|Table of Contents|
Front Cover 1
Front Cover 2
Letter of transmittal
Table of Contents
Chapter 1. Administration of the trust
Chapter 2. Federal Indian Assistance programs; the delivery of services
Chapter 3. The Bureau of Indian Affairs
Chapter 4. Feasibility of alternative Indian elective bodies; eligibility of tribes and Indians for Federal services
Appendix A. Management study of the Bureau of Indian Affairs
Appendix B. San Juan-Chama
Appendix C. Tabulation of relevant statutes and regulations
Appendix D. Declaration of Indian purpose
Appendix E. American Indian declaration of sovereignty
Appendix F. Micronesia analysis
Back Cover 1
Back Cover 2
REPORT ON FEDERAL ADMINISTRATION
AND STRUCTURE OF INDIAN AFFAIRS
TASK FORCE TiREE: FEDERAL ADMINISTRATION AND
STRUCTURE OF INDIAN AFFAIRS
IERICAN INDIAN POLICY REVIEW COMMISSION
Paiur S. DELoIA, Standing Rock Sioux, Chairman
RAY C. GETTING, Caddo, Member
MEL TONASKET, Colville, Member RUDY RYSER, Cowlitz, Specialist
Bonil MINNIS, Colville, Speciali8st
Printed for the use of the
American Indian Policy Review Commission
U.S. GOVERNMENT PRINTING OFFICE 77--67 WASHINGTON : 1976
For ale by the Superintendent of Documents, U.S. Government Printing Offlee
Washington, D.C. 20402 Price $2.30.
AMERICAN INDIAN POLICY REVIEW COMMISSION Senator JAMES ABOUREZK, South Dakota, Chairman Congressman LLOYD MEEDS, Washington, Vice-Chairmas
Senator LEE METCALF, Montana JOHN BORBRIDGE, Tlingit-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 ERNEST L. STEVENS, Oneida, Executive Director KIRKE KICKINGBIRD, Kiowa, General Counsel MAX I. RICHTMAN, Professional Staff Member
TASK FORCE 3: FEDERAL ADMINISTRATION AND STRUCTURE OF INDIANi AFAInS PHILIP S. DELORIA, Standing Rock Sioux, Chairman RAY C. GOETTINO, Caddo, Member MEL TONASKET, Colville, Member RUDyt RYSER, Cowlitz, Task Force Specialiat BOBBI MINNIS, Colville, Task Force Specialist fIll
LETTER OF TRANSMITTAL
AMERICAN~ INDIAN POLICY REVIEW COMMISSION,
CONGRESS OF THE UNITED STATES, September 1976, Washington, D.C. Tja AERCAN INDIAN POLICY REVIEW COMMISSION,
DEARSIRSAND MADAM: Enclosed is the Final Report of the Task
Forc onFederal Administration and Structure of Indian Affairs in
Accrdacewith the Authority of Public Law 93-580.
TeTask Force and the two specialists have concluded work with a
gret dalof effort and considerable material in support of the elemnts higlighted in the report. The time limit did not permit literary refneents which would be desirable, nor the complete detailing of suportngfactual cases which are in the files, hearings, and special submttedtestimony. Nevertheless, it is our opinion that the report worthy of your consideration in recommending to the Congress strctualmodifications.
With all best wishes for a successful Commission effort in the
FnlReport, we remain,
TASK FORCE #3, FEDERAL ADMINISTRATION AND STRUCTURE OF INDIAN AFFAIRS, By RAT C. GOETTING, Member.
Digitized by the Internet Archive i n 2013
The Task Force on Federal Administration and the Structure of Indian Affairs has collected and reviewed data concerning a broad variety of Indian issues and has set down recommendations for change which will improve relations between the Indian tribes and the United States government and improve the administration of the government's Indian programs. The Task Force recognizes that significant progress has been made in many areas in recent years, and efforts have been made to improve the federal system; this report will address itself primarily to those specific policies, practices and, procedures, which are still in need of change.
In order to determine the views of Indians as to federal admilistrative problems, the Task Force has met with over one hundred representatives of tribal governments and solicited documents from hundreds of individuals, organizations and tribal governments. It has conducted five joint hearings with Task Forces and the full Commission at nine localities in the United States. It has collected thousands of pages of testimony, historical DOliCiCS and positions of Indian nations and tribes from the early beginnings of the United States, with major focus on the last seventy-five years.
An important part of researching and developing a report such as this is the extent to which individuals offer assistance and advice. Many people, both Indian and non-Indian, offered help and encouragement in the preparation of this report-too many to mention by name. Review and exchanges of information by members of other Task Forces have helped considerably. A special report requiring collection of tribal materials was financed in conjunction with other Task Forces, coordinated by Lee Cook, organized and written by Dianne Pierce, Agnars Svalbe, Carole Wright, Laurel Rule and John Kough. Special and valuable research papers were
N epared by the Core Staff and Research Staff. We thank Gil Hall, urzarme Ahn, Jen-1ce Bigbee, Dennis Carroll and Dick Shipman for their special studies and analyses.
The American Indian Law Center, University of New Mexico School of Law, prepared a special report (Study of Statutory Barriers to Tribal Participation in Federal Domestic Assistance Programs), which the Task Force utilized as support data for several of its recommendations.
Very significant contributions have come from Indian tribal leaders, who presented testimony at hearings and meetings on which many of our recommendations are based. The staffs of many Indian tribes and inter-tribal organizations have been helpful in sharing with the Task Force specific examples of their problems in dealing with federal agencies. For all the help, the Task Force wishes to extend its sincere appreciation.
