
change in the law can be accomplished.
Historical policy basis of IRA should be clarified
SThe legislative history of the IRA makes it clear that the Adminis-
tration, in introducing this law, definitely viewed it as a means of
eventual assimilation of Indian tribes into the dominant society.
Testimony by Administration witnesses and in particular former
Commissioner John Collier, clearly interpreted the intent of the law
as encouraging Indian tribes to adopt forms of government which are
close to that of the dominant society.28 They anticipated that Indian
tribes, upon becoming accustomed to living under governments which
were parallel to those of the Anglo society, would then gradually
cease to have any desire to live as separately-constituted societies.
Certainly, the act does not express this concept in so many words;
however, if one were to go to the legislative history to determine
what the intent of the law was, this policy would be on record. It goes
w Snileltnr's Opinion M-36781 (August 25, 1969).
S Note 11 Supra.
Note 25 Supra.
Note 13 Supra.






20


without saying that the task force views this policy as being com-
pletely in conflict with the policy described in the introductory state-
ment of the report-which would recognize a permanent right of
independent political autonomous existence on the part of Indian
tribes. Correction of such a deficiency in the IRA could be easily
accomplished by a redefined expression of Congressional policy in a
proposed amendment to the IRA. Because the IRA is the only ex-
press congressional pronouncement on the status of Indian Tribal
Government, such a policy statement clarifying the position of Con-
gress is called for.
The significance of the Indian Reorganization Act in the relation-
ship between Indian tribal governments and the Department of
Interior as the prime trustee is crucial to an understanding of the
nature of the problem that has been identified by the task force-
the problem being a continuing basis of authority in the law for the
Interior Department to supervise and, in effect, control Indian tribal
governments in their actions over and above the necessary control
which should accompany the trust responsibility.
Problems in the nature of the Secretary's discretionary authority over
tribes
At this point, we would like to take brief note of sections 2 and 81
of title 25 of the United States Code. In its entirety, section 2 of title
25 reads:
Duties of Commissioner.-The Commissioner of Indian Affairs shall, under
the direction of the Secretary of Interior, and agreeable to such regulations
as the President may prescribe, have the management of all Indian affairs and
of all matters arising out of Indian relationships.
In relevant part, section 81 of title 25 reads:
Contracts with Indian tribes or Indians.-No agreement shall be made by any
person with any Indian tribe of Indians, or individual Indians, not citizens of
the United States, for the payment or delivery of any money or other thing
of value, in present or in prospective, or for the granting or procuring any
privilege to him, or any other person in consideration of services for said Indians
relative to any claims growing out of, or in reference to, annuities, installments,
or other monies, claims, demands, or a thing, under laws or treaties with the
United States, or official acts of any officers thereof, or in any way connected
with or due from the United States, unless such contract or agreement be
executed and approved as follows: * second. It shall bear the approval
of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed
upon it.
Based on our research, the task force has focused primarily upon
these two sections within the Code which have consistently been inter-
preted as the basis of Secretarial authority over Indian tribes other
than in relation to his trust responsibility authority. Section 2 is a
simple and broad statement that the Commissioner of Indian Affairs
under the Secretary of Interior shall have the management of all
Indian affairs and of all matters arising out of Indian relations. In
a Solicitor's opinion written in the 1930's, the Interior Department
concluded that section 2, by and of itself, did not give any direct
authority to the Secretary of Interior, but that section 2 must be
read in conjunction with any other expressed grant of authority.29
255 I.D. 103 (August 24, 1942).






21


Upwever, the Interior Department has taken the position from time
time and has relied on section 2 as the ultimate repository of
ajpoqrity delegated by the Congress to the Interior Department. The
$Qsk force recommends that section 2 be interpreted simply as an
epabliig statute which necessarily must be tied to an express grant
of authority by the Congress to the Secretary as it may be exercised
qyer Indian tribal government.
Our objection to section 81 is that it is needlessly broad and that
Secretarial approval of contracts entered into by Indian tribes should
only relate to contracts which in one way or another call for use,
disposition of trust income, or assets. Certainly, there are other broad
statutes which are poorly drafted or statutes which give the Secretary
nion-trust-related authorities over Indian tribes which do not call for
tr-ibal consent. The analysis of these statutes will be addressed by the
Task Force on Indian Law Revision, Consolidation and Codification.
the primary concern of this task force is to articulate limits to the
Secretary's authority over Indian tribes. We simply do not see any
basis for the Secretary to have authority over Indian tribes other than
as related to his role as trustee.
In relation to the Secretary's role as trustee, we have commissioned
an additional legal memoranda which'attempts to identify appro-
priate guidelines and standards for the exercise of this discretionary
authority over Indian tribal governments.30 The task force recognizes
that the trustee necessarily must have'broad authority and discretion;
however, we find 'inconsistency in overall Federal policy which vests
authority in the trustee to veto tribal actions in relation to the trust use
management or disposition, but does not provide for any standards
by which Secretarial actions can be judged. We recognize that it is
basic to the nature of a trust relationship that the Secretariy have ulti-
Mnate authority, but such authority ought not go beyond the reach of
administrative guidelines and standards. The appendiced legal memo-
randa provides a more detailed analysis and suggests such standards
and recommendations. Specific recommendations on this point will be
included in the recommendations section of this chapter.
There remains one other broad area concerning the relationship be-
tween the Secretary of the Interior and Indian Tribal Government. In
the past, in a significant number of cases, the Secretary of Interior has
been called upon to exercise authority to recognize or not recognize
any given tribal council." This variation of the Secretary's authority
is traditionally called into play when he is confronted by an Indian
tribe wherein the tribal council is not able to effectively govern the
tribe. In some instances, there are two factions, each claiming to be the
legitimate tribal council or legitimate representative of the tribe. The
Secretary has been called upon to choose either one or the other or to
initiate action which would call for a general election by the tribe. The
task force recognizes that the Secretary of Interior, as the trustee,
pi timately has to determine with whom he must deal within the tribe
regarding his administration of the trust. In a great majority of cases,
there is no problem as there is a continuity within the Tribal Govern-
iment, and the tribal constitution or bylaws generally spell out how the
t 30 Appendix VIII: Analysis of Administrative Discretion of Secretary of Interior Regard-
likr Delegated Authority Over Indian Tribal Trust Resources and Income.
3 Exhibit 4: Prairie Band of Potawatomi and Kickapoo disputes.


77-465---77-3






22


tribe is to elect its leaders. If leaders are not elected in accordance with
the tribal constitution, then clearly, there is a right under the Indian
Civil Rights Act due process clause to call into play the review au-
thority of the Federal court system. With regard to this issue, the
task force would simply like to point out that this authority of the
Secretary to withdraw his recognition from any given Tribal Govern-
ment ought to be exercised only in the most extreme sorts of
circumstances.
The task force's special recommendation on this issue will, of
course, be contained in the recommendation section of this chapter,
but the general thrust is that the Congress should reaffirm the responsi-
bility of the Interior Department to determine who within the tribal
government the trustee will recognize, but reserve this authority for
the most extreme sorts of circumstances. Any exercise of such authority
ought to be accomplished by complete findings of facts supported by
evidence.
Recommendations
Chapter I recommendations call for changes in the Indian Reorga-
nization Act and related provisions of Title 25, United States Code.
Three purposes to be achieved by the following series of recommenda-
tions are: (1) Repudiation of the assimilationist policy implict in the
Indian Reorganization Act, as reflected in the record of hearings, many
reports, and floor debates on the proposed Indian Reorganization
Act, in favor of congressional statement of policy affirming the right
of Indian tribes to exist as permanent, independent political units
with the correlative right to define the nature and structure of tribal
governments in a manner consistent with each individual tribe's
unique cultural and traditional community values. (2) To extend
the positive benefits incorporated in the Indian Reorganization Act to
all federally recognized Indian tribes, regardless of their historical
rejection or acceptance of the IRA. (3) To distinguish and define the
nature of the authority to be exercised over Indian Tribal Governmen-
tal actions by the prime agent of the trust relationship, the Depart-
ment of Interior. The Tribal Government Task Force thereby recom-
mends that:
1. A statement of congressional findings and policy be adopted to
the effect:
a. that Congress has found that historically, the choice pre-
sented to Indian tribes regarding acceptance or rejection of the
Indian Reorganization Act has placed an unfair burden upon the
Indian tribes inasmuch as they were asked to choose between
coming under the total provisions of the IRA without an adequate
opportunity to totally understand the implications, or, to totally
reject the act.
b. that Congress has found that the choice should only have
been addressed to sections 16 and 17 of the Indian Reorganiza-
tion Act, providing for adoption of constitutional governmental
forms and federally chartered organizations.
c. that Congress has found that section 2 of the Indian Reor-
ganization Act, providing for definite extension of the period of
trust for Indian lands; and section 5, providing for acquisition of







23


lands, water rights or surface rights and providing authority for
the United States to place such re-acquired lands in trust; and
section 10, providing for establishment of a revolving loan fund;
and section 12, providing for preference in emp oyment for
Indians; and section 19, providing for recognition of "Indians"
on the basis of membership in recognized Indian tribes-should
all have been applied to Indian tribes, regardless of their accept-
ance or rejection of sections 17 and 18 of the act, providing
authority for incorporation and establishment of federally char-
tered organizations.
d that Congress finds that the only authority which the Secre-
tary of Interior should exercise over the actions of Indian tribal
governments which is consistent with the recognition of Indian
tribal rights of self-government should be confined to the Secre-
tary's responsibility to protect trust assets and resources of the
Indian tribes. All other exercises of administrative authority over
the actions of Indian tribal governments cannot be justified with
any duties of guardianship. It will continue to be the responsi-
bility of the Secretary of Interior to protect the trust resources
and assets of Indian tribal governments, but Secretarial author-
ity to disapprove any tribal proposal regarding the use of trust
assets should only be exercised after a written expression of find-
ings that such proposed tribal action will endanger the trust.
e. that Congress further finds that the implicit policy of the
Indian Reorganization Act which looks forward to the eventual
assimilation of Indian tribes into the larger United States society
is viewed as inconsistent with congressional policy respecting the
rights of Indian tribal governments to exist as independent po-
litical units on a permanent basis, so long as the tribal community
chooses.
Accordingly, the Tribal Government Task Force recommends:
1. that section 18 of the Indian Reorganization Act (25 USC 478)
will be repealed and instead, the following savings clause should be
inserted:
Any Indian tribe which has chosen to organize under Sections 16 and 17 of
the Indian Reorganization Act rights shall not be affected. Section 17 of the
Indian Reorganization Act (25 USC 477) shall be repealed with the same savings
clause as applied to Section 18.
2. Section 16 of the Indian Reorganization Act (25 USC 476) should
be amended to state:
The rights 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 Secretary; 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 or 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-







24

approve proposed actions of said Indian tribes, Indian tribal governments, the
Secretary's authority over Indian tribes can only extend or be directly related
to the trust responsibility over the use and disposition of trust assets.
In addition, the Tribal Government Task Force recommends:
1. 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 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 proposed action by the Indian tribal govern-
ment and any disapproval of the proposed tribal action shall be accompanied by
an1 opportunity for a hearing on the part of the tribe, and the Secretary's decision
shall be based on written findings of fact which shall specify the reasons for his
disapproval.
2. that 25 USC 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 the Commis-
sioner 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 re-
sources 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.



























CHAPTER II
TRIBES AS GOVERNMENTS-PROBLEMS IN
THE EXERCISE OF SELF-GOVERNING AUTHORITIES
















Chapter II


TRIBES AS GOVERNMENTS-PROBLEMS IN THE
EXERCISE OF SELF-GOVERNING AUTHORITIES

For the past 200 years, Federal law has recognized the right of
Indian tribes to function as governments in nearly every sense of the
term.1 However, the Tribal Government Task Force has found that
there continues to be a great deal of misunderstanding and a general
lack of information regarding the status of Indian tribes as govern-
ments.2 Based on our extensive field research, the task force has
found that, in general, Indian tribes do indeed function as full-fledged
governments. Our analysis of the present status of Indian tribes has
confirmed that the great majority of Indian tribes have organized gov-
ernments which truly govern the community of people who reside on
Indian reservations, exercising varying degrees of control over the
commerce and territory of the reservation.3 Based on our documenta-
tion, Indian tribal governments do in fact regulate society within their
political and geographical boundaries. Tribes exercise general police
powers. They provide judicial and law enforcement systems for the
reservation and for the reservation communities. Tribal Governments
enact laws, both criminal and civil, for the purpose of maintaining
law and order in society, and regulating commercial and industrial
activity on the reservation. Tribal Governments have established
licensing requirements for a variety of commercial activities, and have
set standards regulating the conduct of such activity.4 More and more,
Tribal Governments have been attempting to regulate all manners of
land use on the reservation, including development and management
of natural resources. Tribal Governments have exercised their author-
ity to impose taxes for the purpose of raising revenue to support the
exercise of Tribal Government.5
L That Indian tribes do exercise sovereign powers was first recognized by the U.S. Su-
preme Court in Worcester v. Georgia, 31 U.S. (6 Pet) 350 (1832), and reaffirmed in
numerous Supreme Court cases since, e.g. Mackey v. Cose, 59 U.S. (18 How.), 100 (1855) ;
Ex fPorte Crow Dog 109 U.S. 556 (1883) ; Jones v. Meehan, 175 U.S. 1 (1889) ; Delawmare
Indians v. Cherokee Nation, 193 U.S. 127 (1904) ; Cherokee Intermarriage Cases, 203 U.S.
76 (1906) : United States v. Quiver, 241 U.S. 602 (1916); Morris v. Hitchcock, 194
U.S. 384 (1904) ; Williams v. Lee 358 U.S. 217 (1959).
ZExhibit 5; "Non-Indians Organize Opposition to Tribes", NCAI Bulletin, Spring,
1976; "Judge asks Governor to Discard Law, Treaties", "The Medicine Bundle", VoL IHII,
No. 2, March, 1976. Also see, Exhibit 2.
SAppendix XVIII; Task Force Field Consultant Reports.
Solicitor's Opinion, 55 I.D. 14 (1934) concluded that the powers vested in an Indian
tribe are not delegated powers granted by express acts of Congress but "inherent powers
of a limited sovereignty which has never been extinguished", 55 I.D. at 19. See also,
M-36781 (August 25, 1969), Solicitor's memorandum on tribal authority to charter
corporations. Case law following Worcester, note 1 Supra., has supported tribal authority
to tax as a logical exercise of sovereignty. Iron Crow v. Oglala Sione Tribe, 231 F. 2nd
89 (8th Sir., 1956) ; and refused state pre-emption arguments as contrary to the exercise
of tribal jurisdictions to tax the sale of liquor on reservations. U.S. v. Mnswr, 96 S. Ct.
710 (1975).
A 5For a discussion on the interface between state and tribal taxation powers in New
fexico, see "Taxation and Indian Sovereignty"; A Study by the American Indian Law
Center, University of New Mexico (1975).
(27)







28


D;.wt'.t;,e f In addition to this inventory of political powers and responsibilities
exercised by Tribal Governments, as documented extensively in our re-
s:arch. the task force hlias identified several important areas whereby
Tribal Governments can be distinguished from non-Indian units of
local government.6 In general, we found that each tribe has
retained, in varying degrees, traditional, cultural, and religious
societal practices which influence the manner and form in which the
tribal government is operated. Cultural characteristics unique to In-
dlian tribes. are also individual, in the sense that each tribe has its own
indli\idlual practices, and these practices affect the exercise of tribal
government, in their own unique way. For example, the Plains tribes,
who are in general nomadic people, traditionally existed on a
subsistence economy, based on their practice of hunting and food
gathering. Their traditional practices and cultural beliefs are clearly
distinguishable from the Pueblo tribes, who have an entirely different
cultural background. The Pueblos were not nomadic people, but rather
settled for centuries in one area, and subsisted primarily on an agrar-
ian economy.
The beliefs and cultural practices of each community influence the
communit-.'s view of what the role of government should be, and how
the powers of government should operate. This influence is in some
eases. very subtle, and in other cases, very direct. However, the task
force found that in general, nuances of this cultural influence on the
manner and exercise of tribal gov-erning powers, ultimately was not
relevant or reduceable to the level of task force recommendations.8
WihiTe it is true that these considerations point to problems in the
sense that tribes have evolved governmental systems which are not
completely parallel to the governmental systems we find in the general
society, the nature of differences in tribal systems are internal matters
whicWh are a responsibility of the tribal community, and not a respon-
sibility of the Federal Government.9
PIi;ght to define the nature and form of government
It is the conclusion of the Tribal Government Task Force that it is
a continuing responsibility of the Federal Government to recognize
one of the most basic rights of Indian tribes: the right to define the
nature and structure of lithe Tribal Government. This elementary right
has been repeatedly recognized in Federal law, and should constitute
prevailing policy influencing the congressional view of the total Fed-
eral-Indian relationship.11 Nevertheless, the task force has identified
a tendency on the part of Congress and the executive branches of gov-
ernment, to expect Indian tribes to act in precisely the same manner as
Exhltbit 6; Indian Tribes as Governments, American Indian Lawyer Training Program,
In. 1975).
7 Appipndix XVIII ; Task Force Field Consultant Reports.
Note 7 S',ipra.
Puerblo of Santa Rosa v. Fall, 272 U.S. 315 (1927) ; Implicit recognition of a tribe's
r'rm.r to hnrgsp a non constitutional form of government: O'Neal v. Cheyenne River Sioux
Tribe. 4S2 F. 2d 1140 (8th Cir.. 1973) : Requirement of exhaustion of tribal remedies
TIn civil action before Fpderal Court jurisdiction invoked under the 1968 Indian Civil Rights
Ar-t. 25 S.C. action 1301-1.303 (1970).
30 Sp.o, "Thp Scope of Tribal Self-Government", Chapter Seven. Felix Cohen, "Handbook
,f 'I-lderal Indian Law", the 1942 Edition as republished by the University of New Mexico


C






29


non-Indian governmental systems.11 This tendency is manifested, for
example, in the regulations developed by the various Federal agencies
for the administration of Federal domestic assistance programs. Such
regulations impose standards of governmental uniformity on tribal
governments as a condition for participation in Federal domestic as-
sistance program benefits, and are inconsistent with Federal policy
which recognizes the right of tribes to form unique governments. This
issue will be dealt with in more detail in chapter IV.
Membership rights
One important aspect of the right of Indian tribes to define and es-
tablish their own systems of government is the right to establish
standards for membership in the tribe. No other political unit in the
Federal system conditions citizenship rights on descendancy from a
specific ethnic or racial group. However, as the U.S. Supreme Court
has recently pointed out in the case of Morton v. Mancari, Indian
membership rights and the political rights which follow membership,
are unique in the Federal system, but nevertheless, have withstood the
test of Federal law.12
Present status of Tribal Governments
The period of years following the passage of the Allotment Act of
1887 saw the deterioration and eventual disappearance of many Tribal
Governments. The Allotment Act had transferred control of Indian
lands from the tribe to the Federal Government. As the administrator
of allotments, the Indian agent began to compete with tribal officials
for the loyalty of the Indian people. The power of a local agent was
pervasive-he controlled the issuance of food and supplies promised in
treaties, and was responsible for allotted lands held in trust. By the
early 1900's, the Indian Office, through the local agent, exercised al-
most absolute control over the reservation, sometimes replacing the
legitimate tribal officials as the governing authority, despite the absence
of statutory authorization for such interference.
With the passage of the Indian Reorganization Act of 1934, Indian
people found themselves forced to decide whether or not to adopt a con-
stititional form of government, a concept wholly alien to almost all
tribes, except perhaps the Iroquois Confederacy and the Five Civilized
Tribes.
In 1976, forty-two years after the passage of the Indian Reorganiza-
tion Act (IRA), many Indian people are just beginning to view their
tribal governments as legitimate, functioning governments.3 In spite
of the paternalism of the Bureau of Indian Affairs, and limited tribal
resources, Indian leaders perceive a very pressing and critical need to
develop governments which will be able to exercise the full array of
u Appendix I: Chapter IV.
L417 U.S. 535. 551-552 (1974) Mancari, reaffirmed the validity of the Indian Re-
organization Act provision calling for preference to qualified Indian applicants in Bureau
of Indian Affairs job vacancies. See also, The President's Message to Congress on Indian
Affairs, July 8, 1970, six Weekly Compilation of Presidential Documents, part 3, 894
(1970).
It should be noted that rights that accrue to Indians are not conditioned on ethnic
origin but on tribal membership and as such are political rights, although membership
is almost universally conglitioned on ethnic origins. The importance of Mancari, supra,
cannot be overstressed because It recognizes in the second half of the twentieth century.
that tribes are political entities with their citizens entitled to rights based upon tribal
membership.
13 See Appendix XVIII; Cheyenne-Arapaho Field Report.