TABLE OF CONTENTS
Letter of transmittal ----------------------------------------------- lil
Preface ----------------------------------------------------------- V
Introduction ------------------------------------------------------ I
Executive summary -----------------------------------------------Recommendations ------------------------------------------------- 17
Chapter I. Administration of the trust ----------------------------- 21
Chapter II. Federal Indian Assistance programs; The delivery of services 37 Chapter III. The Bureau of Indian Affairs --------------------------- 45
Chapter IV. Feasibility of alternative Indian elective bodies; Eligibility
of tribes and Indians for Federal services ------------------ 64
Bibliography ------------------------------------------------------ 815
Appendix A. Management study of the Bureau of Indian Affairs-------- 91 Appendix B. San Juan-Chama -------------------------------------- 151
Appendix C. Tabulation of relevant statutes and regulations ------------ 161
Appendix D. Declaration of Indian 184
Appendix E. American Indian declaration of sovereignty --------------- 219
Appendix F. Micronesia analysis ------------------------------------ 224
AmrRICAN INDIANT POLICY R EVIEW CO-MMISSION
Pursuant to Public Law 93-580, the Task Force on Federal Administration and Structure of Indian Affairs was charged by the American Indian Policy Review Commission with the responsibility to conduct:
1. "A review of the policies, practices and structure of the
federal agencies charged with protecting Indian resources and providing services to Indians: Provided, that such review shall include a management study of the Bureau of Indian Affairs utilizing experts from the public and private sector-" (See. 2;
2. "An exploration of the feasibility of alternative elective
bodies which could fully represent Indians at the national level of government to provide Indians with maximum participation in policy formulation and program development." (See. 2; Para. 5)
3. "An examination of the statutes and procedures for granting
federal recognition and extending services to Indian communities
and individuals." (See. 2; Para. 3)
Following these general lines of inquiry, the Task Force arrived at five specific subject areas:
I. Administration o the Trust.-This subject is concerned with the impact of the entire Federal government on indian resources, since it is impossible to examine the structure of federal agencies charged with the protection of Indian resources without being confronted with issues concerning those federal agencies which affect Indian resources as well. The problems are of such a character that the Task Force has recommended major structural chancres, which are necessary to enable the Federal government to initiate changes in important specific procedures and policies.
II. Delivery of Services.-This subject area is concerned with the system by which various kinds of federal services are provided to Indian people and communities. Since Indians are eligible for programs authorized specifically for Indians as well as programs of general applicability, the Task Force has concentrated on the relationship between these two kinds of federal service and has recommended means of improving coordination between them.
III. Management of the Bureau of Indian Affairs.-The special Management Study of the Bureau of Indian Affairs commissioned by the Task Force pursuant to P.L. 93-580 deals in some detail with the internal operating difficulties of the agency and recommends changes. (Appendix A) The Task Force itself has gathered a great deal of additional data concerning the Bureau of Indian AHairs, particularly from the Indian people themselves. Here, again, problems associated with the organizational level prompt the recommendation for a major structural change to allow appropriate and equitable influence.
IV. Feasibility of Alternallre Elective Bodies.-The Task Force has reviewed the history of the political relationship between the various Indian tribes and the United States and sought knowledgeable Indian opinion regarding the effect on the present system of the absence of an elective body to insure Indian participation at the national level. The Ta;k Force has also held several meetings to solicit Indian opinion regarding the institutionalization of a relationship between the Indian tribes and the Congress.
V. Procedures for Granting Recognition.-This responsibility was given specifically to this Task Force quite late in the life. of the Task Force. The Task Force has assembled what it considers to be some of the -major considerations in this difficult area for the attention of the Co i)i mi,.--sion.
The task of reviewing the policy, practice and structure of each relevant federal agency has proven to be insurmoun table, not only in view of the limitations of time and resources of the Task Force, but also in view of the reluctance of the executive, branch agencies to extend their full cooperation to the work of the Task Force. The Task Force has also been unable to recommend changes in each policy and procedure for oach agency for the same reasons. But, in addition, the Task Force concluded during its investigations that the intent of Congress in creating the American Indian Policy Review Commission was to take a bro a& look at Federal-Indian policy and in that sense the Task Force has assembled evidence of problems with a view toward determining systematic inadequacies. The Task Force members are confident t6i7if the structural changes which we have recommended are adopted and fully implemented, the federal government will be organized in such a way as to facilitate the policy and procedural adjust ents which are required.
The Task Force has found that there are two recurrent underlying problems which demand special attention at the outset: the "horizontal" problem and the "representational" problem of the federal delivery system for Indians. Since. an understanding of these basic issues is essential to understanding the problem of federal administration of Indian programs, we will deal with them here briefly before embarking on our conclusions and recommendations with respect to each of the main topics of the Task Force inquiry.
A. THE (( HORIZONTAL it PROBLEAT
Indian affairs is a unique category of federal interest, cutting horizontally across virtually all other federal activities. There is Indian housing, Indian economic development, Indian health, Indian education, Indian land management, road development on Indian reservations, Indian irrigation development, ad ivfinitum. For that reason, the placement of Indian programs within the federal structure always involves several issues implicit in the horizontal nature of the Pederal-Indian interest.
The first issue in the "horizontal" problem concerns the strategies of concentration of responsibility vs. diffusion of responsibility to serve Indians. That is, whether a single agency in the federal government should be identified by its Indian interest and designated to serve Indians to the exclusion of all other agencies. Clearly, such a
sharp distinction is impossible, and, in fact, the federal government has rarely tried to concentrate all Indian programs within a single agency. Since Indians are eligible for all federal programs on the same basis as other citizens, an attempt to concentrate all "Indian" programs into a single agency at the federal level would result in chaos at the community level, with individual Indians being shunted from the offices of the normal source of services provided to the general citizenry.
At the same time, the federal government's interest in and responsibility to Indians is sufficiently unique to require that certain significant functions be assigned to an agency whose only interest is Indians; total diffusion of trust responsibility among the substantive federal agencies (i.e., for health, education housing, land management, etc.) is also unworkable. There has always been at least one, federal agency with Indian responsibilities whose functions often overlap with other agencies but whose Indian interest gives it a special identity within the federal structure.
Since the concentration and diffusion approaches each have their advantages and disadvantages, which are to a large extent complementary, it is understandable that throughout most of the history of the federal-Indian relationship the delivery system for services has consisted of a combination of the two approaches, as indeed it does today. The Task Force will recommend a mechanism which will allow the tribes and the Federal Government to adjust the delivery system to meet the, circumstances of the time.
A second issue in the "horizontal" problem concerns the placement of the major Indian agency-and therefore responsibility-within the federal structure. Since 18491 the Bureau of Indian Affairs has been a part of the Department of the Interior, the major land-based federal department, apparently on the ground that a major function of the Bureau of Indian Affairs is its trust responsibility for Indian land and natural resources. Although this placement in the Department of the Interior has a surface logic to it, several counter-arguments are freuently presented. One argument holds that the Department of the Interior is in fact the natural enemy of the resource interests of the Indian tribes because of its public responsibility and because of a natural and cultural affinity with those economic, social, cultural and political interests of the West which are most frequently at odds with Indian interests and which have historically profited from the misfortunes and relative disadvantages of the Indian tribe.
Another counter-argument addresses the multi-faceted nature of the responsibility of the Bureau of Indian Affairs. It holds that the placement of the Bureau of Indian Affairs in the Department of the Interior is inappropriate in light of the responsibilities of the Bureau with respect to human and social development-areas in which the Depaxtment of the Interior has no pretense of expertise. Relym*g on the horizontal nature of the activities of the Bureau of Indian Aflairs, this counter-argument has been used in the past to support proposals to remove the Bureau from the Department of the Interior and transfer it to either the Department of A "culture, the Department of Commerce, or the Department of Healt Education, and Welfare.
This debate is inherent in the nature of the federal interest in Indians which is, in fact, nearly comprehensive and horizontal as it
relates to other federal interests. Clearly, the Bureau of Indian or the Indian interest in general does not fit neatly into any substantive federal agency, and just as clearly a choice must be made as to its location wthin the federal structure. When making that choice, positive arguments become negative and negative arguments become positive depending on the alternative which is under consideration.
After a year of hearing the arguments advanced and reading voluminous studies taking one position or another, the Task Force has concluded that the utility of any particular placement of Indian responsibility in the federal government depends on a host of factors and may be different depending on the circumstances, and subject to change as conditions and imperatives change. The determination of policy on this issue must rely on more than surface similarities between agency missions or logical formulations based on government organizational charts. Our recommendation to deal with this issue for the present is based upon our year-long study and the judgment of Indian leaders and government experts as to the appropriate administrative structure in the current circumstances of Indian policy and prog-ramrs.
B. THE itREPRESENTATIONAL2 PROBLEM
This problem is concerned with the relationship between the Bureau of Indian Affairs-or any other federal agency with specific Indian responsibilities-and the Indians on the one hand and the federal government in general on the other hand. One set of expectations of the Bureau of Indian Affairs-not held exclusively by Indians-sees it as the Indians' advocate within the federal government, as the Indians' agency. The Task Force has received a number of thoughtful recommendations based on this assumption which would increase the expectations of the Bureau as an advocacy agency, e.g., that the Commissioner of Indian Affairs be elected by the Indian people or that the Bureau of Indian Affairs be reconstituted as a commission with a board of commissioners elecLed by the Indian people or by the tribal governments. It can certainly be said that the tradition has already been established within the American political system that the Commissioner of Indian Affairs will most probably be an Indian, although the tribal participation in his or her selection has been on an informal basis up to the present. The views of the Task Force on the merits of these suggestions will be presented in a subsequent section, but it is sufficient to note these proposals here as indications of the view held by some people of the appropriate role and identity of the Bureau of Indian Affairs.
Just as clearly, however, the Bureau of Indian Affairs is the focus of the federal trust responsibility, and in that role, it represents the United States in its relationship to the Indian tribes and people. Thus, although it may well be that the incumbent of the office be an Indian by political necessity, the office of Commissioner and the agency under the Commissioner are instrumentalities of the United States, not the Indians, and represent the U.S. side of the table in relation to the tribes. This is not to say that there is no appropriate advocacy function for the Commissioner or the Bureau, ,but it is to say that Indian advocacy can best be expected from the Bureau of Indian Affairs on those issues where the interests of the agency and those of the Indians coincide.
We raise this issue to illustrate that, just as the conflict of interest in the government is inherent, there is also an irreducible area in which the Indians will be at odds with any federal agency, regardless of the mandate of that agency to serve Indian interests. It has been the purpose of the Task Force to recommend an administrative structure which will make such conflicts manageable in a way that meets the highest standards of fairness and efficiency.
The Task Force deals with these two problems at some length because it feels,, based upon its investigations of the past year, that the creation of the American Indian Policy Review Commission itself may have raised hopes that the conflicts stemming from both the horizontal and representational problems would be resolved once and for all if enough thought were to be given to the problems.
The Task Force would like to set its subsequent discussion in the context which it feels is proper and realistic. The horizontal and representational problems are inherent to federal Indian programs, and the system must be designed to manage these problems in a way that accords fundamental fairness to the Indian tribes and individuals whose very existence depends on an equitable and efficient system.
When it enacted P.L. 93-580, the Congress recognized that:
. the policy implementing (the federal-tribal) relationship has shifted and ebanged with changing administration and passing years, without apparent rational design and without a consistent goal to achieve Indian self-sufficiency.
In so recognizing the shifting character of Federal-Indian policy, the Congress recognized the dilemma of administering Federal- ndian relations and -the confusion surrounding two hundred years of lawmaking, administrative and legal interpretations in Indian affairs.
Without departing from the present Federal-Indian policy of SelfDetermination, the Task Force on Federal Administration and the Structure of Indian Affairs has concluded that several changes are required if the federal government is to implement effectively the present policy. Briefly, these are as follows:
1. Full Comr'ttees on Indian Affairs in the Senate and the
House of Representatives should be established for a period of
not- less than ten years.
11. Congress should create a Special Action Office in the
White House with authority to plan and implement Recommendations III and 1V (below). A period of not more than three
years for implementation should be provided.
111. The Bureau of Indian Aiffairs and the Indian Health
Service should be reconstituted in a single independent agency in the Executive Branch, headed by a Commissioner who is
ap inted by the President for a fixed term.
fr. Congress should by appropriate legislative enactment:
A. Hold the actions of all federal agencies to the standard
governing the trust responsibility to the Indians; and
B. Specifically charge all federal agencies with the responsibility to provide services to Indian tribes by means of appropriate delivery systems accounting to the Indian agency.,
The Congress of the United States, while determining how the American Indian should be dealt with, has deviated from time to time by enacting legislation which has reduced lands, disturbed tribal government, a d threatened termination of tribal existence.
The Bureau of Indian Affairs, restricted by the Department of the Interior, is guilty of ineffective practices, weak in Indian advocacy and, under such control, is unable to adequately plan, supervise and perform the functions for which it was designed.
The Department of the Interior has failed to fully perform the duties required of an agent of the trust. This duty requires the highest degree of skill, care and diligence, but political pressures, conflicts of interest and administrative neglect contract, realization of this end.
The Justice Department effects the same neglect of duty: administrative delay, conflicts of interest and cases handled at lower levels of the organization contribute to this neglect.