30


powers and to develop the capability of delivering a wide range of
governmental services to their tribal communities.
Time and again in task force meetings and hearings held over the
past year. tribal leaders have stressed their sense of the need to rapidly
develop tribal governments with the capability of exercising political
powers which would truly regulate all facets of society, land use, and
commerce on the reservation. Tribal perceptions of the need for
governmental development center on two primary considerations.
First, tribes realize that they are in a battle for jurisdiction with the
states, and to a lesser de-gree, with the Federal Government. It is com-
monly perceived that if tribes do not aggressively and effectively exer-
cise their powers of self-government, there is a tendency for states to
usurp or infringe upon the political rights of tribes.14 States have dis-
played a growing interest in exercising political authorities within the
)boundaries of the reservation. Primarily, this interest falls within the
general areas of taxation,15 land use control,6 law and order,17 and
regulation of natural resource development.'8 Secondly, tribal leaders
believe that their ability to protect inherent tribal rights will be en-
hanced by developing the governmental capacity to regulate land use,
taxation, commercial activity, and natural resource development.19
Special stdes in regulatory powers of tribes
A series of in-depth studies of key issues involved in tribal exercise
of self-governing powers was commissioned by the task force. These
studies analyze: (1) land use and natural resource development; (2)
taxation; and (3) judicial-law enforcement authorities. A case study
approach was used to document and analyze successful efforts of tribes
known to be exercising tribal powers in an effective and equitable
manner. In addition to these case studies, the task force has summa-
rized the status of the law and pointed out the weight of Federal
recognition supporting the authority of tribes to exercise these basic
governmental powers. The reader is referred to the appendices of this
report for the full text of these studies.
Land use and natural resource management
Based on the task force research and case studies, it is quite clear
that a tribe must exercise, to the fullest extent possible, the powers to
control land use and to regulate natural resource development within
the boundaries of the reservation, if the tribe is to operate effectively
as a government, and as a government, to protect the very legitimate
and basic interests and rights of the tribe as an entity.20
In the last session of Congress, bills were introduced in both the
House and the Senate, designed to develop a national land use pro-
gram.2' As passed by the Senate during the last session of the Con-
gress, the Land Use Planning Act contained a provision recognizing
14 Appendix T; Chapter II (generally).
2 Appendix I; Chapter II, pp. 12-13.
1 Appendix I; Chapter II, pp. 10-11, 15-16.
17 Appendix I; Chapter II, pp. 16- 17.
Appendix 1; Chapter II, p. 18.
"Appendix XVIII; Field consultant Reports.
20 Note 16, Supra ; and Appendices III and IV.
SKnown as the Land Use Policy and Planning Assistance Act, S. 268 and S. 924; Senate
Report 93-197, 92 Cong. 2nd Bess., June 7, 1973.








the tribes as the unit of government for the geographical areas of the
reservation.2 The Senate version of the bill was entirely consistent
with long-standing Federal policy in recognizing tribal control not
only over tribal land, but also over allotments, fee patent land, and
rights-of-way within the boundaries of the reservation. However, tlhe
House version of the Land Use Control Act did not follow the Senate's
lead, and instead, the House Interior Committee proposed that a two-
year study be conducted by the Department of Interior, as to the need
and capability of Indian tribes to exercise land use controls over all
lands within the boundaries of the reservation.Y Testimony which
accompanied this proposal in the bill raised doubts as to the legal au-
thority of tribes to exercise land use powers, particularly over patent
lands within the boundaries of the reservation, as well as raising policy
questions relative to confirming this basic power of tribes.24
Attached to the task force report is a special report on land use
control by Indian tribes which documents the considerable authority
existing in Federal law supporting tribal exercise of land use powers
over all manners of lands to be found within the boundaries of the
reservation.25
Taxation
A special report on taxation is attached in the appendices of the
Tribal Government Task Force Report which documents several in-
stances of effective tribal exercise of taxation powers and effective sup-
port of government based on this basic revenue-raising authority.26 Of
particular note is the progressive effort now being made by the tribes
in the State of New Mexico. The New Mexico Intertribal Tax Com-
mission, established by the tribes of New Mexico, serves the dual pur-
poses of providing a mechanism for negotiating with the state rela-
tive to common tribal-state interests regarding taxation within the
boundaries of the reservation, as well as providing a resource and re-
search unit to support tribal efforts in initiating taxation schemes
of their own within their respective reservations. One of the basic
premises behind the establishment of the Commission by the New
Mexico tribes is the common sense recognition of the futility and
eventual ineffectiveness of litigation as a means of resolving differ-
ences between the tribes and the state as to jurisdictional issues.27 Un-
fortunately, the task force is not able to report a particularly re-
sponsive attitude on the part of the State of New Mexico. However,
there is hope that through persistent tribal efforts, destructive litiga-
tion can be diverted, and instead, tribal-state intergovernmental corm-
pacts or agreements may prove in the future to be the norm.
The task force taxation report summarizes the legal authority sup-
porting the power of Indian tribes to tax all matters of commercial
and other activity within the boundaries of the reservation."8 In addi-

inzote 21, Supra.
"Land Use Planning Act of 1973; H.R. 10294, House Report 93-798, February 13, 1974.
Note 23, Supra.
"Appendix III: A Case Study of Land Management and Land Use Planning In the
Quinauit Indian Reservation and Appendix IV; Coal Development v. Crow and Northern
Cheyenne Tribes.
-Appendi XIV ; Taxation Powers of Tribal Governments-Summary of Supportin!
Legal AthoritUes and Appendix XV; Ogala Sioux Tribal Taxation System Case Study.
SAppendix XIV.
SNote 27, Supra.






32


tion. the report refers to several recent studies in the area of taxation
which discuss the policy values confirming taxation as a revenue-
rai;ing authority of Indian tribes."
In summary. these policy considerations point to the wisdom of en-
cnurazing Indian tribes to develop taxation schemes as a means of
I', ic governmental support for the tribe. As more and more tribes de-
vise revenue-raising techniques, there should be a correlative decrease
in dependency on Federal support for the basic functions of Tribal
Gn v'-.lnIm. ?nt.
.i/r? ,.', -,1-7( ,," foi orement
Task force studies in the area of judicial authority and law enforce-
ment powers document the experience of the Gila River Indian Com-
munitr in Arizona."0 The Gila River Community is nationally known
for its progressive and effective judicial system. Particularly, .they are
known for their experience in asserting and exercising tribal jurisdic-
tion over all matters of criminal offenses by non-tribal members, in-
(ldind r non-Indians. Thl-e task force believes that the Gila River
Community has demonstrated that there is nothing inherently difficult
nr abhorrent in the concept of Indian tribes asserting jurisdiction over
non-Indianrs within the boundaries of the reservation. In order to truly
effectively maintain order within the reservation boundaries, and to
protect the rights of individuals residing within the reservation bound-
aries. the tribal government, through its law enforcement personnel,
must be able to enforce laws on the reservation irrespective of the race
or identity of an individual violating the law. The Administration,
particularly the Interior Department. has equivocated on the issue
of jurisdiction over non-Indians in the past. Legal authorities support-
ing this exercise of elementary tribal power are summarized in this
report.
The Tribal Government Task Force has identified a series of Federal
statutes which are inconsistent with the basic conception of tribes as
fully-functioning governments. These statutes include the Full Faith
and Credit Statute, the Indian Civil Rights Act of 1968. the Major
Crimes Act of 1885, the Assimilative Crimes Act. and Public Law
83-280.
Problems hin the lack- of full faith and credit towards Indian tribal law
and court judgments
The task force commissioned extensive field and academic research
focusing on the problem created for Indian Tribal Governments due to
the lack of full faith and credit accorded tribal laws and tribal court
judgments. The attached studies document the practical and legal
nature of problems resulting from the lack of a requirement under
Federal law that state and Federal courts enforce and recognize tribal
law and court judgments.31 Although Felix Cohen concluded in his
Federal-Indian law treatise that such recognition was required by
FI-ederal law, his analysis has not withstood the test of time.32 The
Note 27. Supra.
"Appendix XI.
3 Appendix XIII: Full Faith and Credit Between State and Tribal Courts and Appendix
X: Issues in Mutuality-The Existing Relationship Between State and Tribal Courts.
n(hp.o F.- "HIandbook of Federal Indian Law"; the 1942 Ed. as republished by the
Ur,cv(-rsity'of New Mexico Press.






33


edarts hare siice reasoned that because Indian tribes were not specif-
ically referred to in either the constitutional full faith and credit
clause, or in the statutory interpretation of full faith and credit found
ia 28 USO 1738, the requirement does not extend to tribal laws.33 As a
result, recognition and enforcement of tribal laws and court judg-
mteris is decided on an individual, case by case basis. Some state courts
have occasionally accorded recognition to tribal court judgments on a
theory of judicial comity, but such recognition has been almost ex-
clusively in the area of domestic relations. Since comnity is almost
purely a matter of judicial grace, as a practical matter, litigating
parties can expect little uniformity and notice, when seeking enforce-
ment of judgments."
:The taSk force has concluded that the resultant situation whereby
fithe force and effect of tribal and state court orders and judgments
stopat the: reservation boundaries is intolerable. The injustice to
litgtng parties seeking deserved and legitimate redress for serious
legal injustices as a result of a system of almost total legal separate-
aess cannot be allowed to continue. Indian tribal governments can
never be regarded as an integral element of -the total federal system
until thiSat laws and court judgments are recognized on a pat with
those of the state and Federal governments, under the principle of
full faith and credit. The task force therefore concluded that there
are nO'oeomielling policy reasons why Indian tribes should not be in-
ciied within the scope of 28 U.S.C. 1738. Accordingly, the task force
recommends appropriate amendment of -section 138 to include
Indian tribes.
Their task force recognizes that congressional extension of the full
faith and credit requirement to include tribal courts must necessarily
be on a reciprocal basis. That is, just as state and Federal courts
should .be required under Federal law to recognize tribal law and
court 'dersBilateral recognition of state judgments and laws should
alto bbt required of Tribal Gqvernments. The task force has found
that the majority of Indian tribes presently provide for .recognition
and enforcement of state la*, even iJn the absence of a binding re-
qUiremnti ',&inder Federal law. Such a practit4e is generally not re-
garded as onerous or a backdoor 'extension of state jurisdiction. How-
ever, a natural resentment has been occasioned on the part of tribal
' 6erntnent officials when confronted with state refusal. to provide
reciprocal recognition. Extensive analysis of the legal and practical
nature .6f the problem is included in the reports commissioned by the
task for&e, as well as details of implementation of the full faith and
Cietcf principle to include'Indian Tribal Governments.
fwdmn vil Rig/d 8Act
-nIit 1 68, Congress, exercising its plenary authority over Indian
tribes, enacted the Indian Bill of Rights as part of the Civil Rights
LAt In language copied from the Constitution, the Act'enumerated
qacific -ri* ts not xto be abridged by Tribai Govenunents. Amendments
one and four through eight were incorporated with the following
!.: ,t .. .H t -. r
..U348 CuBs. A Section 1Z38 hiWch ejcie4 thp full faith and credit requineme adsd
"tetrltoies or postbSlons of the UnittdStater at well as fe statetf. For ontrra y %did-
Ingsee, Allen Jim v. 0IT, 533 P. 2d 751 (1975). .
s Note 31, Supra.
S25 U.S.C. Section 1301 et seq. -






34


variations: (1) establishment of religion is not prohibited; (2) the
right to counsel is guaranteed only at the defendant's expense; and (3)
as a complement to the statute's limitation of Indian courts to penal-
ties of six months and $500.00 fines for one offense, there is no right to
indictment by a grand jury. In addition, the tribe is prohibited from
denying to anyone within its jurisdiction, the equal protection of the
]aw.
Over the past year, tribal leaders and judges have expressed con-
cern over the arbitrary six month and $500.00 ceiling on tribal court
penalties.36 The legislative history of the Indian Civil Rights Act
reveals the drafting committee's confusion between tribal courts and
Courts of Indian Offenses. Courts of Indian Offenses are adminis-
trative entities under the supervision of the Department of Interior.
These administrative courts are viewed as educational devices for
tribal governments, as well as misdemeanor courts for those reserva-
tions where the tribe does not wish to exercise their right to establish
tribal courts. The Code of Federal Regulations prescribes the mis-
demneanor offenses subject to the jurisdiction of the Court of Indian
Offenses and limits the penalties to be imposed to no more than six
months and $500.00. The drafting committee incorporated this limi-
tation on penalties into the Indian Civil Rights Act after confusing
tribal courts with Courts of Indian Offenses.
Clearly, tribal courts are not the same as Courts of Indian Offenses
and there is no natural reason for imposing similar restrictions. The
task force recommends that this limitation on the penalty power of
tribal courts be deleted from the Act, being totally inconsistent with
Federal policy supporting the concept of tribal self-government.
Major Crimes Act
In response to the Supreme Court decision in Ex Parte Crow Dog,
which held that a Federal district court did not have jurisdiction over
crimes committed between Indians of the same tribe, in 1885, Con-
gress enacted the Seven Major Crimes Act.
Specifically, the Major Crimes Act was the result of public opinion
expressing outrage that an Oglala court could find a defendant guilty
of murder, but only order him to make restitution in the form of
services and property to the victim's family. The penalty was fully
consistent with traditional tribal practices, but not considered severe
enough by the neighboring white settlers.
The act gave territorial courts jurisdiction over enumerated major
offenses committed by Indians within a territory, and gave Federal
courts jurisdiction over such offenses committed by Indians on reser-
vations within a state.
In the original Act of 1885. the enumerated offenses included:
murder, manslaughter, rape. assault with intent to kill, arson, bur-
glary. and larceny, committed by one Indian against another. Incest.
assault with a dangerous weapon, and embezzlement were added
later.T In all. there are 13 major offenses which are within the scope
of the Major Crimes Act.
Since the passage of the act, a number of Federal court decisions
have held that the intent of the act was to withdraw tribal jurisdic-
Spendlx ;: Chapter II, pp. 19 and 20.
S18 U.S.C. Section 1153 et Weq.