Departments and bureaus of the federal government outside the Interior and, possibly Indian Health Service, have no concern for, nor see any obligation to, the American Indians trust status and entitlements required through treaties and other special Indian laws; other than an Indian Desk, there is little or no organized delivery mechanism to include' Indian concerns in the normal operation.
The inconsistencies in federal law, policies and practices in relation to Indian nations and tribes reflect a profound disregard for the rights of Indiqns to remain a separate people. The United States can be said to have four major policies toward Indian nations and tribes, as taken from the Northwest Ordinance of 1787:
(1) The utmost good faith shall always be observed toward the Indians; (2) Their lands and property shall never be taken from them without their consent;
(3) Laws founded in justice and humanity shall, from time to tiem, be made for preventing wrongs being done to them, and for preserving peace and friendship with them; (4) The severe* inherent right of self-government of Indian nations and tribes shall be respecteTand protected by the United States.
The principles of "utmost good faith," Indian consent, and U.S. protection of Indian rights and property have been embodied in major legislative acts of Congress, progressively:
Northwest Ordinance of 1787;
Trade and Intercourse Acts of 1790, 1791, 1802, and 1834;
The Snyder Act of 1924;
Indian Reorganization Act of 1934;
Menominee Restoration Act of 1973; and
Indian Self-De termination and Education Act of 1974.
Treaties, agreements and the aforementioned favorable major acts of Congress combine to attest to the consistent intent of Congress to abide by humane laws. Congress, however, has set its own pattern of inconsistency by enacting 1 isolation which resulted in violating treaties, agreements and its major legislative policies. These contrary legislative enactments sought to:
1. Exterminate and, remove Indians from their homelands without their consent (i.e., Indian Removal Act of May 28, 1830);
2. Individualize tribal lands and destroy the tribal community and culture (i.e., Act of March 3, 1847 and the General Allotment Act of 1887);
3. Assimilate Indians into the general population and terminate the U.S. responsibility to preserve, protect and guarantee Indian rights and property (i.e., Seven Major Crimes Act of 1924, House Concurrent Resolution 108 in 1953, Public Law 83-280).
The Judicial Branch of the government has, perhaps, been more consistent in its interpretation of the vast body of Indian law. From the landmark case of Worcester v. Georgia, 31 U.S. 515 (1832), to Winters v. United States, 207 U.S. 564 (1908) and more recently, United States v. Washington, 384 F. Supp. 312 (1974), the courts have consistently recognized the sovereignty of Indian tribes and nations as well as their inherent right of self-government. The courts have consistently upheld Indian paramount rights to land and resources. Such court rulings have frequently been hindered "after the fact," thereby causing problems when attempts to correct encroachments are, initiated by Indians.
The courts though never withdrawing from supporting the historical pattern of asserting Indian sovereignty and the inherent right of self-government, have been responsible for allowing erosion of tribal independence and the exercise of self-government. Numerous decisions of the Supreme Court have diminished tribal powers by asserting the right of the United States to legislate the internal affairs of Indian tribes without proper authority through "Just and lawful wars" (Northwest Ordinance, 1787).
The Executive Branch has exercised, with few exceptions, a consistent policy of forced assimilation of Indian populations, diminishment of tribal land base and exploitation of Indian rights and property. These policies have rarely shifted to reflect the good faith policies or major Congressional Acts and the large body of favorable judicial decisions.
None of the three great branches of government operate entirely isolated from each of the others. It appears, however, in the broad area of Indian affairs, the Executive Branch has most consistently violated the four principles of good faith embodied in legislation and judicial decisions.
Indian tribes and people, in contrast to the federal government, have consistently urged that the United States abide by the more than three hundred treaties and agreements. Indians have frequently insisted that the United States abide by its own laws. Indians view their relations with the United States as best outlined in the Northwest Ordinance which reflects tribal claims of sovereignty, self-government, and the right to be represented in any action of the United States which affects the lives, rights and property of Indians.
The most destructive policies of the United States toward Indians have been "forced assimilation" and "termination." Both policies have been aimed at the same end: destruction of the tribal community and the transfer of Indian lands and resources from Indian control to non-Indian ownership. Almost every action of the Federal Government in Indian affairs from the beginning of the republic has been seen by Indians to be directed at the elimination of Indians, their culture and their property. Despite well-intentioned legislative enactments, Indians must carefully search for any hidden elenients which will lead to the termination of U.S. responsibilities to protect Indian rights and property.
Even though the courts 'have consistently held that the United States owes a responsibility to preserve, protect and guarantee the rights and property of Indian nations and tribes, they continue to exist under the threat of destruction.
To eliminate this' perpetual state of uncertainty, Indians must be a,,sured of perpetual protection by the United States and their perpetual right to exist as Indians with their governments, culture, special rights, lands and. resources intact, without the threats of liquidation, forced assimilation and termination.
If Congress enacted a policy which removed the threat of "forced a-ssimilation" and "termination," it is the belief of Task Force #3 that mnany of the difficulties associated with transferring responsibilities to the tribes would be eliminated; the United States could renew its willingness to act in good faith toward Indian nations and tribes; and a new Indian policy will have been set in law which insures the healthy growth of Indian communities and the full opportunity of Indians to exercise their inherent rights as a people. This will allow a stronger base upon which to administer Indian affairs.
1. ADMINISTRATION OF THE TRUST
With respect to the executive agencies and departments of the federal government, the Task Force has concluded that the major problem is that these agencies in general are ignorant of the federal trust responsibility toward Indian lands and resources and the federal recognition of Indian tribal self-government, and to the extent that they are aware of the federal/tribal relationship they appear to have concluded that because of its specific statutory responsibilities the Bureau of Indian Affairs in the Department of the Interior is the sole instrument in the federal government whose actions are subject to the standards governing that relationship. The result of this condition is that the Bureau of Indian Affairs, at best, suffers in bureaucratic isolation, expected to stretch its budget to meet the -needs of all Indians and constantly doing battle with other federal agencies in an attempt to protect Indian resources from the deleterious effect's of federal actions and the actions of states and private interests. At worst, the Bureau of Indian Affairs is placed in a position of compromising the interests of the Indians for whom it is responsible, as a means of survival within the federal structure or as a trade-off for other interests.
The law is clear that the trust responsibility extends to the United States as a whole and that thie actions of any federal agency, insofar as they affect the Indian trust resources, open the United States to liability. It is clear to the Task Force, then, that the administration of the trust responsibility of the United States will be greatly improved if the Congress makes it clear by statute that all federal agencies must a-sess their actions in terms of the possible effect on Indian trust resources and Indian rights which have been guaranteed protection by the United States.
The present structure of Indian affairs is fundamentally unf air both to the Indian beneficiaries and to the Departments of Interior and duistice. It is fundamental to the American system that the conflicts wh IIi ChI frequently exist between the interests of the Indians and those
of the federal government, state and local governments, private individuals or corporations should be resolved in an open forum. with due process accorded to all contending parties. Instead, such conflicts under the present system are frequently resolved through a closed bureaucratic process which is virtually immune from judicial review except in the most egregious cases. This process is subject to political interference and is weighted heavily against the Indian interests.*
The Task Force recognizes that it is impossible to design a system which will be satisfactory to all opposing interests or free of all error, much less to design a system which will guarantee that the Indians will be completely satisfied with the resolution of every dispute. However, it is not too much to ask-indeed, the Task Force considers it to be basic-that whatever the process, it should be open and designed to accord fairness, justice and equity to all concerned in accordance with the government's legal and moral obligations.
,Il. FEDERAL DOMESTIC ASSISTANCE AND THE DELIVERY OF SERVICES
Similarly, the Congress has created special programs for Indians, both in fulfillment of specific treaty provisions and for the general purpose of fulfilling a commitment to the Indian tribes to alleviate social and economic conditions on Indian reservations and among non-reservation Indian communities. These programs are largely concentrated in the Bureau of Indian Affairs and the Indian Health Service, but specific programs have been authorized by statute in the Departments of Agriculture; Commerce; Health, Education and Welfare; Housing and Urban Development; Justice; Labor; Transportation and in the independent agencies.
Despite the congressional authorization of special Indian programs in virtually every federal department, there is still an ignorance within the federal domestic assistance program agencies regarding the eligibility of Indians for federal programs and the federal policy regarding the utilization of Indian tribal governments as the primary service delivery mechanism at the reservation level. As a result, Indian tribes are denied the resources of the majority of federal domestic assistance programs in their efTorts at development and selfdetermination. No effort is made to include Indian tribes in the majority of federal programs, and to the extent that tribes do participate, it is often under conditions which are unacceptable,
There is a great variety of mechanisms employed for the delivery of federal domestic assistance to the community level. Rather than attempt to make sweeping recommendations with respect to service delivery which may not be appropriate in particular circumstances, the Task Force urges the Congress to adopt as a matter of policythe determination that each federal domestic assistance agency is charged to serve Indian tribes with due respect to Indian tribal self-government. Under such a mandate, the agency for Indian affairs should coordinate all federal agencies in working out procedures for such a delivery system-in conjunction with the tribes themselves-wbich meets tribal needs without requinuag an elaborate exception to the prevailing delivery system.
As an example, Interior and Justice to assume that Indian lands should be treated as public lands is to ignore the facts of Indian ownership intent.
Congress has made it clear in recent legislation that Indian tribal
Uoverninent is to be accorded full recognition throughout the system 11
of federal domestic assistance. (Gener*al Revenue Sharing; Concentrated Employment and Training Act; Joint Funding Simplification Act; Indian Self-Determination and Education Assistance Act; Indian Financincr Act). Because of the highly complex nature of federal doinestic assistance, there are still many inconsistencies in the treatinent of Indian tribal government, both with respect to the threshold question of the eligibility of Indian tribes and tribally-chartered organizations and with respect to the character of tribal participation in the delivery system.
There are at present over 1,000 federal domestic assistance programs listed in the Catalog of Federal Domestic Assistance, of which only about 78 are directly serving Indian tribes through a tribally-based delivery system at the local level. It would require a study of mammoth proportions to outline the specific steps which would be required to integrate Indian tribes and tribally-chartered organizations into the delivery system of all 1,000 programs. A Special Action Office on Indians in the White House, acting under a strong Congressional mandate, could work with the tribes and the various departments to develop an appropriate delivery system and to develop at the same time a planning mechanism to assure that goals are set by the tribes and federal dollars are targeted to reach those goals. This should be accomplished -Juring the process of establishing an independent agency for Indian affairs..
The Congress, in creating these 1000-odd programs, determined that they were of considerable importance in assisting state and local governments to meet pressing local needs. The promise of Indian tribal self-determination, which has been repeatedly made by both the Congress and the Executive, can hardly be implemented if Indian tribes are denied the right to participate in the baise programs which are made available to every other government in the United States. Given the relative severity of social and economic problems in Indian communities and on Indian reservations, it is suggested that not only should each domestic assistance agency be required to serve Indians, but that they be directed to devote a share of the total program resources in proportion to the need rather than in proportion to the population.
In order to assist with the implementation of this recommendation, to assure program coordination that will be necessary to receive maximum impact from federal resources, and to target federal programs for maximum benefits for Indian development, the Task Force has recommended the creation in the White House of a temporary Special Action Office on Indians.
It has been a relatively recent event in the history of the United States and Indian relations that Indian tribes and people have received assistance and services from federal agencies other than the Bureau of Indian Aflairs. Since 1929, following the publication of the Meriam Report, the number of programs from which agencies are authorized to assist Indians has grown from six to over six hundred. Of that six hundred, a study of the National Council on Indian Opportunity (NCIO) disclosed in 1974, only seventy-eight programs were actually being used by one or more tribes. In a follow-up study conducted by
the University of New Mexico Indian Law Center, it was concluded that Indians were not being supplied with adequate information about federal programs and that tribes continue to experience difficulty securing assistance from these programs because of inadequately trained personnel at the tribal level.
We find that the New Mexico study and the NCIO study reveal a consistent pattern that supports the results of current inquiries of Task Force A. We find the following:
1. Numerous statutes are promulgated by Congress and executed by the Executive with little consideration as to applicability to tribal governments-nor are these statutes consistently inclusive or exclusive of tribal government eligibility.
2. Inquiries and research have provided factual information which reflects a widespread lack of kn -- edge, awareness and understanding as well as inaccurate information within federal agencies regarding the legal and political status of Indian nations, tribes and people. Federal agency personnel tend not to understand the U.S. trust responsibility owed to tribes. They consider their agencies as not having a similar responsibility to preserve, protect and guarantee Indian rights and property as a segment of the "trustee" federal government. These circumstances have led to frequent, though perhaps unintentional, infringements on Indian rights.