35


tion over any of the enumerated felony offenses. Such a limitation on
the authority of tribal courts must. in 1976, be deemed inconsistent
with a recognized right of self-government. All other units of gov-
ernment-states, counties, and municipalities-are recognized as hav-
ing varying degrees of felony jurisdiction, and it is only logical to
presume that if tribal governments are truly self-governing, they
must be recognized as having jurisdiction over criminal offenses,
whether they be of the felony or misdemeanor categories.
The problem is magnified by the fact that Federal law enforcement
and judicial systems are not adequately exercising jurisdiction over
these major crimes on Indian reservations.38 There are repeated as-
sertions by tribal people and tribal community leaders that Federal
marshals, prosecutors, and the FBI are very selective in the manner
in which they enforce felony laws on reservations.39 All too often, non-
Indians are not prosecuted as vigorously as Indians.40
There are a number of tribal courts who are quite capable of exer-
cising this additional jurisdictional responsibility,41 and at a mini-
mum, tribes should be recognized to possess jurisdiction over all
felony offenses.
Assimilative Crimes Act
The Assimilative Crimes Act 42 was enacted to provide for the
punishment of offenses committed within or upon Federal enclaves,
including Indian reservations, where the offense was not punishable
by any act of Congress, but which would be punishable under state
law, if committed outside the Federal reservation. The Act was de-
signed to apply state law in Federal enclaves where there was no pre-
existing applicable Federal statute.
The act is reasonable when applied to the great majority of Fed-
eral enclaves such as national parks and forests which have no local
government, but is clearly inappropriate and unnecessary when ap-
plied to Indian reservations which possess sovereign Tribal Govern-
ments. Any vacuum in Federal law could readily be filled by tribal
regulations and ordinances. Moreover, a decision by the tribe not to
fill in Federal loopholes is no justification for application of state law
within the reservation.
Because Indian reservations are included within the provisions of
the act State gambling ordinances, licensing rules, and State hunting
and fishing regulations may potentially be applied to Indian country.
This extension of state jurisdiction is clearly inappropriate and com-
pletely in conflict with the congressionally recognized jurisdictional
authority of tribal governments.
There is no express language in the Assimilative Crimes Act which
makes it applicable to Indian reservations. In addition, legislative
history is completely devoid of any congressional intent to apply
'state criminal law or state regulatory rules to Indian reservations.
In the absence of any kind of expression of congressional intent.
it seems clear that Indian tribes should not fall within the scope of
the Assimilative Crimes Act.
38 Appendix I; Chapter II, p. 6 and 7.
W Note 38. Supra.
Note 38. Supra.
41 Appendix I; Chapter II, pp. 6 and 7.
42 18 U.S.C. Section 13.




tlm


36

Public Law 83-280
The Tribal Government Task Force is fully aware that the Task
Fo1re onl State, Tribal, and Federal Jurisdiction will be addressing
Public Law 83-280 and related jurisdictional statutes in some detail.
T''he concern of this task force is the problems which have been
created for tribal governments by this exercise of state jurisdiction.
The Senate proposal to amend Public Law 83-280 (S. 2010) and
related statutes, which is now before the Congress, has already wit-
ness.ed testimony from Indian spokesmen, Federal agency representa-
tives, and State authorities.43 We would simply add our task force
voice., emphasizing the inappropriateness of state jurisdiction over
Indian tribes, and the need for congressional attention to resolve
what is basically an inconsistency and conflicting policy on the
part of the Federal Government toward Indian tribes and tribal
governments.
R, [com mlef datiovns
Tlie following series of recommendations by the Tribal Govern-
ment Task Force is directed to the provisions of existing statutes
which directly or indirectly impose limits on the self-governing au-
thority of Indian Tribal Governments in a manner which is incon-
sistent with the Federal policy recognizing the right of Indian tribes
to exist as independent political units within the federal system.
Accordingly, the Tribal Government Task Force recommends:
1. that 25 U.S.C. 1302 (commonly known as title II of the 1968
Indian Civil Rights Act) be amended in the following manner: Sub-
section 7 shall read: "require excessive bail, impose excessive fines,
inflict cruel and unusual punishment."
This proposed amendment would delete from section 7, language to
the effect that Indian Tribal Government could impose for conviction
of any offense, any penalty or provision greater than imprisonment
for a term of six months or a fine of $500.00 or both.
2. that title 18 of U.S.C. 13 U.S. Assimilated Crimes Act be
amended by the following language to be inserted at the end of the
Act to read: "above provisions should not apply to any Indian reser-
vations wherein the Indian tribe is exercising powers of self-
government."
The purpose of this amendment is to eliminate the possibility of
applying substantive state criminal laws to Indian reservations by
Federal law enforcement authorities. This recommendation is based
on a finding that the purpose of the. Assimilative Crimes Act was
snl1elv to fill any possible jurisdictional vacuum caused by the absence
of Federal law as applied to the Federl "enclaves" as defined in 18
U.S.C. 7. It is clear that the intent of this law was to give authority
to Federal law enforcement officers to apply the criminal laws of the
state, wherein the Federal enclave was located, but since Indian Tribal
Governtments rightfully exercise all jurisdiction not pre-empted by tlie
Federal Government within the boundaries of reservations, applica-
tion of state law is clearly inappropriate.
3. thlat title 18 U.S.C. 1153 shou-ldbe amended to insert thwfolfrw-
in-lf i .tl130 n hl~d be amended to insert th-e-folltew-
inlanguage at the end of the existing statute: "Notwithstanding the
9 leaJrings before the Subcommittee on Indian Affairs on 8. 2010, part 2, May 4-5.
1976.






37


exercise of jurisdiction over any of the above named offenses by the
Federal Government, any Indian tribe shall be recognized to posses-s
concurrent jurisdiction insofar as any similar offense may have been
defined under tribal law. In the event of an assertion of criminal juris-
diction by any Indian tribe over any felony-grade offense as defined
under Federal law, ,ny defendant shall have an automatic right of
appeal to the appropriate Federal district court."
4. that 18 U.S.C. 1161 and 28 U.S.C. 1361 (Public Law 83-280)
be amended to give Indian tribes retrocession authority as proposed
in Senate bill S. 2010, 94th Congress, 1st Session, June 25, 19T75.
5. that 28 U.S.C. 1738 be amended to insert the following language
after the word "Territorial", in the title of the statute: "and Tribal";
after thie word "Territory", in the first paragraph: "Indian Tribe";
after the word "Territory" in the last line of first paragraph: "In-
dian Tribe"; after the word "Territory", in paragraph two: "Indian
Tribe"; after the word "Territory", in paragraph three: "Indian
Tribe".
The purpose of this amendment is to place Indian tribes on the same
footing as states and territories with respect to the applications of
full faith and credit principles, thereby eliminating the serious injus-
tices and jurisdictional dilemmas discussed in chapter II of the Task
Force Report and Appendiced Studies.


77-465-77--4




. ........... .....



























CHAPTER III
FEDERAL RESPONSIBILITY TO PROVIDE SUPPORT
FOR THE FUNCTIONS OF TRIBAL GOVERNMENT



































































































































































. ................ ...*













Chapter III


FEDERAL RESPONSIBILITY TO PROVIDE SUPPORT
FOR THE FUNCTIONS OF TRIBAL GOVERNMENT
In the course of the Tribal Government Task Force's year-long
investigative effort, approximately 63 days were spent in the field
visiting twenty-one 1 different reservations; over thirty tribes 2 re-
sponded to a comprehensive forty-one page survey of Tribal Govern-
ment; and over 70 tribes presented testimony on Tribal Government
issues in hearings and roundtables held throughout Indian country.
One of the overriding issues which surfaced and resurfaced through-
out the year-long study was the critical lack of financial resources
needed to adequately support the basic activities of the tribal govern-
ment. It is undoubtedly no surprise to the Commission or Congress
that adequate financing is a major concern to Indian tribes, but our
primary focus is not so much on the adequacy of general Bureau
programs, but rather on the ability of tribes to finance their tribal
government either through independent tribal revenue or Federal
programs.
Specifically, the task force has been concerned with the ability of
tribal governments to finance:
1. a full-time salaried tribal chairman;
2. an adequately compensated tribal council;
3. a tribal attorney;
4. a tribal administrator; and
5. needed technical assistance.
These positions or functions have been identified by many tribes as
critical to the successful exercise of tribal sovereignty. They are con-
sidered to be the "fundamentals" of Tribal Government and without
the presence or availability of these positions or functions, the fall
exercise of tribal sovereignty, self-government and self-determination
will never be realized. Clearly, a Federal recognition and reaffirmation
of the inherent right of tribal self-government is a crucial first step
in strengthening tribal governments, but without the ability of tribal
governments to adequately finance these elementary functions, con-
cepts of self-government and self-determination will have little mean-
ing or impact.
This chapter will address the availability of tribal income to finance
the "fundamentals" of Tribal Government; the inherent problems
which result from insufficient finances; and the Federal response to
this critical problem. Specifically, the ability of the self-determina-
tion Grants Program to remedy the lack of tribal income to finance
tribal governments will be discussed.
: Appendix XV.III; Task Force Field Consultant Reports.
2 Appendix XIX; Tribal Government Surveys,
8 The Task Force participated in hearings held in: San Marcos. California: Aberdeen,
South Dakota; Missoulia, Montana; Oklahoma City and Iiuskogee, Oklahoma; and Phoenix,
Arizona.
(41)







42


Financing Tribal CGoreromrnt
In 1972. the General Accounting Office (GAO) attempted to meas-
ure the degree of dependency of the White Mountain Apache Tribe
on Federal funds.4 They discovered that Federal funds accounted
for 81 percent of iall reservation expenditures; state and local funds,
12 percent; and tribal funds, 7 percent. Approximately 19.4 million
dollars were spent by the Federal, state and Tribal Governments on
primarily service-oriented programs such as: education health, hous-
ing, social and community services, business development, and employ-
ment placement and training. No Federal or state funds were made
available to finance the fundamental functions of government outlined
above. Independent task force investigations indicate that tribal in-
come finances the tribal chairman, council and tribal attorney. Ap-
proximately one-half of the law and order budget was financed with
tribal funds. Unfortunately, task force research indicates that a
great number of tribes cannot finance their own tribal government
operations.
The Task Force on Economic Development made an attempt to
assess the potential for financial independence among thirty-two 5
reservations by comparing Tribal Government expenditures for 1975
with tribal disposal income from all tribal resources for 1975.6 They
found that 37.5 percent of the surveyed tribes were unable to pay their
normal government operating expenses. Necessarily, they were de-
pendent on the Federal Government to provide funds for development
and for services. Of these governments, four have physical resource
bases so inadequate that without Federal assistance it is difficult to
imagine them ever being able to finance their tribal governments. Of
the thirty-two tribes, 28.1 percent barely had sufficient tribal income
to cover their annual administrative expenditures.
The results of the Tribal Government Task Force survey were even
grimmer.
Tribal Clhairman
In a survey of fifty-two (52) tribes7 (excluding Alaska) one-half
of the tribes surveyed indicated their tribal chairman was not salaried.
Those same tribes indicated their chairmen could only devote part-
time attention to his or her Tribal Government because of a lack of
tribal income to support a full-time chairman. For many tribes, if
tribal income is insufficient or unavailable to salary a tribal chairman,
the tribe is often unable to salary any other position within the tribal
government. Thus, many tribes have no full-time salaried employees
and the burden of operating a government rests squarely on the
shoulders of an unpaid, part-time tribal chairman.
Although most unsalaried chairmen indicated that they could only
devote a limited amount of time to tribal government affairs, it was
not uncommon for a chairman to spend every available free moment
t Comptroller General of the United States. "Better Overall Planning Needed to Improve
the Standard of Living of White Mountain Apaches of Arizona." General Accounting Office,
August 12. 1975.
The tribes were randomly selected and range in population from 84 to 8,410.
$Tribal government expenditures were not always met from tribal income. In many
If stanres. tribal expenses were met by federal program funds such as the Tribal Govern-
ment Development Fund (TGDF). CETA or General Revenue Sharing.
7 Data for the survey was collected from field report interviews, questionnaires and
testimony taken from hearings and roundtables.






43


on tribal business. A typical situation was described by a chairman of
a Mission Band in Southern California:
It is practically full time right now. Well. I get off about five o'clock in the
evening every night. Four or five nights a week we have meetings on different
types of business programs. And, sometimes, Saturday and Sunday.'
An unsalaried Western Oklahoma chairman indicated that he had
people who spent 25-30 hours a week working for the tribal govern-
ment without any compensation.9
The importance of a full-time tribal chairman cannot be overempha-
sized. Even where funds are available to hire an administrator, situa-
tions arise which require the immediate attention of the elected tribal
leader. Communications and negotiations with the BIA, jurisdictional
confrontations with state and local governments-all require tlhe atten-
tion of someone in a leadership position. In fact, 71.4 percent of those
tribes whose chairman was part-time indicated that having a part-time
chairman adversely affected the operations of their Tribal Government.
The absence of a fll-time chairman clearly hinders the efficient oper-
ations of government just as a part-time governor or mayor would
limit the effectiveness of a state or city government. In fact, for tribal
governments, the negative effect is even greater because of the general
absence of any other salaried tribal employees. Further, Tribal Gov-
ernments generally operate in a "crisis-like" atmosphere. Federal pro-
gram applications often reach tribal offices only days before the dead-
lines for submission. All other normal governmental activities must
cease and proposal packages prepared. If a resolution from the tribal
council is needed, a special council meeting must be called. The con-
struction of a reservation home may have just been "redtagged" for
violation of a local zoning ordinance or a confrontation with state or
county law enforcement officers over the arrest of a non-Indian on res-
ervation lands. These kinds of "crisis" situations require immediate
responses. Without a full-time tribal leader who is able to react, a
beneficial federal program may be lost. More importantly, federally
recognized powers of self-government become meaningless in the ab-
sence of a government to exercise such powers.
Tribal council
Task force research indicated that an even greater number of tribes
were unable to salary their tribal council than those who were able to
salary their tribal chairman. Three-fourths of the tribes were unable
to salary full-time tribal councils. Over 35 percent of the tribal councils
received no compensation of any kind.
The inability to adequately finance council members was considered
by many tribes to be a major stumbling block in the efficient operation
of Tribal Governments.10 A Northern Montana tribe complained of
the inability to complete the revision of a very outdated law and order
code simply because council members were unable to devote more than
a few hours a month to council business.11
The Sisseton-Wahpeton Sioux Tribe of South Dakota felt that
many policy decisions appropriately belonging within the authority
and responsibility of the council were being made by the administrative
See, Southern California Transcript, VoL I, Lp. 61.
Appendix XVIII; Cheyenne-Arapao Field Report
n Appendix I: Chapter IlF, DP. 26-29."
Appendix XVIII; Rocky Boy's Field Report. "






44


i-taffl. because the council was not available a sufficient amount of the
time.12 Even tribes who were able to compensate their council members
complained that compensation was so inadequate that the tribal gov-
ernment experienced difficulty in attracting interested and capable
imldividuals to work in the tribal government.
Like any government, the absence of a fully-participating council
to act as a check on the activities of the executive, creates at least the
potential for abuse of authority. The power vacuum created by an
inactive council forces the executive or tribal chairman to assume the
responsibilities and authority of the council without a delegation of
authority. Practically, the absence of a tribal council may slow down
the tribal government machinery, or even worse, halt it altogether.
Tribal attorney
As important as the tribal chairman and council are to the effective
operations of tribal government, so too is the availability of a tribal
attorney. Tribes are engulfed in a maze of Federal treaties, statutes,
and regulations. Many are engaged in litigation with the states and
Federal government over tribal sovereignty, jurisdiction, water rights,
etc.13 Without the availability of legal counsel not only is the effective-
ness of tribal government hampered, but the potential for narrowing
or usurping of tribal rights of self-government.
The need for full-time legal counsel was considered by many tribes
to be of critical importance. Over 40 percent of the surveyed tribes
have no full-time counsel. Even tribes who retain full-time counsel
complained that it was often not sufficient to meet their day-to-day
legal needs. Though they may have sufficient income to employ an
attorney, tribes felt income was often inadequate to afford badly
needed technical legal kinds of assistance such as that needed in the
drafting of tribal ordinances. Legal advice is not readily available to
many tribal governments.
Thle Uintah and Ouray Tribe of Utah indicated that even though
they employed legal counsel, the high cost of litigation prevented
them from engaging in litigation over a number of issues involving
their tribal sovereignty. The tribe applied for a state liquor license
in order to improve the operations of a tribal resort rather than risk
a state-initiated lawsuit over the tribe's exemption from state liquor
licensing requirements.'14
This scenario was found throughout Indian country.15 Tribes com-
plained bitterly that the Federal Government often sits silently while
the tribe is left to fight its own legal battles. The Department of
Revenue of the State of Montana has taken the legal position that
a tribe is a "local association" which only has those powers expressly
granted to it pursuant to Federal treaties or legislation. The chief tax
counsel rejected any notion that Indian tribes possess any inherent
rights or powers of self-government."6 Conseouentlv, the State of
Montana iq enanged in litigation with Indian tribes or their members
over the application of the following kinds of state taxes: personal
income and property tax; oil and gas net producers tax; oil producer's
lieonce tax; natural fas extraction tax; and inheritance tax.
SApppnrltx XVTTI: S-ssPton-Wnhpeton Field Report.
S\pnpndrix 7 : C(haptpr IT. p. 34.
1 Anppnrix X'VIIIT; Uintah and Ouray Field Report.
1 Vntp 11. Snnr ni.
16 ,PP .MIP.nnla Transcript. pp. 12 and 13.






45


tihr Dbartinen. of Revenue indicated that Montana had recently
adopted a gross proceeds statute for the taxation of coal whereby the
contract les price determines the tax on the coal. Much of Montana's
coal lies within the exterior boundaries of reservations in South-
eastern Montana, specifically the Crow and Northern Cheyenne Res-
ervations. The state tax counsel stated that if at some future time a
coal producer was extracting coal within reservation boundaries, tlhe
state would undoubtedly attempt to apply its coal tax over the pro-
duction of that operation.
SThe financial burden which accompanies litigation of this kind is
considerable. The Aqua Caliente Band of Mission Indians estimated
that they have spent over $250,000 in legal fees litigating with the
City of Palm Springs over their exclusive right to zone tribal lands.17
It is an incredible drain on already limited amounts of available
tribal income. The effect of protracted litigation is the diversion of
tribal income away from other critically needed tribal governmental
functions. If the trustee will not actively protect tribal resources and
sovereignty, then at a minimum. Federal funds should be made avail-
able so that tribes are capable of engaging their own legal counsel
and protecting their own sovereignty.
Other critical need
Task force research further pointed out not only a pressing need
for full-time tribal administrators,18 but for training and technical
assistance. Priority areas for training included: accounting, financial
management, general administration, law enforcement, resource de-
velopment, and business management.19
SOver 75 percent of the tribes have no on-going program to train
uewly elected tribal officials in the operations of tribal government.20
Without a system for institution alizing and teaching the information
out-going elected officials have absorbed during their tenure in office,
stable, smoothly operating tribal governments are extremely difficult
tb maintain.
Adequate financing of Tribal Governments is as critical an issue
for tribes as the reaffirmatibn by Congress of their inherent rights
Sof self-government. UAtil the passage of the Indian Self-Determina-
tion Act, there have been very few available Federal programs de-
signtd to strengthen Tribal Governments.2 Though it is too soon to
adequatelyy evaluate the act in its entirety, it is possible to analyze
its' potential for remedying the fiakicial needs 6f tribal governments.
Indian Self-Determination Act
On January 4, 1975, the 93rd Congress passed Public Law 93-638.
the indian Self-Determination and Educational Assistance Act. It
was the combination of almost 10 years of effort to set a new direc-
tfon for Federal-Indian policy. This new direction provides for full
* participation of Indian tribes in programs and services conducted by
the Federal Government without in any way altering the special trust
responsibility owed Indian tribes.
2Y See, Southern California Transeript; Vol. IT, p. 54.
8 Appendix I; Chapter IT. p. 29.
0 Appendix I; Chapter iM, pp. 80-36.
SAppendix I; Chapter III. pp. 28. 34-35.
Th Tribal Government Development Program was replaced by Section 104 of the
Indian Self-Determination Act (P.L. 93-638).