3. Federal agencies do not provide a direct means for tribes to make their future funding needs known before appropriation requests are presented to Congress. This creates uncertainty concerning future program services and a less than adequate means for planning program changes and program expansion.
4. Federal agencies have little or no organization other than an "Indian Desk" to guarantee adequate and equitable delivery of services to Indians either as citizens or as governmental entities, and certainly as provided for in treaties, agreements, laws and Executive Orders covering the obligation of the United States to American Indians.
5. There continues to be, in spite of studies conducted in recent years, an inequity existing in technical assistance and services delivered to Indian tribes. The tribes equipped with capable technical staff and financial resources are more successful than smaller, less well-developed tribes in preparing basic proposals to secure funds for federal program assistance.
6. Federal Regional Offices are geared to serve well prepared "state and local governments," but experiences reported by Indians indicate that they are generally an inadequate and inappropriate vehicle for delivering services and assistance to Indian nations and tribes. Tribes have very little political competitive power when attempting to secure funds through this medium.
7. Federal agencies do not coordinate their efforts to develop guidelines and regulations, resulting in a complex maze of standards, procedures and accounting systems which heavily burden tribal government administrative capabilities. When different agencies create programs which are similar to one another, different guidelines are often developed for the same kinds of activity. It becomes difficult for tribes under these circumstances to develop coordinated and comprehensive programs at the local level.
S. When various governmental agency programs are required to be governed by boards, authorities and committees at the local tribal level, such direct relations weaken the tribal government and council controls are minimal.
Consideration has been given to a system of delivering services through a single agency. However, to reach urban, non-reservation and all Indians wherever they may be physically located, utilization of services from all agencies appears more appropriate. Location does not diminish the obligation of the United States to provide such services to American Indians. In the past, Indians have been refused services since "Indians are taken care of by the Bureau of Indian Affairs," and while this attitude must be overcome, it would be impractical to establish Indian agency offices at each location for small groups for that purpose only. The Indian agency, however, must be in a position to assist Indians to secure services from all such appropriate sources and, likewise, assist appropriate agencies to provide adequate services to Indians. This wold, of course, necessitate the Indian agency to be on an equal organizational level with all other governmental departments to be effective. Equal status for Bureau of Indian Affairs officials in govermental interrelations at every organizational level is important if Indians are to be given equal opportunity for services as any other citizen, but also, those services to which they are entitled to by virtue of being American Indians.
III. MANAGEMENT OF THE BUREAU OF INDIAN AFFAIRS
We have focused on the historical development of the Bureau of Indian Affairs, its present-day operation and the views and experiences of Indians regarding the Bureau's policies, practices and structure. We have reviewed the difficulties experienced by Bureau personnel and Indian tribes which flow from the subordination of Indian affairs within the Department of the Interior. We show in our report how the present structure, location and practices of the Bureau of Indian Affairs harm Indian nations and tribes with the consequent need to separate Indian affairs from the functions of the Department of the Interior.
The Bureau of Indian Affairs was originally charged with the responsibility of managing the United States' responsibilities to Indian tribes and all matters arising from Indian affairs. However, it has become the agency which manages the affairs of Indians-by its actions, it influences how Indians will live, use their land and, very importantly, how Indians will be governed. Indian tribes have opposed this "paternalism" for many years but in spite of frequent changes made in policy and structure, paternalism persists.
The Bureau of Indian Affairs has become a massive bureaucracy with nearly 18,000 employees. It operates with a complex and contradictory manual that has not been updated totally for nearly ten years. Yet, there is no adequate system for reporting to Congress or Indian tribes how monies are expended and whether they are expended in accordance with specific needs of tribes and the intent of Congress.
The Bureau of Indian Affairs has been regarded by Indians as both a friend and an enemy-a friend because it symbolized the continuing responsibilities of the United States to Indians-an enemy because
the Bureau has not consistently prevented the erosion of Indian rights and property and has, on occasion, been responsible for the erosion of these rights and property.
The Task Force, recoo-nizes there are three specific detailed investigations being conducted simultaneously, with federal administrative policies &-ad practices being reviewed in detail. These are riot entirely available to the Task Force; however, such data will supplement this report and will be available to the Commission for their use in the Final Report to Congress. These studies are: (1) Federal contracting;
(2) federal budget; and (3) BIA Management Study.
The Bureau of Indian Affairs has also on occasion involved itself directly in tribal elections to elect "suitable Indian leaders;" I mismanage Indian funds, tribal and individual leases; and act in concert with private commercial interests to use Indian natural resources more for the benefit of non-Indians. This occurs because:
1. The Bureau of Indian Affairs does not have a systematic, longrange program planning capability-it does not arrange its technical and service priorities in accordance with the future needs of and planned development for Indian communities.
2. The Bureau of Indian Affairs is staffed with some employees who are not comm-itted to the development of Indian lands and resources for tribal benefit. They are frequently unprepared and unsympathetic to effectively work for the interests of the tribes. The employees often lack current knowledge of resource development techniques, and other modern professional expertise is lost in older career employees because updatmig of professional skills is not required, as practiced in private activities. They often lack a ba-sic understanding of the tribes they serve and the needs of those tribes by not considering themselves as part of the "Indian community" life.
3. When local agency superintendents are requested to take immediate action to protect a tribe's resources or land interests, they are found to have insufficient authority to take action, nor do any emergency procedures exist. This reflects inadequate delegation of proper authority at the proper level of organization. In some cases, superintendents are reluctant to assume authority for lack of clarity and understandino-.
4. When an Indian tribe or individual needs to resolve a problem involving individual Indian monies, education and health services or land ownership, they must depend on a complex system of appeals through the various levels of the Bureau. This system is cumbersome and inefficient and usually serves as a block to problem solving.
5. The Bureau's resource management and economic development assistance activities are deficient and do not provide adequate potential for Indian use of Indian land and resources. This is especially true in the mineral and surface lands leasing programs.
6. Indians want to exercise control over Indian schools though they axe prevented from doing so because of a reluctance of the Bureau to encourage Indian parent and tribal government influence in this area of Indian life.
I A.I.P.R.C. Denver Hearings, May 8-9, 1976, Denver, Colo. (unpubItshed transcript).
7. The Buireau of Indian Affairs is misinterpreting and is inconsistently applying the "Indian p reference" requirements. This reflet adversely on the ability of the Bureau of Indian Affairs to perform
9. A centralized data processing system is being updated, but various other offices are establishing mini-computers without regard to the central plan. This will be expensive, undermine the central activity, duplicate or deprive the central system of bureau-wide data.
10. The Central Data System provides certain data, but comparative information to determine if the funds are distributed in accord with tribal needs as justified to Congress is not provided. Neither are there adequate checks and balances to determine if equitable use of funds to Indian tribes is being achieved.
IV. FEASIBILITY OF ALTERNATIVE INDIAN ELECTIVE BODIES RECOGNITION
AND ELIGIBILITY FOR FEDERAL SERVICES
Indian nations and tribes seek to exercise their right of self-government and all sovereign powers of any nation or state. The courts and Congress have recognized tribal sovereignty-the Indian tribes' right to govern themselves. On at least two very early occasions, the United States invited Indian nations and tribes to join the confederation of states and send delegates to Congress, but tribes chose to remain independent nations.
The Supreme Court has said that the United States is the trustee for Indian nations and tribes after the fashion of a greater power proecting, but not dissolving the interest of a lesser power. While thistmay be the proper relationship between the United States and the Indians, the actual state of affairs suggests that the United States is occupying Indian territory and using Indian territory in a fashion of aclonial power. Indeed, Indian lands and people are ruled by a governmentt department" in much the same way Britain ruled its colonial empires.
Four methods of establishing direct tribal participation in the national government, were discussed at two special meetings of Task Force No. 3; a fifth was later suggested.
(a) Election of Indian voting or non-voting delegates to the U.S. Congress from four Indian-created states or territories: Northwest, Southwest, TMidwest, and Southeast.
(b) A tribally-created "Union of Indian Nations" which exercises varying degrees of governmental authority dependent on the extent that Indian nations and tribes lend their own powers to it.
(c) Election of an Indian Board of Representatives or Commissioner empowered to define U.S. policy toward Indian nations and, direct the program development activities, and coordinate with all departments of the federal government as they relate to Indian interests.
(d) Recognition of Indian tribes in a manner sinuilar to the trust relation between the federal government and Xlicronesia.
(e) Election of a non-voting delegate to Congress from those Indian tribes choosing to participate in such representation; the Indian delegate o d sit as a member of the committee or committees consider:g Vdian legislation and legislation affecting Indians indirectly.
In view of the fact that tribes are autonomous, individual, and separate, they consider themselves independently in dealing -with the United States. Such a forced governmental organization on a national level is not compatible with tribal self-government policies. Therefore, many reasons have been advanced for not organizing. Reasons advanced axe as follows: n
1. It is not considered by Indian tribes and people to be desirable for the United States to create a political institution for Indians throu h which Indian nations and tribes may officially participate directTy in the national pohey-making and programm development activities of the U.S. government, but rather, it is an internal Indian decision whether such efforts should be initiated and how such tribe shall retain its own sovereign identity in any such organization. Since each state, county, and municipality deals as a separate entity within the federal structure, so do Indian nations feel they should be permitted the same privilege to deal directly as necessary.
2. The more than three hundred Indian nations and tribes (including Alaskan Natives) represent diverse social, cultural and political units which have only just begun developing extra-territorial institutions and alliances which constitute loose political entities among tribal governments.
3. There is no cleaxlv defined position among Indian nations or within the national go ernment concerning the political status of Indian nations and tribes.
4. Tribal efforts with national Indian organization support to initiate legislation within the national government are impaired by an administrative system and legislative system which does not have adequate capability, experience, or knowledge to decide Indian needs and interests, much less the right to do so without Indian consent.
5. An Indian tribe may be defined as being a. small nation wbich had its documented origin prior to the coming of European explorers and whose descendants have continued its culture, government and political existence. An Indian nation may exercise governmental powers over those persons who naturally are or who join and express allegiance and are acceptable to that established Indian nation.
6. An Indian is a native person who has primal allegiance to an Indian nation, who is entitled to be or who has (by formal procedure or birth) been officially accepted as being a member by appropriate Indian authorities with a distinct Indian nation; or where an Indian nation has ceased to exist but ancestral relationships have been significantly identified.
7. Congress does not have a unified method for overseeing the Executive as to whether it "carried out" legislative enactments as actually intended when concerned with Indian affairs.
8. The unilateral extension of citizenship to Indians by the United States did not greatly enhance the right of Indians. In some areas, it has been interpreted as a means for eroding tribal rights, sovereignty and preventing the exercise of self-government.
9. The total Indian population is not grouped in any location in sufficient numbers to have even the slightest influence in the policymaking or program development activities of the United States government for Indians. Indians, as a result, do not have direct representation in the national government.
10. Indian nations and tribes require substantial financial and technical assistance to subsidize tribal governments because of their small revenue base and, should such a national alliance be voluntarily developed, substantial financial assistance to facilitate the operation thereof would be necessary. Such plans advanced include an annual grant similar to the Canadian plan or by establishing a "permanent trust fund" from which the proceeds of earnings could be directly available to the appropriate Indian organization.
11. Indians do not have an effective method to redress grievances when the United States violates Indian rights or usurps tribal powers, especially as they consider such relations within the jurisdiction of the Legislative Branch.
12. More than ten Congressional committees exercise jurisdiction over matters related to Indian affairs, many of which are not adequately informed about United States/Indian relations. The Task Force finds that any plan must originate from Indian tribes themselves.
The Task Force recognizes the trend in Congress to consolidate committees and to reorganize for the purpose of achieving greater efficiency in the vast scope of the work of the Congress. At the same time, the Indian interest of the Congress suffers the same "horizontal problem" that is characteristic of the federal executive structure. The omission of Indian tribal government from the bulk of federal domestic assistance programs and the failure to integrate the federal trust responsibility into the mission of all federal agencies are both significant testimony to the disadvantages of the present system of committee assignments regarding Indian legislation. Given the need for consolidation of authorities and responsibilities among federal agencies and the predictable need for close attention and oversight with respect to the implementation of the many recommendations of the American Indian Policy Review Commission, the Task Force strongly urges the Congress to reinstitute the Committees on Indian Affairs in both houses.