46


There are four primary sections of title I of the Self-Determina-
tion Act. The first is contracting and directs the Secretary of the In-
terior to enter into contracts with tribal organizations for the
planning, conduct or administration of programs the Secretary is au-
thorized to administer for the benefit of Indian people." The second
is referred to as "capacity building" and authorizes the BIA to award
grants to tribal governments for thle strengthening of tribal govern-
ments. among other purposes.23 The third allows tribes to plan or
designn any Bureau program, excluding any trust resource programs.24
Finally, the act makes available three personnel tools that permit
tribes and tribal organizations to acquire the services of Federal em-
ployees. These tools are: (1) the direct hiring of present employees
of the Bureau of Indian Affairs.25 (25 U.S.C. 48, which permits
tribes to direct activities of Bureau employees; and (3) the Intergov-
ernmental Personnel Act,28 which allows tribes to secure the temporary
services of Federal employees to assist the tribe.
The focus of the Tribal Government task force is on section
104(a) of the Act. the Self-Determination Grants Program. The im-
portance of this program is that it is directed at the strengthening
and improvement of tribal government. It replaces the Tribal Gov-
ernment Development Program (TGDP) and is in effect the only
significant Federal program which provides grants to tribal govern-
ments and for tribal governmental purposes.
Section 104 (a) provides that self-determination grants may be made
for the following purposes: (1) Strengthening and improving tribal
governments; (2) planning, training, evaluation or other activities
designed to improve the capacity of Indian tribes to contract; (3)
acquisition of land in connection with contracting or strengthening
acquisition of land; and (4) planning, designing and evaluating
Federal programs which serve Indian tribes.
Stre nqthengnq Tribal Goernment?
The broadest purpose for which self-determination grants may be
awarded is the strengthening or improvement of Tribal Government.
As outlined in the Bureau's procedural guidelines for self-determi-
nation grants nro,.sram.27 the basic criteria for Bureau approval of
the grant application is that the application demonstrate "a direct
.nd reasonable relationship between the applicant's proposal and
purposes of the Self-Determination Grants Program as set out in the
act and regulations." Part 272 of the Self-Determination Regulations
lit4 six exanim)le of strengthening and improving tribal government.
They are: (1) Developinr the capacity of the executive, legislative
and judicial branches of Tribal Government in areas such as admin-
istration of planning, financial management or merit personnel sys-
temns: (2) improvement of tribally-funded programs or activities;
(.8) development, construction, improvement, maintenance, preserva-
tinn or operations of tribal facilities or resources: (4) training of
tribal officials and employees in areas relating to the planning, con-
2 .Petjnn~q "ln2(a) and 103 (a) of P.L. 638; 25 CrR 271.12.
23 Srttnn 104(a) (c) ; 25 CPR 272.
2.4 9kR 272.27.
; 25 FR 27T5..(a) (2).
S.~otinn 105 f(b) of P.L. 638; 84 Stat. 1909.
Exhibit 7.






47


ducting, administration of tribal programs; (5) designing and im-
plementation of new Tribal Government operations; and (6)
development of policy making, legislative and judicial skills.
It is the responsibility of the tribal governing body to establish
that such a grant will improve the trnbe's governing capabilities.
From this reading, it would appear that if the tribe did not have a
salaried chairman or did not employ legal counsel that such posi-
tions could be financed through the grant program since the presence
of a full-time chairman or legal counsel clearly has the potential for
"improving the tribe's governing capacity" which in turn has the
effect of strengthening that Tribal Government.
Though such a reading appears reasonable, the procedural guide-
lines narrow the broad purposes of the Self-Determination Grant
Program. Part 2, entitled Standards for Selecting Items of Cost,
lists allowable costs, costs allowable with the approval of the Bureau,
and unallowable costs. Salaries and expenses of tribal government
officers are considered to be a cost of "general" tribal government and
are unallowable unless they are a direct result of the tribal officers'
services to the grant program.2s In other words, if a tribe submits a
grant application to revise the tribal constitution and bylaws to de-
fine more precisely the powers and responsibilities of its tribal officials
and branches of tribal government, the tribal chairman could only be
compensated for services related to revising the constitution and by-
laws. Even this cost would only be allowable subject to advance agree-
ment and approval of the Bureau.
For the same grant proposal to revise the tribal constitution and
bylaws, services of an attorney to draft new provisions or advise the
tribe of possible amendments would be allowable. Yet, the self-deter-
mination grant could not be used to employ legal counsel to represent
the tribe on all legal issues affecting the tribal government. Specifi-
cally prohibited are legal expenses for the prosecution of claims
against the Federal Government.29
The procedural guidelines make the distinction between a "specific"
program for improving the tribe's governing capacity and "general"
costs of tribal government. A fallacy of this distinction is that many
tribes simply cannot finance general costs of tribal government. If all
tribes had sufficient tribal income to at least be able to adequately sal-
ary their chairman, council and tribal attorney, then the restrictions on
compensating tribal officers and employing legal counsel are more
understandable. But many tribes do not have salaried chairmen or
employ legal counsel. Even tribes who indicated they salary their
chairman or counsel complained that it was insufficient to allow for
maximum participation in Tribal Government affairs.
One example of the kind of project which is consistent with the act
and its regulations is the improvement of the tribal judicial branch so
that it is able to exercise the full range of judicial powers. Clearly,
there are a number of ways in which a grant application such as this
could be used. Training of tribal court judges on rules of evidence, case
law and procedural motions would be appropriate, or the purchasing
or books necessary for a tribal law library. But could the self-deter-
SNote 27, Bupra.
SNote 27, Supra.






48


ruination grant be used to salary the tribal judge? The ability of a
tribe to adequately compensate its tribal judges is undoubtedly crucial
to improving and upgrading the tribal court, yet under the grant
guidelines, the compensation of a tribal judge appears unallowable or
at best. unclear. Certainly, training of tribal judges is badly needed and
desired by many tribes, but if the salary of a tribal judge is inadequate,
how do tribes attract and retain willing and qualified candidates?
Again. for tribes who have sufficient tribal income to salary these basic
and key tribal positions, the limitations or restrictions on costs are
reasonable. But for the many tribes who are not able to develop their
inoinome capabilities or who simply have no potential income, the limi-
tations are burdensome and oppressive. There are simply not many
Federal programs available to tribes which are flexible enough to allow
them to finance basic tribal government positions.
Ph7;r L,.a-w 93-638
On June 16, 1976. the Commissioner of Indian Affairs notified all
area directors that Congress had approved and the President had
signed the fiscal year 1976 Self-Determination Grant Supplement in
the amount of $7,250.000.30 In determining the field allocations to
tribes under the Self-Determination Grant Program, the majority of
the appropriated funds are to be distributed on the basis of formula
which utilizes a declining per capital share based on the population
of each eligible tribe. In a memorandum to all area directors, the
Commissioner of Indian Affairs explained the formula as follows:
Population: Cost factor
1st 2,000----------------------------------------- $50
Next 2.000--- --- -------------------------------- 40
Next 2.000 ---------------------------------- --------- 30
Next 2.000- -- ------------------------------------- 30
Next 2.000--------- --------------------------------- 20
Next 92.000- -------------------------------------------10
All over 10,000 ----------------------------------------- 3
The population figures used to calculate fund distribution by form-
ula must be in accordance with Exhibit 1 0MB Circular A-46 revised.
The Office of Management and Budget (0MB) issued Exhibit 1 as an
amendment to Circular A-46 on June 6,1975 "to assure use of standard
data on total population for all Federal programs which make use of
total population data in the distribution of Federal benefits." The cir-
cular specifies that the most current Census Bureau estimates are to be
used. Any exception must be justified to 0MB and approved by them.
Tlius, because there are no current census figures for Indian popula-
tion beyond 1970 any exceptions must be approved by 0MB.
The definition of population required by 0MB is as follows: (1)
for tribes eligible for general revenue sharing the latest revenue
sharing population figures; (2) for tribes not eligible for general
revenue sharing an equivalent population is used; and (3) for Okla-
hloma. the census figure for Indians belonging to that particular tribe
in the former reservation area if larger than the revenue sharing pop-
ullation. The population figures for revenue sharing fund distribution
are based on the number of persons under the jurisdiction of the gov-
Exhibit 8; Commissioner's Memorandum of June 16, 1976.






49


eminent and receiving substantial governmental services.31 For In-
dian tribes, the figures are U.S. Census estimates of (1) all resident
Indians within the reservation boundaries whether living on trust
land or not; and (2) Indians residing on trust land pertaining to the
tribe and adjacent to the reservation. Trust land is defined as tribal,
individual or public domain trust land which is held for members of
that tribe.
Serious objections to this criteria have been raised by the tribes
because of the discrepancy between their eligible population under
Public Law 638 and the service population recognized by other Bureau
programs. One rationale given by 0MB for including only Indians
residing on trust land adjacent to the reservation was some govern-
mental unit, other than the tribe, would be providing governmental
services to Indians residing on non-trust lands outside the exterior
boundaries of the reservation. This is clearly an erroneous assumption
on the part of 0MB. Many Indians reside off the reservation but retain
their traditional ties. With the shortage of adequate housing and the
high rate of unemployment found on reservations, Indians must seek
housing and employment opportunities elsewhere. Yet, many are still
eligible for and receive services from the tribe. If one of the major
uyposes of the Self-Determination Grant Program is to increase
tribal ability to contract programs and if off-reservation Indian mem-
bers are eligible to receive the benefits of those programs, then it is
only fair and equitable to include those persons in determining alloca-
tion of Public Law 638 grants.32 Though there is an appeals process
which allows the tribe to contest the assigned population figure, no
objection can be based on the definitions and criteria outlined by the
Office 0f General JRevenue Sharing. The inequity of the population
criteria is further "exemplified by examining the computed "638"
population figure.33
Commissioner Thompson, in a memorandum to all area directors,
recognized the tribal concern over the criteria used for determining
the population figures.34 Without specifying a plan, the Commissioner
expressed his confidence that the fiscal year 1977 allocations would be
made in a way as to provide assistance to tribes which find themselves
underfunded in relation to their service population.
Twenty-six tribes 3S are listed as having zero population figures-
theriefore, they will receive no money under the formula distribution
systeifi. For some of these tribes, it is understandable. Captain Grande.
fr example, is a former reservation of a Digueno Mission Band. The
band eventually split up and two new reservations were established.
Barona and Viejas (Baron Long). Both reservations own the Captain
Grande Reservation although no one presently resides there, and there
isno tribal government.
A number of those excluded tribes, such as the Orleans Karok and
Saulte St. Marie Chippewa, either have no land base or no one resides
.within the boundaries of the reservation. Because the population
1 Exhibit 9 ; Bureau of Indian Affairs criteria for performance of substantial governmen-
- tal functions.
S asee, Exhibit 9; for examples of discrepancy between tribal service population figures
and population figure determined for grant programs.
I Exhibit 10: "638" Grant Formula Distribution for FY 1976.
"Note 30 Supra.
5 See, Exhibit 11 : for a list of the excluded tribes.






50


criteria used requires a reservation population, these tribes will not
receive self-determination grant money, although they are eligible to
contract under sections 102 and 103 of the act. There is no rationale
for excluding tribes who have no reservation or no reservation popula-
tion. Oklahoma tribes are included within the grant program although
they have little or no land base. There is a presumption that Oklahoma
tribes perform Tribal Governental functions and provide services to
their members. The same presumption should be extended to any and
all tribes who have a service population whether or not they have a
land base or reservation population.
Contracting-tribal perspective
As mentioned in the beginning of this chapter, no attempt will be
made to analyze contracting under the Self-Determination Act because
it is such a new program. But, during our hearings, roundtable discus-
sions, and field visits to reservations throughout Indian country, a
number of fears and concerns were raised by tribal leaders over con-
tracting. Some of these fears and concerns must be addressed before
tribes take full advantage of the provisions of the Act.
A great number of tribes have indicated their fear that the Self-
Determination Act is nothing more than a termination piece of legisla-
tion. Part of this fear, no doubt, stems from vivid memories of the
Indian policy of the 1950's. Many tribes are simply fearful that
termination may one day again become the policy of the Federal Gov-
ernment. Although section 3(b) of the Declaration of Policy reaffirms
Congress' commitment to the unique relationship with and responsi-
bility to Indian people, tribes are either not aware of that congres-
sional declaration or simply remain skeptical. The Bureau has been of
little assistance in trying to clarify any of these tribal fears. Through-
out our investigative work, tribes have complained that they do not
understand the act and that Bureau employees either have not ex-
plained it or do not understand the act themselves. As a result, a
number of tribes are afraid to contract for fear that once they do, the
local agency will dwindle in size or completely disappear. Further,
tribes are concerned that the Bureau will not be strong advocates for
Indian budget requests because Bureau employees, who may be re-
placed by tribal employees, will no longer have a vested interest in
seeking those funds. Thus, funding for contracted programs will dry
up. The Creek Tribe, concerned about protecting themselves against
termination, indicated plans to only "selectively" contract Bureau pro-
grams to avoid having the local agency disappear.36
Mafitenance of effort
Directly related to a fear of termination is a tribal concern that
once a program is contracted there are no assurances that funding will
be maintained at the same or a higher level the following year.
Contracting is not a new concept. A number of tribes have been
contracting Bureau programs for several years. Some tribes that have
experienced contracting complained of diminishing Bureau funding,
requiring increasing amounts of tribal income to supplement the pro-
gramin in order to maintain a constant level of services to tribal
members.
1 Appendix XVIII; Creek Field Report.








The Mojave Apache Community on the Fort McDowell Reserva-
tion recently turned back to the bureau its law and order program
after having contracted it for over four years. Their funding level
increased only slightly over that four-year period, and the tribe simply
did not have enough money to maintain their vehicles or recruit quali-
fied officers. After turning the program back to the BIA. last July the
funding increased 50 percent, from $22,000 to approximately $44,000.37
Fort McDowell is now contemplating re-contracting the program with
the hope that it will be funded at its present level.
If the Self-Determination Act is going to be successfully imple-
mented, tribes need a guarantee of a maintenance of effort on the part
of the Bureau. If situations like Fort McDowell persist, the Congress
can be assured the Self-Determination Act will not be widely utilized
Sby the Indian community.
SBIA support of Tribal Government
Just as inadequate funding of programs can undermine well-
intended acts of Congress, so can the individuals called upon to imple-
ment those acts. Testimony received over this past year indicates that
a great many tribes are dissatisfied with the kinds of support they have
received from the Bureau, whether at the agency, area or central office
level.18 Part of the dissatisfaction stems from the attitude of some,
clearly not all, Bureau employees who use their positions and authority
as a threat against tribal actions they do not approve of. The ability of
a superintendent to disapprove a tribal resolution ordinance can seri-
ously disrupt the functioning of Tribal Government.
Although there has been a Tribal Operations Division (now Tribal
Government Division) within the BIA since at least the passage of
the Indian Reorganization Act in 1934, there has never been an effort
by that office to provide the kinds of Tribal Government assistance so
badly needed and requested by tribes.39
Tribal operations appears to be limited to maintaining up-to-date
constitutions and bylaws and tribal enrollment. What tribal govern-
ments are in need of is assistance in the drafting of law and order
codes, zoning ordinances, implied current statutes. This kind of as-
sistance is simply not readily available through any divisions within
the BIA. The Bureau needs to re-adjust its objectives to be able to
respond to the Tribal Governments of 1976.
Recommendations
1. A large number of tribes do not have sufficient tribal income to
support the most basic functions of Tribal Government. At minimum,
tribal governments must have the ability to salary a full-time chair-
man, adequately compensate tribal council members, and employ legal
counsel. There are presently no adequate Federal programs which allow
tribes to support these basic functions and positions of government.
The Self-Determination Grants Program has the potential to remedy
the problem of poorly financed tribal governments. Salarying of a
tribal chairman, tribal council, tribal attorney, or any other tribal
: See, Southwest Transcript: Vol. II, p. 217.
*Appendix I: Chapters I and III (generally).
Appendix XVI: Bureau of Indian Affairs Support for the Functions of Tribal Govern-
ment-Case Study of the Pine Ridge Reservation.






52


official should be considered a legitimate "capacity building" purpose
of the Self-Determination Grants Program.
2. If a population fonnula is to be used for the distribution of Fed-
(ral funds, a tribe's service population should include those members
whlo reside off the reservation whether or not on fee or trust land, if
they are otherwise eligible to receive the benefits or services of tribally
adilinistered program-. The criteria the Office of General Revenue
Sharing utilizes to determine Indian population estimates, should be
amended to include tribal members residing on or near the reserva-
tion whether or not on trust land and otherwise eligible for tribally
a(ln ministecred programs.
3. Tribes who have functioning Tribal Governments, although they
have no reservation residents, should be eligible to receive a self-de-
tejlijnation grant.





























CHAPTER IV


STATUS OF TRIBAL GOVERNMENT AND FEDERAL
DOMESTIC ASSISTANCE PROGRAMS


77-465---77---5














n
Chapter IV

-, STATUS OF TRIBAL GOVERNMENT AND FEDERAL
1 DOMESTIC ASSISTANCE PROGRAMS
In 1976, the Federal Government will expend 59.7 billion dollars
$p Federal grants to state and local governments for Federal domes-
Stic assistance programs, or 22 percent of budget outlays for domestic
S 1ivil purposes.1
In the Summary Findings of A Study of Federal Indian Domestic
Assistance Programs conducted by the National Council on Indian
Opportunity, Office of the Vice President, it is stated:
"There are basic misunderstandings, inaccurate information, and
ack of awareness and knowledge on the political status of federally
recognized Indian tribes in respect to U.S. Federal Government-Tribe
Sfreaty relationship, tribal status as units of government, and tribal
Status in respect to an 0MB (Office of Management and Budget) ex-
plusion from A-95 requirements for state clearances on Federal grants,
01 of which prejudice and constrain federally recognized tribes in
t competing for Federal assistance program dollars." 2
In this chapter of the report, the Tribal Government Task Force
SPas analyzed the status of tribal governments in the massive delivery
i|.jjsem of Federal domestic assistance programs. In our analysis, we
Airmw from several studies of the Federal domestic assistance delivery
stem, testimony given in Congressional hearings, and surveys of 64
E-r erally-recognized tribal governments now receiving services from
|K least one Federal program.
SOur findings consistently show that in the delivery of Federal do-
ic assistance programs, tribal governments are not treated as
vernmnents for the direct access to Federal programs comparable to
toand local units of government.
:,Because tribal governments are governments, the Task Force calls
i)Ar the recognition in Federal policy of tribal governments as equiv-
t to state governments for purposes of direct access to Federal
oestic assistance programs. Any statute less than this simply cannot
reconciled with the basic Federal-Tribal relationship, and would
tantamount to a repudiation of tribes as governments.
I ELAnISHP oF TRIBAL GovERNwENTs To FEDERAL AGEoCIEs
The relationship of tribal governments to the 55 agencies of the Fed-
I Government begins with the yearly receipt of the Catalog of Fed-
Domestic Assistance Programs from the Executive Office of the
iFederal Aid to State and Local Governments. Special Analysis, Office of Management
: Budget, and Federal Domestic Assistance Catalog.
SA Study of Federal Indian Domestic Assistance Programs National Council on Indian
ortunity, Office of the Vice President; February, 1974; Summary nnfludings.
J(55)







56


President. Office of Management and Budget. States and other units
of local government receive this catalog too, however, for these gov-
ernments, there are special, well-staffed offices designated to go through
the catalogs 1.000 plus pages (1975 catalog) and whose responsibility
it is to determine which of the some 1.030 Federal programs are ap-
plicable and for which that government is eligible.
A recent Government Accounting Office report stated:
The Federal government has no single source of reliable and complete informa-
tion on the type and availability of Federal assistance programs for state and
lo.al governments. Beausp of the proliferation of such programs, state and local
governments have devoted considerable time and effort to identifying, keeping
informed of, and availing themselves of Federal assistance. Despite these efforts,
many state and local officials do not learn of available Federal assistance or learn
of it too late to apply.
The. Government Accounting Office report goes on to say that to
keep abreast of changes in the Federal programs, many cities and
states maintain representatives in Washington to rely on private con-
sultants, often at a considerable expense; and there is still no assurance
that all sources have been explored.
The process for Tribal Governments is a much simpler one. To begin
with. a recent study has shown that Indian tribal governments or
tribally-chartered organizations are eligible for direct services from
only 389 of the 598 programs analyzed.3 The study was undertaken to
identify tribal government eligibility for Federal programs because
the catalog frequently fails to specify whether the eligible popula-
tions of governments, organizations, or individuals includes tribal
governments or tribally-chartered organizations. Oftentimes, a tribe
nmav not learn that it is ineligible for a particular Federal program
until after the long, time-consuming and complex process of grant
application has been completed and the materials have been forwarded
to the agency concerned. Only in the rejection process, does the tribe
become aware that services provided by the program applied for, are
nnt directly available to Indian people.
The. absence of a well-financed bureaucracy to deal with the complex
Federal bureaucracy allows for a simpler process-the tribal govern-
ment does not isolate those programs for which it is eligible and proceed
with the grant application process, because the tribal government
simply cannot know wherein lie the statutory barriers to tribal par-
tinipation in Federal domestic assistance programs.
A n earlier study, the Federal Indian Domestic Assistance Programs
(FITDAP) Study, identified 78 Federal programs in which tribal gov-
ornmnents were participating, out of 600 Federal programs studied.
This finding pointed to the fact that the mere dissemination of the
Catalog to all federallv-recotrnized tribes was an insufficient effort to
inform tribal governments of the Federal programs and services that
were potentially available to them. Although the responsibility fo
informing tribes of the availability of Federal programs was tradi
t ionallv that of the Bureau of Indian Affairs, the results of the FIDA.
stilv Thowed this informational need was not being fulfilled.
These findings were confirmed by the feedback received from India
trihs gwhen a major effort was begun in 1972 to improve the deliver,
rf rvices to state and local governments and to the general public
known as the President's Federal Assistance Review (FAR) program
SStndy of Sttint nry Barriers to Tribal Participation In Federal Domestic Assistanc
Programs. II, Executive Summary.






57

I In response to the problems which surfaced as a result of the FAR
program, a study of delivery of Federal programs and services to all
b federally recognized tribal governments was undertaken by agree-
ment of the Secretary of Interior and the Associate Director of the
SOffice of Management and Budget. The study, Inter-agency Staff
SStudy Report of Federal Field Organization for Indian Programs,
was originally intended to be only a reconnaissance study, but as the
study evolved, sufficient material was developed to support specific
action recommendations.
SStatement of the problem involved in the delivery of Federal pro-
grams to tribal governments and tribally-chartered organizations was
Detailed in the Summary of Findings of the Inter-agency Staff Study
Report of Federal Field Organization for Indian Programs. It stated,
"The Federal Government, viewed from an Indian tribe, can best be
Described as a maze of confusion, contradiction, inconsistency and
fragmentation. The problems of state and local government, in relating
to Federal programs, were the basis for the President's directives
of March initiating the FAR program. These problems are multiplied
for Indian tribes by the history of change in the Federal policies
towards Indians, by special organizational arrangements for handling
Indian programs, and by the lack of knowledge and understanding of
Indian tribes on the part of Federal program officials. This has
resulted in many Federal actions which are interpreted as deliberately
detrimental to Indian progress. Progress in developing program
Improvements under the FAR program has produced actions that are
frequently not applicable to Indians, apparently through oversight or
lack of knowledge. Regional councils and their emerging coordination
Role were virtually unknown to Indian tribes, and Councils had shown
Little interest in Indian problems, in spite of the President's statement
Sin his 1970 Indian Message that 'The First Americans-the Indians-
Sare the most deprived and most isolated minority group in our Nation.
SOn virtually every scale of measurement-employment, income, edu-
| cation, healthl--the condition of the Indian people ranks at the
bottom.' There is no organized, usable body of knowledge accessible
to Indian tribes as to Federal programs that are available to them.
I When information is made available, they find that the instructions
, and guidelines were developed on a nationwide basis for use by state
I and local governments. Consequently, the tribes are frequently requi red
Ito organize themselves differently, work through undesirable channels,
Sand sometimes give up control of a tribal function in order to partici-
Spate in specific programs. The net result today is that Indian tribes,
when considering the changes underway or planned for the Federal
h Systems under the FAR program in the light of their past experience,
are forced to conclude that they have much to lose and little to gain." *
I The relationship of Tribal Governments to the agencies of the Fed-
eral Government is characterized by a pervasive lack of awareness and
Understanding on the part of all parties concerned. The tribal govern-
ment is uninformed of the Federal programs available to it. and ill-
equipped financially and administratively to pursue Federal grants
:for domestic assistance on a competitive basis with state and local
^governments. The Federal agencies, in turn, have failed to acknowl-
.. *'Tnter-Ageney Staff Study Report Federal Field Organization for Indian Programs,
pp. 4-6, Summary Findings.
' ii::






58


ed.,o treaties, Federal policy, and court decisions which have clearly
established the independent political status of tribal governments.
Recognition of tribal governments as eligible for direct access to all
relevant, Federal domestic assistance programs is the only Federal
policy lo,,icallv consistent with the basic policy upon which the Fed-
eral-pidian relationship is based. The practice of Federal administra-
tive agencies in either ignoring Indian tribes, or forcing them through
state agencies for funding, is a classic example of what Kenneth Davis
perceives as the worst abuse of Federal discretionary power-subvert-
inr the intent of Congress.5

B. ACCESSIBILITY TO FEDERAL PROGRAMS AND SERVICES
On June 30, 1976, Circular A-85 of the Office of Management and
Budet was revised to provide tribal governments with the same op-
porttinity to participate in the preparation of Federal regulations as is
provided to state and local governments.
Circular A-85 provides:
That the chief executives of State and local governments (and tribal govern-
ments) will be given a reason:mble opportunity to comment on major proposed
F.l,,ral rules, regulations, standards, procedures and guidelines (hereafter called
revulafinon), major interagency agreements concerning program operations and
major organizational changes, any of which have a significant and nationwide
effect on State and local (and tribal) governments.
1-lopefully, the revision of Circular A-85 will for the first time ex-
pand the participants involved in the decision-making level of the
Federal domestic assistance delivery system to include tribal govern-
ments. Attempts to enhance the accessibility of tribal governments
to anyv part of the Federal service delivery system in the past have been
discouraging.
A workable approach to overcome the lack of awareness of available
programs, and to improve the delivery of services to tribal govern-
mentq and its success. is described below.
In the Summary of Recommendations of the 1972 Inter-agency Staff
Study Report of Federal Field Orraniization for Indian Programs,
the study staff recommended that "Regional Councils should give a
hiigh priority to Indian problems by developing their Indian Task
Fores and encouraging minteragency coordination at the program
level." 6 The Indian Task Forces within each Regional Council were to
lie composed of representatives from each Federal agency delivering
e-rvices to Indian tribes, with the designation of a lead agency to act
as liaison with the tribal governments in that region. It was the re-
spon'ibility of the Regional Council Indian Task Forces to coordi-
nate with the Bureau of Indian Affairs in the effort to inform tribes of
tlhe Federal programs and services available to them, and to facilitate
the delivery of services to tribal governments.
In an attempt to assure the realization of these goals set forth for
the Rocgional Councils, a memorandum was issued by the Office of
Management and Budget to the Regional Council Chairmen on March
1 5, 1.!72. concerning Indian reservation development. The memoran-
dum informed the Regional Council Chairmen of a new thrust pro-
S"Dkicre'ionary Justice," Kenneth Davis, Louisiana State University Press.
6 IIter-Agenc y Staff Study Report Federal Field Organizations for Indian Programs,
p. 7, Sumnimary of Recommendations.






59


gram announced by the Secretary of Interior and the Commissioner of
Indian Affairs to be called the Reservation Acceleration Program
(RAP). The memorandum suggested that the Federal Regional Coun-
cils provide guidancee and technical assistance to tribes on regulations,
standards, criteria, or other requirements of the member agencies, and
consider how existing and available funds within each program area
can be better related to tribal priorities." 7
The Reservation Acceleration Program was begun in January, 1972,
and was to involve 12 tribes chosen from the 35 tribes participating in
the Economic Development Administration's Selected Indian Reserva-
tion Program. Under RAP, a tribe would develop a comprehensive
plan with an associated projected budget for the implementation of the
plan. The plan would then be reviewed by the BIA Agency office, the
BIA Area office, and again in Washington. At each of these levels,
negotiations with the tribe would occur to determine the manner in
which adjustments in the BIA budget at each level might better re-
spond to tribal priorities outlined in the RAP plan.
Following this procedure, the tribe would submit its RAP plan to
the Federal Regional Council where representatives from each agency
would work with the tribe and the BIA Area Director acting as liai-
son, to assist tribes in the review of RAP plans, in developing applica-
tions for financial assistance from Federal agencies, and to continue to
provide technical assistance to tribes and support in follow-up on
pending assistance applications. The goals to be fulfilled by the Fed-
eral Regional Councils in their participation in the Reservation Accel-
eration Program were outlined in a memorandum of June. 1972, from
the Office of Management and Budget to the Federal Regional
Councils.
Goals
S1. To render support to the Reservation Acceleration Program, spe-
cifically by providing counsel and suggestions on how the tribes might
achieve RAP objectives.
2. To initiate procedures to enable the FRC (Federal Regional
Council) to maintain contact with RAP reservations.
3. To assist the Department of Interior in monitoring the impact.8
The development of comprehensive tribal plans and the coordination
with the Federal Regional Councils under the Intergovernmental Co-
operation Act of 1968, enabled tribal governments to participate in and
directly impact the improvement of delivery of Federal programs and
services for the first time.
The Reservation Acceleration Program failed. The responsibility for
the failure of what could have been a great step forward for tribal
governments lay mainly with the inability of the Bureau of Indian
Affairs to implement the program. An interview with an officer of the
Intergovernmental Relations and Regional Operations Division of the
Office of Management and Budget revealed the following causes of the
Reservation Acceleration Program failure:
S1. BIA mismanagement.-The Bureau of Indian Affairs announced
the Reservation Acceleration Program without prior notification to
7 Memorandum from Office of Manageemnt and Budget to Regional Council Chairmen;
March 15, 1972; Frank C. Carlucci, Chairman, Under Secretaries Group for Regional
Operations.
'Memorandum from Office of Management and Budget to Regional Councils; Sune 27.
11972; Suggested further guidance for FRC involvements in the RAP program.




wRF


60

the Regional Councils or the tribes selected for the pilot project Pro-
cedures for implementation were not well thought-out prior to the
notification to the tribes and Regional Councils.
2. BIA budget.-It was determined that the Bureau could not shift
between line items in the Bureau budget without the approval of the
Secretary of Interior and the Office of Management and Budget. The
BIA could not adjust its budget at the Agency, Area, and Federal
levels specified in the negotiation process of the RAP plan to reflect
tribally-establiPhed priorities. Negotiations thus failed in the initial
stages, before the Federal agencies of the Regional Council ever got
involved.
3. Reservation Acceleration Program was not well thoWght-out.-
Federal grant programs had already been allocated for the upcoming
fiscal year. Member agencies of the Federal Regional Councils could
not offer any assurance to tribes that funds would be available in the
following fiscal year as funds had not yet been appropriated.9
The concept embodied in the Reservation Acceleration Program, of
allowing tribal governments to have direct, face-to-face access to the
Federal agencies represented at the Regional Council, seemed to be an
enlightened one. Indeed, in the survey of Tribal Governments and pub-
lic hearings conducted by the Task Force, both tribes and agency repre-
sentatives expressed a preference for this kind of direct interaction.10
Clearly, when members of the tribal government and representatives
of the Federal agencies sit down at the same table, cultrual differences
and bureaucratic complexities can enter an arena which enhances
mutual understanding and meaningful communication.

C. BARRIERS TO TRIBAL PARTICIPATION IN FEDERAL PROGRAMS
The most insurmountable barriers to tribal participation in Federal
programs are statutory barriers. These barriers lie in the authorizing
legislation of each Federal program and are the most difficult to amend
for tribal government eligibility in the direct service population. A
Study of Statutory Barriers to Tribal Participation in Federal Do-
mestic Assistance Programs has been recently released, a summary of
which is illustrated in Figure One. Each table represents the status of
tribal governments in relation to the programs offered under each
agency and Department. Programs enumerated under Table 1, are
those Federal programs in which state government, local government,
another type of program applicant, or multi-tiered system receives
funding from a Federal agency, and there is no apparent barrier in
the statute which might prevent an Indian Tribal Government or trib-
ally chartered organization from dealing directly with the Federal
agency on the same basis. Table 2 represents those Federal programs in
which Indian Tribal Governments or organizations are apparently eli-
gible for assistance, but some form of state involvement is required by
tle statute in the form of governor's sign-off, compliance with a state
plan or other arrangement. Table 3 indicates those Federal programs
in which an Indian Tribal Government, tribally-chartered public or
private organization appears to be ineligible under the terms of the
'ritervrew with Sydney Freeman, Intergovernmental Relations and Regional Opera-
tions DitvISion, Office of Management and Budget, July 9, 1976.
LAppendix I; Chapter IV.







61


-statute. Examples of this include a requirement that an organization
-comply with state law, hold a state charter, or be an organ of state
govenmment. The numbers in parentheses after each agency indicate
the number of Federal programs offered by each agency.11
FIGURE 1

TaMble I Table 2 Table 3 Eligible for-


U.S.'Demqtmept of Agriculture:
Agnculral Research Service (1).----. ------- (1)----
AnMaml and Ptant Health Inspection Service (3) ---------- (1)
Aricubtural Stabilization and Conservation Service (13)---
Commodity Exchange Authority (1)---------------------
Akratuml Marketing Service (5)_ (1)
Uprati State Research Service (4)-------1 2
Fommic Research Service (1)- ------- ---------------
Fmer Cooperative Service (1)- ---------- -------
Famers Heine Administration (21)---- --------- 9 2 1
umdd Crop Insurance Corporation ()-- -------------------
IuIM Service (1) 1
Fooda.dfldtrltin Service (8)-- ------------7 1
'EumstSevicw(10) ------------------------------- 3 8
National Agricultural Library (1)-- ---------------
Office of Communication (1) ---.. -------.---------... -------.
PadKMs and Stockyards Administration (1)
RainElectrifiMtion Administra ion O) ----- ------------- 3
&o ComeaNtion Service (8)__- ---------------1 2
SbtaN porting Service(1).. -----------------


1I LI


LU


I Depabment of ommewce:
SBuru of Cemsu (7).--- ------------ 4 ----
Domestic and International Business Administration (6)-------. 4
Eonomic Development Administration (10)...----. .....- 6 1 1
NatiO Ocemnic and Anmospheric Administration (15)---- 5 2 5
iMaritimeAdminlstratiot (10)----- -- 2 --.... 1
Natioml Bureau of Standards (6)- _- ----- 3 1
Nab'on Technical Information Service ()-. ----- ---- 1
Olre of Mimoity Business Enterprise (1)--------- 1
S Pttamd Trademiark Offlice (1)------ --------- -----
lLS.TravelSencel)...----- ---------- 1 ----------
S27 3 8:
SOepfrtmetof O : Defese:
i ef Supply Agency (1) I ---- ---
Deptlment of Army, Office of Chief of Engineers (11)- 3 ._ 8
DMeae Civil Preparedness Agency (16)---- ....... -.... 3 5 5
DqepreMt of Army, National Guard Bureau (1)...--. 1!
S U.S. Soldiers' and Airmen's Home (1)- ..--- --------------- ----- -
Oflice of Assistant Secretary (I installations and Logistics) (1) ... 1
Secrebtrim of Military Departments (1).-------------- 1 -----
S Total9 5 14
SOepartment of Health, Education and Welfare:
S PuHlic eltt Service (92)...... ----------------------------- 74 8 10
1 OTsof Education (105))------------------------------- 56 5 27
National Institute of Education (1) --- ---- --- ----- -------------------
Ofltce of the Secretary (20)----------------------------- 7 9 5
Social & Rehabilitation Service (9) ---- ---------------------------- 7
Social Security Administration (8)..--------------- --------------- -----
Public Health Service 11 (42)..------....----------------------- 42 ---- ----


S Totl......--- ............-......-- .---.-....


1800


I out of 1.
1 out of 3.
1 out of 3.
0 out of 1.
0 out of 5.
2 out of 4.
0 out of 1.
I out of 1.
11 out of 21.
0 outof 1.
Do.
7 out of 8.
3 out of 10-11.
0 out of 1.
Do.
Do.
0 out of 3.
1 out of 8.
0 outof L
28 out of 85.


4 out of 7.
4 out of 6.
7 out of 10.
7 out of 15.
2 out of 10.
3 out of 6.
1 out of 1.
Do.
0 out of 1.
1 out of 1.
27 out of 58.

lout of 1.
3 out of 11.L
8 out of 16.
0 out of 1.
Do.
Do.
Do.
14 out of 32.

82 out of 92.
61 out of 105.
1 out of I.
16 out of 20.
1 out of 9.
0 out of 8.
42 out of 42.


23 49 203outof 277.


V eparTment of Housing and Urban Development:
Federal Insurance Administration (4)......-------------......-.......----. 1 0 out of 4.
leasingn Production and Mortgage Credit/FHA (46)............ ------------ 16 2 1 18 out of 46.
Community Planning and Development (7) .-----------------. 5 1 1 6 out of 7.
,Office of Equal Opportunity in Housing (I) -..--------------.....--------------------.............. 0 out of 1.
01m of Policy Development & Research (10)................. 1 ----------------. I out of 1.
Ihosingi Management (1).........----------......---.............. 1 ------------------- Do.
Sedera Disaster Assistance Administration (2)------------------------..........................1 I out of 2.


Total-........-.-.....--......-.. ...--...........


4 27 out of 62.


u Study of Statutory Barriers to Tribal Participation In Federal Domestic Assistance
Programs, American Indian Law Center for Native American Technical Assistance Corpo-
ration.






62

FIGURE 1I-Continued
Table 1 Table 2 Table 3 Eligible for-

Department of Interior:-
Bureau of Indian Affairs (34).......................--------------------------------------------- 34 out of 34.
Bureau of Land Management (13)-.....----------------------- -8 3 8 out of 13.
Bureau of Mines (2).... ...................---.--------- 2 ---------------- 2 out of 2.
Mining Fnforcoment and Safety Administration (3)------------ --2 1 2 out of 3.
Bureau of Outdoor Recrp;tion (2)...-----.....------.--------------------- 1---------I out of 2.
Bureau of Reclamation (4)----.........--------. --------------------------------- 3 0 out of 4.
U.S Fish and Wildlife Service (2)...------....------------------- 7 3 7 out of 12.
Geolopical Survey ()...------..........-- ....----------------- ---------- 3 1 out of 5.
Indian Arts and Crafts Board (1)-----.......----.... ----------------------------------I out of 1.
N tonal Pa-k Service (11)---.....-------------------------- 6 --------- 2 6 out of 1i.
Office of Water Research and Technology (4)-......------ 1 ------------- 2 1 out of 4.


Total------..........----... -------------... -------


17 30 out of 91.


Department of Justice:
Drup Fnforcemrent Administration (5)-----.......-....----.-------------4 1 4 out of 5.
Civil Rights Division (7).--------...........-----------------------1. ---------------- 1 out of 7.
Community Relatons Service (1)---.....--- ---------------- 1 ----------------- out of 1.
Federal Bureau of Investigat;on (6)......------------------------ 5 ---- ------------ 5 out of 6.
Irrigation and Naturali7at'on Service (1)....------------------------------------------0 out of I.
Law Enforcement Assistance Administration.------------------ 10 4 1 14 out of 15.
Bureau of Prisons (1).-.--...--------- .. ----------..-------------- 1--------- out of 1.


Total..-.--.-- --- ....-...---- -----..----


2 26 out of 35.


Department of Labor-
Bureau of Labor Statistics (5) --- ------------------- --------- 5 5 out of 5.
Labor-Management Services Administration (4).--------------- 1 --- 2 1 out of 4.
Manpower Administration (18)---. ------------.. -- 13 1 3 13 out of 18.
Employment Standards Administration (8)---------------------------- -------- 1 0 out of 8.
Bureau of International Labor Affairs (1)-----------.. ----...----------- ----0 out of 1.
Occupational Safety and Health Administration (1)---- 1 I------------ outof 1.


Total -----------------------------------


6 21 outof37.


Department of Transportation:
United States Coast Guard (3)---------------------------- 1 ---- 1 out of 3.
Federal Aviation Administration (4)u---------- -------- 3 ---------------- 3outof 4.
Federal Highway Administration (2) -- ---------------- 2 0 out of 2.
Federal Railroad Administratbon (a) ......................... 1 out of 4.
Urban Mass Transportation Administration (8)---------------- 3 5 3 out of 8.
Office of Pipeline Safety Operations (1)----- --------------------------------- 1 0 out of 1.


Total_-------------------------------------------- 8
Small Business Administration (24)..... ------.........--................


0 10 8 out of 23.
24 --- 24 out of 24.


Environmental Protection Agency:
Office of Air and Waste Management (12)..........--------------------........ 9 1 3
Office of Water and Hazardous Materials (16).- --- --12 2-----
Office of Research and Development (7).-- ---.... 7-------------
Office of Planning and Management (2).------ -------- I ---1-- I
Office of Regional and Intergovernmental Operations (1)-------------------


Total.
Ameri votalu ........................................o
American Revolution Bicentennial Administration (3)__ --


29
2


Regional Commissions:
Appalachian Regional Commission (15)... ....----------------
Coastal Plains Regional Commission (3). -------..... -... -----..-...--
Four Corners Regional Commission (3)....- ------............. ..........
New England Regional Commission (3).........
Ozarks Regional Commission (3).----------------- ------.-....-
Upper Great Lakes Regional Commission (3)---....-----...-----------.....
Old West Regional Commission (2). -----..... -------
Pacific Northwest Regional Commission (2).. ........


9 6
3 .
3 .
3 -------


2 -------
2 -------
2
2


Total_._......... ..--.---.-.... ...-....._. ..


10 out of 12.
12 out of 16.
7 out of 7.
I out of 2.
0 outof 1.


Independent Agencies:
ACTION (9)........................................--------------------------------------. 7 2 --- 9 out of 9.
Civil Service Commission (11)--- ----------- --7.----------------. 7 7 out of 11.
Community Services Administration (7) ..-...... .. ..--------------- 4 1 4 out of 7.
Energy Research and Development Administration (17). 9 ---------------- 9 out of 17.
Equal Employment Opportunity Commission (4)----------- 3 ---------- ------3 out of 4.
General Services Administration (10)-..........8.... 8 8 out of 10.
Government Printing Office (2).. ----------------------- ------------------- outof2.
Interstate Commerce Commission (2)------------------------------- Do.
National Credit Union Administration (1)--.----------------.......- 1_I out of 1.
National Foundation on the Arts and Humanities (29):
National Endowment for the Arts (12)-------------- 11 1 11 out of 12.
National Endo -.ment for the Humanities (17)--...---------- 13 -- -13 out of 17.
National Science Foundation (13)... ------------.......------------- 13 ----------------13 out of 13.
Nuclear Regulatory Commission (1).... ........ 1 ----------------- outof 1.
President's Committee on Employment of Handicapped (1) -- ------- 1 0 out of 1.
Veteran's Administration (22)-----.................... 6 6 6 out of 22.
Water Resources Council (1)..------------ --...... .... .. .... 1 I out of 1.


Total .--------- - - -2 o 1 79


6 29 out of 38.
1 2 out of 3.


9 out of 15.
0 out of 3.
3 out of 3.
Do.
Do.
Do.
Do.
2 out of 2.


6 28 out of 34.


6 12 79 out of 128.






63


Thus, out of 598 Federal programs displayed in Figure 1, tribal
governments are eligible for direct access to only 389 programs. Task
force findings confirm these facts, though the tribes surveyed had to
go through a much more laborious process to discern their inaccessi-
bility to Federal domestic assistance programs. Overwhelmingly, tribes
purveyed expressed the desire that these statutory barriers be removed
and that Tribal Governments became eligible to be the prime sponsor
for all Federal programs.12
The obstacles to tribal participation in Federal domestic assistance
programs are not solely statutory barriers. Many tribes who are receiv-
ing Federal services have expressed difficulty in meeting the require-
ments of Federal programs which were designed for state and local
governments.13 Essentially, there has been only a minimal effort to
scrutinize Federal programs for the flexibility of program standards to
meet the needs of Tribal Governments. A tribe may be eligible to apply
for Federal programs and receive monies, but the regulations which
determine the manner in which the grant is to be administered, negate
the utility of services to be received.14

1. GRANTS WITH COST-REIMBURSABLE OR MATCHING REQUIREMENTS
Originally designed for Federal grants to state governments, these
stipulations require a tribe to provide the initial capital for a project
to be undertaken, without regard to the well-documented and widely
recognized lack of financial resources available to Indian tribes. Thus,
in order for a tribe to receive monies once its grant application has been
approved, the Tribal Government must secure a loan from a bank at the
going, soaring, interest rates. State governments, with their substantial
sources of revenue (state and local governments have allocated about
10 percent of their own resources to meet matching requirements for
Federal grant monies)15 experience little difficulty in complying with
such regulations. But because most Indian land is held in trust by the
Federal government, the tribe cannot even offer its property as col-
lateral, and oftentimes, must secure the approval and support of the
BIA in order to obtain a loan. This procedure necessitates the perpetua-
tion of Bureau control over tribal actions and impinges upon the
sovereignty of the Tribal Government, which once again finds itself
beholden to the whim of the agency some have termed "Our Brother's
Keeper".'6
2. FORMULA GRANTS BASED ON POPULATION
It is a little known fact that 82.9 percent of the Indian tribes in the
United States have populations of less than 1,000 members.17 It is,
however, a widely-known fact in Indian Country that population cor-
responds inversely to need. It is precisely these small tribes, which face
imminent extinction, who suffer when allocations are determined on
the basis of population. Given population bases which are so small that
apportionment of funds becomes meaningless in responding to the
need, Tribal Governments are thrust into the position of tapping every
2Appendix I;: Chapter IV.
I Appendix I; Chapter IV.
SAppendix I1: Chapter TV.
Senate bill S. 3281-Federal Proram TInformation Act.
M "Our Brother's Keeper: The Indian in White America," Citizen's Advocate Center,
1969, New Community Press.
17BIA Tribes in Order by Population: 1973 Revenue Sharing; or Equivalent for Non-
Revenue Sharing; or State Alternate for Oklahoma.






64


possible som-rce of revenue to compensate for the meager sums and serv-
ices offered by any one Federal program which allocates funds on a
forniula basis. The magnitude of this problem has been illustrated in
countless examples,18 but the most recent allocations based on popula-
tion-monies to support and strengthen tribal governments under sec-
tion 101 of the Indian Self-Determination and Educational Assistance
Act-find the Flandreau Sioux Tribe of South Dakota receiving a total
of $2000).00 for fiscal year 1977 to support its tribal government, while
the Navajo Tribe, with the largest population base of any tribe, will be
receiving, $646.560.00 for the same fiscal year.19
This problem is further compounded by the necessity that all Fed-
eral agencies comply with Office of Management and Budget Circular
A-46, which requires that all Federal program funds allocated on a
formula basis be based on 1970 census data.20 Many tribes have voiced
the complaint that 1970 census data was inaccurate in its initial count,
with the inaccuracy greatly magnified in 1976. For the Oneida Tribe
of Wisconsin, who sets its enrolled membership at 7,000 members
while the Bureau figures designate 1,497 members for purposes of
section 104 allocations, this will mean a difference of $185,150.00 in
monies to be received by the Oneida Tribe for support of its tribal
government.21

3. LACK OF UNIFORMITY IN FEDERAL PROGRAM FUNDING
CYCLES AND SHORT-TERM APPROPRIATIONS
An integral factor in the effectiveness of any government depends
on the ability of the government to develop short- and long-range plans
for its resources. However, a great deal, if not all tribal government
planning and resource allocation, functions are dependent upon the
actions of the Federal Government. Many of the tribes interviewed in
tlhe task force's year-long study of tribal governments were found to
have few sources of tribal income.22 Usually, there is not even enough
money to salary a full-time tribal chairman, let alone the tribal coun-
cil, or the much needed position of a tribal planner or administra-
tor.23 Occasionally, a tribe is able to obtain a grant from the Economic
Development Administration to retain a tribal planner. Even then, it
is often impossible for the tribe to acquire the funds necessary to de-
velop their natural resources, where resources exist. Where there are
funds and resources to be planned for, and the administrative and
planning capability in place, reliance is still heavily upon Federal
funds for the realization of any efforts toward development. This re-
liance makes tribal governments a great deal more vulnerable to the
problems created by the lack of uniformity in funding cycles and
short-term appropriations of which state and local governments com-
plain so frequently.
Senator Jerome T. Hart of Michigan, in a statement issued in a
Joint1 l-Ieari before the Subcommittee on Intergovernmental Rela-
tions of the Committee on Government Operations and the Subcom-
mittee on Administrative Practice and Procedure of the Committee
on, t1e Jiudiciary, described the problem for his State:
S Appendix I: Chapter TV.
"I11 II)111oc:Itions for Ficnal Yenr 1977 under Section 104 of P.L. 93-638.
3C'rrulnr A--46 Revised, Office of Management and Budget.
111A allocations for Fiscal Year 1977 uuder Section 104 of P.L. 93-638.
S Appendix I; Chapter III.
"A\ppendix I; ChaIpter III.


C00 -







65


During our budget cycle we plan numerous programs on the assumption that
federal funds will become available. Many times, however, we have taken action
only with verbal assurance from a Federal agency that the funds will material-
ize. If for some reason the money is not available at the beginning of our fiscal
year, we have the following alternatives: (1) continue the program and fund
it with state monies and hope that the federal funds will materialize, (2) delay
the implementation of the program, (3) cancel the program. Other problems
stem from the fact that grants may begin or end at any point in a year. Many
times we receive guarantees that the administration cannot fulfill or later re-
scinds. The delay of federal funds places us in the position of having one fiscal
year for the grant program on a state basis, and then having a different fiscal
period for the federal funds' portion of that same grant. When you come to the
second year funding, it becomes very difficult to explain to the principals what
the total program will be, how long it will run, and the amount of the state/
federal match."
This statement does indeed reflect an administrative nightmare, but
the problem comes down to a much more basic level-sometimes a mat-
ter of survival-for Indian tribes. The lack of uniformity between
agencies in funding cycles means that a tribe can secure HUD 701
monies to construct housing for tribal members, and then have to wait
until the next funding cycle to obtain IHS services to provide water,
plumbing and a sanitary disposal system for sewage.20 Because of the
critical shortage of housing on many reservations, tribal members
have the choice of moving into a house with no water or plumbing, or
remaining outside for the winter and risk freezing to death.26 Cer-
tainly the inability to perform any comprehensive planning due to
variations in funding cycles can, and in many cases does, have dis-
astrous effects upon Indian people, and severely limits the services a
tribal government can provide for its members.
Short-term appropriations, particularly one-year funding, has
equally deleterious effects on the reservation and the lives of its in-
habitants. Tribal governments are frequently looked upon as "bad
investments" by Federal agencies.27 Monies are made available on a
short-term basis, often as though any grants made are for "pilot-proj-
ects"-not to be taken seriously by anyone outside of the exterior
boundaries of the reservation. Make-shift holding centers for orphaned
children are thrown up while the tribe obtains a grant to build a per-
manent orphanage, only to have funding discontinued before beds,
medical supplies, food, and child-care personnel can be secured. Chil-
dren must be sent off the reservation to live with non-Indian families
until funding can be secured from another source to fully equip a
permanent facility. In the meantime, families are torn apart, children
lose contact with their culture, jurisdictional battles ensue over cus-
tody once the child has been forced to leave the reservation.28 These
are not merely administrative nightmares.

D. FEDERAL PROGRAM REQUIREMENTS WVIICH INFRINGE UPON
THE SOVEREIGNTY OF TRIBAL GOVERNMENTS
The focal concern of the Tribal Government Task Force and the
64 tribes surveyed by the task force is that eligibility requirements
2Statement concerning Federal Aid Reporting Systems. Senator Jerome T. Hart, Joint
Hearing before the Subcommittee on Intergovernmental Relations of the Committee on Gov-
ernment Operations and the Subcommittee on Administrative Practice and Procedure of
the Committee on the Judiciary, March 5, 1976.
5 Appendix I; Chapter IV.
2 Appendix I ; Chapter IV.
27Appendix I: Chapter IV.
S Appendix I; Chapter IV.







66


of Federal programs recognize tribal governments as equivalent to
state governments for the direct access to Federal domestic assistance
programs.
Tlie relationship of Indian tribes to the Federal Government was
established by treaties between the two parties-recognizing tribal
governments as sovereign nations with inherent rights of self-govern-
mient. This relationship has been reaffirmed in Federal policy and court
decisions which have upheld the definition of tribal sovereignty as the
intent of Federal policy. In accordance with this established defini-
tion. any arrangement which forces a tribe to come under the jurisdic-
tion of state courts or governments is an infringement on the sover-
eig1-tv of tribal 'overnmnents.
However, regulations and statutes of some Federal programs have
failed to recognize the independent political status of tribal govern-
ments by imposing administrative conditions upon the receipt of Fed-
eral program monies which require tribal governments to deal with
the state. It is these conditions which tribes surveyed by the task
force luiannnimously oppose.29 Of these Federal program regulations
or eligibility requirements which force tribes to deal with the Fed-
erail Government through the state, there are three major tribal-state
relationships which are in direct conflict with Federal policy and the
concept of tribal sovereignty. These relationships are outlined below
with examples of Federal programs which violate the sovereign status
of tribal governments.

1. ELIGTTVLITY REQUTRMENTS WHICH REQUIRE TRIBES TO FORM CON-
SORTIUMS OR JOIN INTER-TRIBAL ORGANIZATIONS TO BECOME ELIGI-
BLE FOR FEDERAL PROGRAMS
The necessity to form consortium or join inter-tribal organizations
to qualify for Federal grants is most often due to a lack of a sufficient
population base to be served by a Federal program. Small tribes par-
ticularly, 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 communication necessary for such
an alliance. More importantly, the principle of sovereignty recognizes
the integrity of a sovereign government to form associations or al-
liances only upon the discretion of the sovereirn, and not as a function
of the administrative requirements of another governmental unit.
Thus, eligibility requirements such as Section 96.42 of the Compre-
hensive Employment and Training Act (CETA)30 which requires that
a tribe must represent, at least 1.000 persons, immediately places 82.9
percent of Indian tribes under the condition of having to form con-
sortiums or inter-tribal organizations to become eligible for CETA
funding, and is in clear violation of the principle of sovereign-chosen
alliances.
Appendix I: Chanter IV.
10 Public Law 93-201 Sec. 96.42.







67


B. FEDERAL PROGRAM FUNDS WHICH REQUIRE STATE PASS-THROUGH OR
SIGN-OFF.

There are a number of Federal programs which fall into this cate-
gory, and a far greater number of problems stemming from this proc-
ess. Requirements of state pass-through or sign-off place the tribal
government directly under the control of thle state, and more than
any other Federal program requirement, infringe upon the sov-
ereignty of tribal governments. One example of a Federal program
which places tribal governments under state control is the greatly
opposed title XX.
Title XX is a 1974 amendment to the Social Security Act which
pertains to the area of social services funding. The Department of
Health, Education and Welfare provides 75% matching funds to the
states with the responsibility for the delivery of services delegated
'to the states. Within the broad policy goals provided for in title XX,
states are given virtually complete discretion to determine what kinds
of services they will provide and the recipients eligible for such serv-
ices. In the determination of eligibility for public assistance, Indian
trust income per capital payments derived from tribal trust resources
have not been considered an exempt resource by the states. This is a
violation of treaty and trust status of such monies. To compound the
problem, the BIA and the Indian Health Service (IHS) have denied
social services to tribes in P.L. 280 states maintaining that the tribes
are receiving social services from the state under title XX.31 The
state, on the other hand, can maintain that it is the responsibility of
IA and IHS to provide social services to the tribes. Tihe tribes are
caught in the middle. In a letter to Mr. Mel Tonasket, president of
the National Congress of American Indians, November 3, 1975,
the Papago Tribe of Arizona outlined its objections to title XX as
follows:
1 1. By granting States authority to set standards of qualification, the States
ire given the power to usurp or interfere with the sovereign powers of Indian
Tribes to govern themselves * *
; 2. 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 * *
S3. By granting States authority to set standards of qualification, the States
ire given implied power to force Indian Tribes to the jurisdiction of State courts
in order to meet such standards.
i 4. By granting the States authority to select the planning and funding agencies
'or Federal programs, the State is given latitude to select as such agencies either
Political subdivisions of the State or contract providers organized by special in-
larest groups, both of which represent constituencies inimical to, or in competition
with Indian interests."
SMany programs were cited by tribes surveyed as programs which
require the subordination of the tribal government to the state, such
iLs the Law Enforcement Assistance Administration programs,
Coastal Zone Management Program, food stamp program, and John-
SAppendix I; Chapter IV.
a Letter to Mr. Mel Tonasket, President. National Congress of American Indians from
ie Papago Tribe of Arizona; November 3. 1975.









son-O'Malley funds for education. In each case, the main complaint
was that tribes should not have to be beholden to the state under any
circumstances, since their relationship is with the Federal Govern-
mnient. In addition, tribes cited examples where Federal funds which
were supposed to pass-through the state directly to the tribal govern-
ment, were held by the state in escrow, and apportioned out to the
tribe on a basis the state deemed appropriate-the state often claim-
ing that they needed "proof" that the tribe could handle the money
and would spend it efficiently.33
In more than one instance, the state has misinterpreted its role
in the delivery system clearly going beyond Congressional intent ex-
pre.sed in authorizing legislation, and set itself up to be the final
arbiter over all tribal actions. In another case, a state held back monies
for education from the tribe until the state was satisfied that the tribe
was offering state-accredited courses in its school.34 When the state
investigators discovered that courses on Indian history and Indian
culture were available to the students, the state refused to "pass-on"
any of the remaining Federal funds maintaining that such courses
were not part of the traditional curriculum.35 Moreover several states
were cited as having taken a percentage of the Federal funds due to
tribal governments, to cover the costs of almhninistrating the monies.36
These illustrations, and numerous other examples offered by the
tribes surveyed, show the state to be in clear violation of any role
that was intended for it in the delivery of Federal domestic assistance
programs. No where does it call for states to determine how Federal
funds should be spent, and no where do the regulations of any Federal
program allow the state to appropriate funds for itself under the guise
of the state's judgment that monies are being spent unwisely by Fed-
eral grant recipients. The list of examples goes on and on, but the
obvious conclusion can be drawn immediately-states should be elimi-
nated from the delivery system of Federal domestic assistance pro-
grams to tribal governments.
The perpetuation of any state control over Tribal Governments,
absent Congressional approval, is a violation of the intent of Congress,
the tribe's inherent rights of self-government and the law.

3. INCORPORATION OF CHARTER UNDER STATES VS. RECOGNrMfON OF
TRIBALLY-CHARTERED ORGANIZATIONS
Implicit in the concept of inherent powers of self-government and
the recognition of the independent political status of tribal govern-
ments is the power of the tribal government to establish tribally
chartered organizations. This power has never been abrogated by
Federal law, and is indeed recognized in P.L. 93-638 in the definition
of the Indian Self-Determination and Educational Assistance Act:
'Tribal organization' means the recognized governing body of any
Indian tribe; any legally established organization of Indians which
is controlled, sanctioned, or chartered by such governing body * 3T
It is the conclusion of the task force that regulations or statutes
which require state incorporation or charter are clear usurpations
3 Appendix I; Chapter IV.
Appendix I; Chapter IV.
a Appendix I; Chapter IV.
Appendix I; Chapter IV.
SPublic Law 93-638 Sec. 4 Definitions.







69


of tribal powers recognized by Federal law and policy, and should be
deleted from all Federal program legislation and administrative
requirements.
Task force interviews identified two Federal programs in which a
number of tribes were participating that require state incorporation
or charter. Discussion of the problems surrounding each is provided
below.
Small Business Administration (SBA). Provisions of SBA grants
require a tribe to establish a corporation under state guidance before
grants will be approved. The requirement of state incorporation gives
the state discretion over the eligibility of Tribal Governments for Fed-
eral program funds and thereby impinges upon the sovereignty of
tribal governments.
Housing and Urban Development (HUD) 701 Program. The IHUD
701 Program makes planning and housing moneys available to
Indian tribes upon the establishment of a Housing Authority which
is required to be a distinct entity separate from the tribal govern-
ment. This presents an infringement upon tribal sovereignty because
Federal programs should not supersede the sovereignty of a tribal
government by dictating how that government must organize itself in
order to become eligible for a program. The more immediate problem
that stems from the establishment of a Housing Authority is that
there is no accountability to the tribal government. Indeed, grand
jury indictments have recently been handed down on the Navajo
Reservation because the Navajo Housing Authority made poor invest-
ments with the Federal funds it received, which resulted in the loss
of moneys to be used for the construction of homes on the reserva-
tion. The tribal council had no control over the actions of the Hous-
ing Authority because of the HUD 701 requirements.38 These require-
ments prevent the tribal government from assuring its members that
funds provided under this program will be appropriately spent, and
clearly violate the sovereignty of the tribal government.

E. POTENTIAL SOLUTIONS TO THE PROBLEMS CONFRONTING TRIBAL
GOVERNMENTS IN TRIBAL PARTICIPATION IN FEDERAL DOMESTIC
ASSISTANCE PROGRAMS
The following discussion provides potential solutions identified by
the Task Force to problems confronting tribal governments in their
participation in Federal domestic assistance programs:
1. FEDERAL PROGRAM INFORMATION ACT (SENATE BILL S. 3281)
The Committee on Government Operations, in stating the need for
S. 8281, concludes, "that beneficiaries of Federal grants programs have
a right to the full, fair and timely disclosure of program information
and that the Federal Government has a responsibility to make such
information readily available. In addition, enactment of the Federal
Program Information Act would be an important step in fulfilling
this responsibility and reducing the inequities and inefficiencies in the
present information system." s9
:Appendix I: Chauter IV.
SSenate bill S. 3281-Federal Program Information Act, Needs for S. 3281.


77-465---77-6







70

The Federal Program Information Act has the potential to solve
1nany of the problems tribal governments have traditionally encoun-
tered 40 in becoming aware of available Federal programs and deter-
l11ininf trib:ll government eligibility for such programs.
This act would create a Federal Program Information Center which
would be required to:
(1) Establish and maintain a data base containing comprehensive
information on all Federal domestic assistance programs;
(2) Develop 9nd maintain a computerized information system to
provide for the widespread availability of information contained in
d Ie dal a base by computer terminal facilities;
(3) Publish a catalog of Federal domestic assistance programs, con-
tainin.r information from the data base.41
If this proposed information sy-tem were constructed in a careful
and thoroU'zh manner, tribes could have access to the information
,.0hiitned in the data bse through a telephone call. Thus, if a tribe
wil-hed to build a school, a telephone call could secure a print-out
c;.ntaininz all information necessary to the undertaking of such a
project. The print-out would contain such information as to which
F'dertl programs the tribe is eligible to apply, in order to obtain
;. ,istnnce to construct a school; build a road to the school; provide
electrical, heating and plumbing facilities; secure trained educational
personnel; obtain textbooks and other instructional materials; pro-
vide desks ;,,nd other equipment; and even curriculum packages avail-
able through the computer facilities of the Educational Research
Information Clearinghouse.
However, it must be cautioned that in order to make such a data
base relevant to tribal populations, the barriers to tribal participation
in Federal programs must be carefully analyzed. Statutes and regu-
lations of each Federal program would have to be amended to specify
tribal eligibility in each program, otherwise retrieval of informa-
tion from the data base would be no more meaningful than the infor-
mation contained in the present Catalog of Federal Domestic
Assistance Programs which does not specify tribal eligibility or
ineligibility.

2. JOINT FUNDING SIMPLIFICATION ACT AND INTERGOVERNMENTAL
COOPERATION ACT OF 1968
The Joint Funding Simplification Act (P.L. 93-510) was enacted
by Congress on December 5, 1974,
"to enable State and local governments (and tribal governments)
and private, non-profit organizations to use Federal assistance more
effectively and efficiently, 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, pro-
gramin, or appropriation." 42
Although the regulations for tlhe act have just been issued (July 30,
1976), a number of local and state governments, as well as at least
one tribal government, have already made integrated grant applica-
tions as provided for in the act. As reflected in the title of the act,
40 Appendix I; Chapter IV.
'6 Senate bill S. 3281-Federal Program Information Act. Purpose.
2 Joint Funding Simplification Act-P.L. 93-510, Purpose.









the Joint Funding Simplification Act attempts to relieve the burden
Spoon Federal grant applicants of the complexities involved in secur-
ing grants from the 55 agencies of the Federal Government offering
11,030 Federal domestic assistance programs.
The great potential of the Act to resolve the problems confront-
ing tribal governments can perhaps best be described by the experi-
,ence of the Pima-Maricopa Tribe of the Salt River Reservation in
1 Arizona.
SThrough the concerned efforts of a few enlightened and persevering
individuals, the concepts embodied in the Reservation Acceleration
Program were finally realized in 1976 under the Joint Funding Sim-
jplification Act.
A five-year plan was drawn up for the Salt River Reservation,
combining 41 Federal grants into one integrated grant package. In-
stead of 41 different grants with a potential of 41 sets of eligibility
requirements, funding cycles, and reporting requirements, the tribe
deals with one Federal grant annually administered by HEW, desig-
nated as the lead agency to administer the grant. The process fol-
lowed in the formulation of the integrated grant package was as
follows:
1. Preliminary application.-The tribe develops a comprehensive
plan for the development and allocation of its resources. Tribal priori-
ties for development are clearly outlined in the comprehensive plan.
I The plan has two parts-a one-year plan for the upcoming fiscal
year, and a long-range plan, in this case, a five-year plan.
2. Negotiation wc;th the Burmeau of Indian Affairs.-The Salt River
Reservation has 11 BIA contracts. These contracts were negotiated
before the finalization of a comprehensive plan to determine what
portion of each tribal priority would be filled by BIA programs.
3. Review of comprehensive plan by the Federal agencies con-
cerned.-Alterations in the tribal plan would be made for one of two
reasons:
a. tribe is not eligible under Federal program statutes (where
eligibility is an administrative requirement, eligibility require-
ments which exclude tribes can be waived by the Federal pro-
gram grant officer)
b. not enough money available in grant program to accomplish
tribe's goals
4. Negotiation between tribe and Federal agencies concerned.-
Representatives from each Federal agency for whose programs appli-
cations are being made, meet with members of the tribal government.
Representatives from Federal agencies are those who are responsible
for a grant and have the authority to waive administrative require-
meints where necessary at the time the integrated grant is being
negotiated. All administrative requirements can be waived, but not
requirements which are part of a statute or Federal program act or
authorizing legislation of an agency.
5. Formal application.-A formal application is drawn up by the
tribe, accompanied by each agency's commitment for funds and
endorsement of the grant package.
6. Transfer of funds.-Each Federal agency transfers funds al-
located in the grant package to one agency designated as the lead
agency to administer the grant.







72


7. Letter of Cedit.-The lead agency issues one letter of credit to
a local bank. The tribe can draw upon the letter of credit at a specified
rate. In addition, the flexibility of funds within the grant package
allows grant recipients to spend funds in any order as long as alloca-
tions under each grant are spent appropriately at the end of the fund-
ing year. This eliminates the problem of different funding cycles.
8. Reporting requirements.-The tribe reports quarterly to the lead
agency on one grant program.43
In addition to great potential of the Joint Funding Simplification
Act for tribal governments, the technical assistance needed by many
tribes to build up the capacity to administer integrated grants is avail-
able through the Intergovernmental Cooperation Act of 1968.44 Tribes
can use thie monies allocated under Section 104 of the Indian Self-
Determination Act and Educational Assistance Act to provide the
matching share for salaries of government personnel (Civil Service
Commission matches) requested by the tribal government to provide
needed expertise and technical assistance, under the Intergovern-
mental Cooperation Act.
The Joint Funding Simplification Act enables tribes to have direct
access to Federal agencies, and to negotiate one integrated grant,
thereby alleviating a majority of the problems now confronting tribal
governments in their relationship to Federal domestic assistance
programs.

3. COOPERATION OF FEDERAL REGIONAL COUNCILS AND THE BUREAU OF
INDIAN AFFAIRS IN IMPLEMENTATION OF THE JOINT FUNDING SIMPLI-
FICATION ACT
The success of the potentials offered by the Joint Funding Simplifi-
cation Act is largely dependent on the cooperation of the Federal
Regional Councils and the Bureau of Indian Affairs in the negotiation
process described above. The development of Indian Task Forces with-
in each Regional Council called for in the Inter-agency Staff Report
of Federal Field Organization for Indian Programs could conceiv-
ably provide the mechanism for assuring the effective implementation
of the Joint Funding Simplification Act. The Bureau of Indian Af-
fairs, as the agency charged with overseeing Indian Affairs, should
be responsible for informing tribes of the options available to them
under the Joint Funding Simplification Act, and should encourage
tribal governments to enter into the negotiation process with full
support from the Bureau.

4. RECOGNITION OF TRIBAL GOVERNMENTS AS PRIME SPONSORS FOR FEDERAL
PROGRAMS AND RECOGNITION OF TRIBALLY-CHARTERED ORGANIZATIONS
The most important resolution to the problems confronting tribal
governments should be the recognition of tribal governments as equiv-
alent to state governments for the direct access to Federal domestic
assistance programs. This recognition should be in the form of a Con-
gressional resolution supported by an Executive Order establishing.
Federal policy which recognizes the status of tribal governments in
43 Process described by Sydney Freeman. Intergovernmental Relations and RegionaE
Operationsn Divisions. Office of Management and Budget
"42 U.S.C. 4201 et seq.






73


hbe Federal domestic assistance program deliver system.
d Once this Federal policy has been established, eligibility require-
jaents and administrative requirements stipulating state pass-through
or sign-off would be in direct conflict with the law requiring tribal
governments have direct access to the Federal domestic assistance pro-
gram delivery system and could be challenged on this basis.
. The Task Force supports this approach to the recognition of tribal
Governments based on its surveys of tribal governments and on dis-
cussions held with government officials who endorse this procedure
*as being the most direct and effective manner to assure that tribal
governments have direct access to Federal domestic assistance
-programs.
Recognition of the sovereign powers of tribal governments (see
Chapter II) includes the recognition of the authority of tribal gov-
ernments to incorporate or charter tribal organizations for eligibility
to participate in Federal programs which require state incorporation
-or charter of tribal organizations. Federal program requirements
which subordinate the tribal government to the state are in clear
violation of all established Federal policy and Congressional intent
-embodied in authorizing legislation, and should be immediately
rescinded by the agencies concerned.
-5. ELIMINATION OF THE STATE FROM THE DELIVERY SYSTEM OF FEDERAL
PROGRAMS TO TRIBAL GOVERNMENTS
Federal policy established by a Congressional resolution and a
supporting Executive Order would recognize tribal governments as
-equivalent to state governments for the direct access to Federal do-
mestic assistance programs. Such a policy would eliminate states
from the delivery system of Federal programs to tribal governments
on the basis that state delivery of Federal programs and services are
in direct conflict with Federal policy.
Recommendations
The Tribal Government Task Force recommends that:
1. An Executive Order and a Congressional resolution should
,establish Federal policy of Tribal Governments as equivalent to state
governments for the direct access to Federal programs and services.
2. Federal program standards and/or eligibility requirements
should recognize the authority of tribal governments to create public
agencies or corporations eligible for Federal programs.
3. Congress should eliminate eligibility requirements which force
tribes to form consortium, inter-tribal organizations, or affiliate with
-other tribes to become eligible for Federal programs.
4. Congress should eliminate matching or cost-reimbursable require-
ments from Federal domestic assistance programs which reamire tribal
governments to put up initial capital before Federal monies can be
received.
5. Congress should pass appropriate legislation to insure that fund-
ing cycles of Federal domestic assistance programs are made uniform,
so that long-range planning of funds can become a realistic function
of tribal governments.





74

6. Congress should enact Senate bill S. 3281-Federal Program
Information Act-to increase the availability of information about
Federal domestic assistance programs to intended beneficiaries with
a special amendment which addresses the delivery of Federal domestic
assistance programs to tribal governments.
7. An Executive Order should be issued which calls for the com-
pliance of Federal agencies, Federal Regional Councils, and the Bu-
reau of Indian Affairs in the implementation of the Joint Funding
Simplification Act for delivery of Federal programs and services to
tribal governments.




























CHAPTER V
LAND CONSOLIDATION AND ACQUISITION





















































































































































































































































































































































.. .. ..









Chapter V


LAND CONSOLIDATION AND ACQUISITION
SThe Tribal Government Task Force received testimony from a
significant number of tribal representatives expressing the view that
the question of land consolidation and acquisition was of the most
critical nature and should be accorded the highest priority by this
task force in our report to the Congress. The overwhelming consensus
of tribal opinion as related to use was that maintenance and develop-
ment of the tribal land base must be regarded as absolutely essential
to the survival and growth of the tribe itself. Accordingly, the task
force recommends that the American Indian Policy Review Com-
mission and the Congress address the issue of land consolidation and
acquisition as a most pressing problem which cries for attention.
Regardless of our most sincere efforts in all other areas of the tribal-
U.S. relationship, if the Indian land base continues to disappear, the
tribes themselves will disappear and the totality of special Indian
laws, treaties, programs and services will be rendered completely
meaningless for those tribal governments confronted with reservation
land bases which were entirely allotted.
The problems of land consolidation and acquisition are most pain-
ful and complicated. Almost daily, tribal leaders see individual trust
allotments and interests therein being sold and transferred to fee
patent, non-trust status. They are constantly aware of the waste of
fractionated land holdings being leased in the most undesirable man-
ner by the BIA, simply because it is impossible to gain a consensus of
numerous, and oftentimes, remote interest holders. The nature of these
problems are discussed from the perspective of the tribal leader in
detail in the narrative below as well as analysis of alternative solu-
tions for the consideration of the Commission and Congress. The
discussion below is presented in the format of a personal statement
and represents the personal convictions of task force member Mr.
Jerry Flute, as well as the consensus of the task force.
The issue of Indian heirship law problems in Indian Country must
first be reviewed from the historical aspect before one can fully under-
stand the complications that exist today.
Prior to the European occupation, tribes viewed the lands within
thair territories to be sacred. Sacred because the land was Mother
farth. And Mother Earth was part of the circle of existence, provided
by the Great Spirit. This is a universal Indian belief in the religious
spiritual context of Indian philosophy and practice. The Great Spirit
created all things including Mother Earth. From Mother Earth de-
velops all forms of life and life-giving nutrients. Tribes believe very
Atrongly that all the lands, rivers, mountains, trees and air belonged
to the Great Spirit, and every thing that grew from the land, includ-
frg the Indians, must respect that blessing. Over the years, thousands
oif disputes between tribes developed because of land territory. At no
time did any of the tribes view the territory as their land, but con-
sidered the use of the land, rather than ownership. Use of the land
and disputes centered around hunting, fishing and grazing. Few dis-
iutes over land resulted because of farming. Indians believed and
? (77)






78


still believe, that bepiaue of the sacredness of the land, it could not be
owned, could not be partitioned, fenced and developed for one indi-
vidual. Territories were looked upon in the context of tribal use over
individual use.
With the coming of the settlers and the subsequent need for land,
the concept of land ownership was brought into the country and
became part of treaty negotiations with tribes. Many attempts were
marde to disestablish tribalism and the Federal government found
that defining territories as reservations did not contain the ingredients
to have the proper effect in brealdng down tribalism. Consequently,
in the late 1iSQO's. another attemrnt. was made hy the Federal Govern-
ment to divide and conquer tribes by allotting lands to individual
members of a tribe. Tribes strongly objected to this allotment proce-
dure and in spite of the objections. Congress passed, in 1887, the
Dawes Act, which provided for the allotment of land to each member
of the Tribe. The intent1ion of this act was to break down tribalism
in hopes of civilizing the Indians.
A selling point in the Allotment Act was to make farmers of the
Indian as a first step in civilization. It is apparent that many prob-
lems developed in the plan. The first of the problems was that Indians
selected their own allotments. In making the selection, the individuals
thought first of water and shelter, not giving consideration to the
hreal:ino of sod and seeding. They looked for the wooded areas near
lakes and streams for protection.
Secondly, treati*C promised thT necessary agrieilturnl tools of oxen,
voknl. plows. et'O. The Federal Government did not live run to this
provision. ThirdlyV, a majority of lands selected were not suitable for
farminir. Tad tribes been able to continue in their contiguous terri-
torial bioding, perhaps the plan would have worked. As allotments
were made and identified. it became apparent that little land was
snlctld in adioininz tracts and the checkerboard effect became ob-
vious. This no.curence fell squarely into the scheme for the second
pTn) e of the plan: opening reer-ations to white settlers on those un-
allnttpd trcnic. Federal negotiations with trails to sell the unallotted
],rdrl T-ere cmmbersome ,nd lengthy; but nevertheless, successful in
many areas, resulting in the opening of reservations to the Homestead
- itt. n spite of the tribes' set-back in retaining their territories, it was
h. T indi"n who taunlit the white settler to survive in an alien environ-
mrnt. This act of generosity soon proved to be disastrous to many
tribes.
Tbh very homesteaders they helped be.ran encroaching on the In-
dins1' and and eventhially hou"Mht it for little or nothing. The land
1.qe thAt wn not sold beran a new era of complexity. A new problem
emrnered which has yet to be resolved by any Conrress. Presidential
A.dm-niniCtratinn or tribe. As pointed out, earlier, tribes did not accept
the individual ownership of land. and aP recently as the 1887 Dawes
Act. rfeetorl in3;vidi'al ownership. Individual Indians, beginning
with the Dawes Act, contiruwd to have a mixed feeling about owner-
shin and had no understanding whatsoever about a "Last Will and
Testament'". Indians felt that whatever land was assigned or allotted
to them could simply be given by word of month to whomever they
chose. This method of r-ivinr was accepted within the family and
clan as beinqr the way it should he.
The problem was getting the BIA Superintendent or a probate
hearing judge to agree with the gift conveyance. Superintendents and






79


probate judges began relying on existing state and Federal statutes
gh covering probates to determine who the legal heirs were to be. Hypo-
thetically when Joe Eagle Horse, in 1892, gave his eldest of eight
,children his 160-acre tract of land, that was accepted within the
family. When Superintendent Great White Father and Honorable
.Justice reviewed Mr. Eagle Horse's probate, they decided that all of
his surviving children would inherit one half of the 160-acre allotment
and the surviving widow the other half, thereby placing nine heirs
on a 160-acre allotment.
SThe next year, the widow died, and the powers that be decided that
Sthe widow's three sisters should inherit one half of her interest and
the remaining interest should go to the eight children, now placing 11
Sheirs to the 160 acres. Ten years later, two of the sisters with husbands
and 12 children died and now there are 25 heirs to the 160 acres. This
is exactly what has happened to the allotted Indian-owned lands. The
problem has magnified to the point that one 72-acre allotment (at-
tached as an exhibit to this report) in the Sisseton-Wahpeton Tribe
contains no less than 315 heirs.
The lease revenue derived from this land is at the mercy of the local
BIA Superintendent. The reason is obvious-no one heir really cares
about the lease because they all have such a small interest. Conse-
quently, the Superintendent will advertise the tract of land as avail-
able to a bid lease. Non-Indian farmers and ranchers operating in the
P same vicinity as available allotted lands, collaborate on who wants to
Suse the land and how much should be bid. Generally, the bid is as low
as possible. Surrounding farm/ranch operators, respecting their
neighbors, will not bid against each other. Consequently, the 72 acres
of farm land is rented for a mere $4.50 per acre when the adjoining
non-Indian-owned farmland is leased for $45.00 per acre. The BIA.
Superintendent then accepts the bid and awards a 3 to 5-year lease,
since no other bids have been submitted. To compound this problem,
the Bureau of Indian Affairs now has to determine how much of the
$325.00 goes to each of the 315 heirs. Since the heirs have begun to
accumulate since the 1887 allotment, their shares are proportionately
different. The Bureau of Indian Affairs must also collect the rent
payment; divide the money; post to each heir's realty account the
percentage they have coming; and issue a lease check to the heirs.
In 1972, the BIA realty staff at the Sisseton Arency indicated that
the approximate cost per heir transaction was $15.00. This amount
I covers advertising, selection, collection, posting, paying and cancelling
of checks. Simple mathematics reveals a cost to administer this 72
acres of fractionated heirship land of $4.725.00 versus an income from
the land of $325.00. The Task Force on Tribal Government has heard
testimony urging legislation ("Indian Land Reform") to allow con-
solidatiton of tribal lands through eminent domain, solicited and
unsolicited purchase. Obviously, with substantial appropriation au-
thority, testimony has urged consideration of the incorporation of
FHA (Farmers Home Administration) Indian Land Acquisition loan
provisions and provisions of the IRA on revolving loans and grants
in addition, to address the total resource development issue rather
than limiting land acquisition to agriculture or small public use
ventures.
j A question which surfaces in the area of eminent domain is: How
floes a simple land consolidation scheme, to eliminate fractionated heir-
ship, fit into the interpretation of public use? Currently, eminent


Li






80


domain is used for highway rights-of-way, urban renewal, industrial
parks, recreational parks, etc. Funding for these projects obviously
provide for payment to the property owners at a fair current market
value. Provisions also include the right to public hearing and the right
to challenge through appropriate courts of jurisdiction. This task
force does not see eminent domain as the total answer to eliminating
the heirship problem. The following issues need to be considered: (1)
Does a tribe interested in exercising eminent domain have the tribal
constitutional authority? (2) Does the tribe have resources to pay fair
market value ? It is the feeling of this task force that a very limited
number of tribes could answer "yes" to those questions.
The issue of Indian Land Reform, considering testimony given, re-
quires more extensive research than time permits this task force. It
is our understanding that the Commission core staff has undertaken
this research and will be considering such legislation. This task force
has reviewed, for example, the Washington Law Review article on
"Too Little Land-Too Many Heirs: The Indian Heirship Land Prob-
lem" dated 1971. It is obvious that extensive research and valid recom-
mendations are contained in this document. This task force recom-
mends that serious consideration be given to this research paper in
deliberation for a solution to the heirship problem. Secondly, it should
be pointed out that this research document indicates that there have
been at least a dozen bills introduced in Congress to enable Indians to
halt the fractionation process, but none has been enacted.
Quoting from Stephen A. Langone's article, "The Heirship Land
Problem and Its Effect On the Indian, the Tribe, and Effective Utiliza-
tion," 91st Congress. 1st Session. 'Toward Economic Development for
Native American Communities," page 543:
1. There is no easy simple solution to the problem.
2. No solution will meet with the complete approval of all parties concerned.
3. A solution to the problem cannot be reached without expenditure of money
on the part of tho: concerned.
4. The problem, as it is now constituted, is unmanageable, increasing in scope
and requires solution.
5. Fractionation is an economic problem for the individual Indian owner, the-
tribe and the Federal government.
6. The Indian owners are a primary concern in any attempt to solve the problem,
with the tribe being secondary concern, and the Federal government, third.
7. The present administrative and personnel cost to the Federal government
could be more effectively used by other Indian assistance programs.
8. Possible remedies to reduce or solve the problem include: inheritance restric-
tions. exchange, sale, partition, escheate and fee title.
9. Whatever approach is taken, reservation of minerals in trust, the holding
of cash estates in trust, etc. will continue-to some extent-the fractionation,
inheritance and record-keeping problem.
It is the recommendation of this task force, that because the prob-
lem is complex and requires sole concentration to the issue, that a con-
tinuation of time be allowed to address a solution. It is apparent that
much time. resources and energy have been expended over the years
without a workable plan. It is our feeling that a workable plan can be
developed from the research data now available. The Task Force on
Tribal Government has spent much time in hearings, securing research
data and compiling survey documents to be able to point out a solution
which so many have attempted. It is not our intention to "pass the
buck" on this problem, but to point out that we have simply not had
the time to comprehensively point a direction. We urge the review of
resource data which we have collected, as well as the data core staff has
available.



























CHAPTER VI
SPECIAL PROBLEMS OF SMALL TRIBES












:::1



I Chapter VI
SPECIAL PROBLEMS OF SMALL TRIBES

i There are 481 tribes recognized by the BIA as eligible to contract
Sunder the Self-Determination Act. Of that number, 326 have popula-
J| tions of less than 350 members. With small tribes comprising the great
majority of recognized tribes, it is no wonder that they complain bit-
terly of prejudice in the manner in which a number of Federal pro-
grams are distributed.1 Chief among these programs and already
touched upon in Chapter Three, is the Self-Determination Program.
!, Population Iorula
SFor the fiscal year 1976 transactional grant period (May 1-Sep-
1jtember 30), grants totaling $5,999,743 may be distributed to 455 tribal
governments. "May" is emphasized because although the grants are
Available on a non-competitive basis, tribes must submit grant appli-
Acations by August 15, 1976 or their share may be made available to
[ other tribes within the same area office who have established the need
| for additional funding. As Table I indicates, the use of the popula-
| tion distribution formula clearly works to the detriment and discrim-
| nation of small tribes.
I K For example; General Revenue Sharing.
i (83)




N*:
Ii,
'i"

I




I-
l 'i '

i!!






84


."638" FORMULA DISTRIBUTION FOR FY '.76
[by number of small tribes (less than 350
-and number of large tribes (more than 350]


6?


FORMULA
Distribution

FY '76
(in millions) 4



3




2


1


extjua.Tq
0 [asko-0 ,
00


-~-~0


200 300 400


Less than 350


More than 350


Number of tribes with more or less than 350 members

With tribes of less than 350 persons comprising almost 66 percent of
the total number of tribes eligible to receive self-determination grants,
the population formula is even more unequitable. Three hundred tribes
are eligible to receive only $773,596 or 12.9 percent of the total Public
Law 93-638 share allocation for fiscal year 1976. If Alaska, with 175
villages of less than 350, is excluded, the difference in allocations be-
tween small and large tribes is even more dramatic.


500









I Less More Less More Less More Less More
than than than than than than than than
P Area office 350 350 Total 350 350 Total 350 350 350 350
ern--------. 14 15 $824 $760,984 $761,808 0.1 99.9 5824 $54,356
ru-rdu -.._ 7 16 23 32,572 543,385 566,957 5.8 94.2 4,653 33,399
1o h---------- 10 12 2J 31,832 268,380 300,212 10.6 89.4 3,183 22,365
his .........--- 0 9 466,087 466,087 --------100.0 --------51,787
tern------------ 4 9' 13 17, 460 319,530 336,990 5.2 94.8 4,365 35, 503
heau .--.... 1175 30 205 486,157 488,052 974,209 49.9 50.1 2,778 16, 268
n tiapdhs- ..... ... 8 19 27 21,968 396,065 418,083 5.3 94.7 2,746 20,846
Llskegee--.-------- '3 7 10 8,235 566,930 575,165 1.4 98.6 2,745 80,990
avajo ..---..--------- 0 1 1 .......... 266,200 266,200 --------100.0 --------266,20
IRoeoix.--. ....... R I 21 38 43, 358 737,081 780,439 5.6 94.4 2,550 35,099
jrtland ........... 26 15 31 41,.178 383,005 424,183 9.7 90.3 2,573 25,534
remaento. -------- 59 2 61 90,012 39,448 129, 460 69.5 30.5 1,526 19,724
S Total-------...... 300 155 455 737,596 5,226,147 5,999,743 12.9 87.1 2,579 33,717
ptloding Alaska...-- 125 125 300 287,439 4,738,095 5,025,534 5.7 94.3 2,300 37,905
1 4 tribes with a zero population.
' 1 tribe with a zero population.
SA 18 tribes with a zero population.

STable 2 shows that of 250 tribes, one-half are under 350 persons and
iret, the 125 small tribes are only to receive 5.7 percent of the "638"
sgare allocation for tribes within the lower 48 states.
nall tribe incentives
TIn his memorandum of June 17, 1976 the Commissioner of Indian
affairs distributed a two-part table entitled, Public Law 93-638
Sounding Allocations To Be Obligated During the fiscal year 1976
['ransitional Quarter.2 Section 1 of the Table shows the source of total
endingg available for fiscal year 1976 and the transitional quarter. The
scal year 1976 supplement amounts to $7,250,000 and the traditional
quarter funds are $800,000 for a total of $8,050,000. Column 2 of sec-
n 2o lists what is known as small tribe incentives available to small
iibes in each Area Office.
" Recognizing that the population formula meant insignificant ac-
ounts of money available to a large number of tribes, the BIA de-
igned an incentive program whereby tribes of less than 350 members
would qualify for a supplemental grant in addition to their basic "638"
rare. If a small tribe wishes to receive the supplement, it must either:
1) form coalitions with other small tribes to enter into joint projects
rhich achieve economies of scale provided that the coalition has a
kpmbined population of at least 150 persons; or (2) submit single tribe
applications for projects which are determined to be particularly viable
ri relation to the purpose of the Self-Determination Grants Program,
wovided a tribe has a population of less than 350 persons.3
In determining the funding shares of coalitions, the cost factor for
Re first 150 persons in the coalition is $100 per person rather than $50.'
lierefore, two tribes of 75 members each could be eligible for a
tal of $15,000 for a joint project. The emphasis is clearly on coali-
ons of tribes forming service populations of 150 or less because the
funding cost factor of $100 per person only applies to the first 150
persons in the coalition's service population.
On an annual basis, tribes of 150 or less can qualify for no more
ian $10,000 incentive funding and tribes between 100 and 350 for
'Exhibit 12; P.L. 93-638; Funding Allocations to Be Obligated During fiscal year 1976
Ld Transitional Period.
SExhibit 8 : Commissioner's Memorandum of June 16, 1976.
4 Note 3, Supra.
77-465-77---7






86


from $9,950 to $50 incentives, not to exceed $17,500.5 These figures have
been adjusted to provide for 5-month operations for fiscal year 1976;
therefore, transitional quarter funding is $4,170 for tribes of 15l0 or less
and varies from $4,119 to $21 for tribes between 150 and 350 persons
not to exceed a total of $7,298.' The emphasis or priority is clearly in
funding tribes which form coalitions. The Tribal Government Task
Force has found that many tribes do not want to form consortium or
coalitions for the delivery of services to their members. In addition
the incentive that small tribes form coalitions with other small tribes
of less than 150 persons is perhaps too limiting. It presupposes that
small tribes will be geographically in close proximity to one another
which is not always the case. For example, the Flandreau Sioux Tribe
is the only small tribe within the Aberdeen Area Office which means
that it would be extremely difficult to form a workable coalition with
another small tribe outside its area.
Although there should not be priority given to tribes who form coa-
litions as opposed to submitting single tribe applications if a small
tribe wishes to form a coalition with a tribe larger than 150 persons, it
should still be able to qualify for a small tribe incentive.
Approximately $908.457 has been allocated in fiscal year 1976
supplemental period for small tribe incentives.7 The total grant allo-
cation ("638" shares and small tribells incentives) for tribes under 350
persons is $1.682,053 for this transitional period or 24.4 percent of the
total amount to be distributed pursuant to the Self-Determination
Grants Program. While the Bureau is to be commended for includ-
ing small tribe incentive funding within the grant program and at-
tempting to distribute the grants on a more equitable basis, neverthe-
less, nearly two-thirds of all tribes will be entitled to receive only 24
percent of the available grant allocations. Task force findings indicate
that the great majority of tribes who can neither salary their chair-
man, tribal council, nor employ legal counsel are tribes with less than
350 persons.
Relationship of population formula to tribal need
Fiscal year 1977 will be the first full year in which the Self-
Determination Grants Programn will be operational. As indicated ear-
lier, the funding allocations for fiscal year 1976 only reflect a 5-month
period, therefore the funding distribution only reflects approximately
49 percent of the formula. For fiscal year 1977, the budget request for
the grant program is $17.160,000 in grants. $4.597,000 in training and
technical assistance,8 and $11,130,000 for contract support.9
Although each tribe will receive a larger sum than in fiscal year 1976,
198 tribes with populations of less than 150 persons will be eligible
to receive no more than $9,900 each, while 102 tribes with populations
of no more than 350 persons will be eligible to receive a maximum oo
$17.500 each (excluding the small tribe incentive) based on the $55
per person formula.10 Does the population formula reflect the actua
6 Note 3, Supra.
*6Note 3, Supra.
SNote 2, Supra.
S Funds will be made available to cover the costs of training tribal personnel in area
such as financial administration, merit personnel system, etc.
Contracts support provides tribes with funding to cover overhead or indirct cost.
10 Note 3, Supra.