V. SUMMARY CONCLUSIONS
This investigation has determined that these deficiencies still exist and that structurally the principal reasons for this condition are organizationally identified as follows:
1. The Congress of the United States, while determining how the American Indian should be dealt with, has deviated from time to
time in enacting legislation which has reduced lands, disturbed tribal governments, and threatened termination.
The eau of Indian Affairs is restricted by the Department of
Intrio ad is guilty of ineffective practices, weak in Indian advocacy, asuch control as to be unable to adequately plan, supervise functions for which it was designed.
ent of the Interior has failed in its conduct of the tnsibility. This duty requires the highest degree of skill, cae n dlgne Poica prsue, cofits of intret,an
administrative neglect o dut cte t s fa .
Justice Department the s neglect of duty:
i delays, conflict of interests, and handles Indian cases at too
lel of organization to be effective.
Ttencies in federal law, policies and practices in relation to dannations and tribes reflect a profound disregard for the rights Sto remain a separate people. The Congress, in P.L. 93-580, aits willin-ness to correct the illegal, unethical and immctices now being imposed on the American Indian.
1n er to remove all question and threat of termination, this
Tk oe recommends that: Congress enact a law which formally
t inning United &ates' responsibility to preserve, protect
andguaante Indian rights and proerty. This policy should not permit ttion of Indin lands endsources or terminate the trust rel ip th any Indian trIbe but should establish a continuing trust
2 to provide a more concentrated point for Congress to
do matters affecting unerican Indians, it is recommended
tess create a full Committee on Indian Affairs in the House of
Reprsenaties and a full Committee on Indian Affairs in the Senate.
Replace the two Subcommittees on Indian Affairs under tie s on Interior and Insular Affairs in the Ijuse and Senate and
conoliateIndian activities from all other committees of each of the houses. ECommittee should have staff in sufcient numbers qualified affairs through experience and descendancy to insure that Ctee members wil have maximum access to informed assistance. Tttees should have the usual power of oversight and power to evewall legislation which mnay have impact on Indian nations, tribs and people.
3 order to remove the serious "Confict of Interest" problems,
ts problems of a separate administrative layer at the detntal level, and to provide administrative control with legal couselobligated to Indian clientele, we recommend that:
Cogess establish an "Independent gec for Indian Affair8." Vhe
autoriy and responsibility for matter-s relating to Indian affais or of, re I ,' n t:
a out of ratwns wilh Indan nationss ad tibes shall be removed
fDepartment of the Interior and vested in the Indepedent Agency. St n irs bedevoted technical
(a) The Independent Aecy shale powered to codnt
oealprogra need of Indan nations, tribes and people. In ac-
cordance with this power, the Independent Agency shall be mandated to participate in all program and budget planning activities of other federal agencies, bureaus and departments whose pro,grani,, are available to the citizens of the U.S. and as such, to
the American Indian tribes and people.
(b) The Independent Agency shall include a legal department
responsible for providing legal protection of Indian rights and property. The legal part of the Independent Agency shall be authorized to serve as the counsel to advise the Agency. The Independent Agency shali have the option to initiate litigation with approval of an4 on behalf of Indian nations and tribes or when appropriate, recommend that -the Department of Justice take the
(e) The Independent Agency shall have a "Commissioner" as its
head, appointed by the President of the United States, subject to Senate confirmation. The Agency head should be appointed from a roster of candidates recommended by tl e Indian community. The head of the Agency should be appointed for a fixed
(d) The Independent Agency shall be mandated by Congress
to design an Agency budget, program and accounting system in a fashion which permits full and direct tribal participation in all elements of every program being provided for their benefit by the United States. The Congress' mandate should include a requirement that a detailed "national Indian budget" be drawn
up in addition to an Independent Agency budget.
(e) The Independent Agency for Indian Affairs shall be structured so there are "two' levels" o administrative authority. i.e., Central Office and the Agency Office at the tribal level. The present Area Offices of the Bureau of Indian Affairs shall be abolished and replaced with regional service center support offices
without line authority.
(f) The Independent Agency shall be mandated to develop a
lone-range tribal development program which will reflect the annual funding needs for human and natural resources of each tribe. This program should be projected for at least ten years and as each budget is submitted, a newyear is added to the projection. The long range plans should be updated with the idea of
meeting projected goals in the long term.
(g) The Independent Agency should be charged with establishmg an agency office for each reservation, pueblo, band, rancheria.
and Alaskan district. In the case of smaller communities, a local office extension of an agency should be established at each locality
to provide technical assistance, services and protection.
I The Task Force on Federal Administration and Structure of Indian Affairs believes that several immediate actions must be taken by Congress and the Executive Branches to improve present Indian admini ration and bring about more vigorous protection and assistance to Indian tribes while major changes in administrative arrangements are being made. Therefore, we recommend that: A "Special
Action Office for Indian Affairs" be created under the direction of the President. This Special Office be charged with the responsibility of planning and directing and with administrative transactions of Indian ayairs into the Inde endent Agency for Indian Affairs.
(a) Re Special Action Office be directly responsible to the
President, Congress and Tribal Governments.
(b) The Special Action Office be charged with the responsibility
for developing a plan for organizing the Independent Agency for Indian Aff airs and executing the administrative transition subject to the approval of Indian tribal governments and the
(c) The Special Action Office for Indian Affairs be authorized
to review and comment on any actions of the Secretary of the Interior and the Commissioner of Indian Aff airs which impact on
Indian tribes and nations during the transition.
(d) The Special Action Office be authorized to develop a plan
for Indian Service Regulations to replace Civil Service Regulations for the Independent Agency.
(e) The Special Action Office be authorized to exercise its
duties for a three-year period from the point of beginning.
(f) The Special Action Office be directed to develop a government-wide plan for the institutionalization of "Indian Impact Statements," which would be required of any government agency or state government which intends to initiate actions which will
impact on the lives and property of Indians.
2. The Bureau of Indian Affairs should be immediately authorized to fund Indian programs by direct grants in addition to contracts.
3. All authority presently vested in the Area Office of the Bureau of Indian Affairs be distributed between the tribal government and the local agency as a result of negotiations between the tribal government and local agency superintendent.
4. Tribal governments be permitted to exercise veto power over the selection and employment of agency superintendents and branch chiefs. This process must be established in accordance with a negotiated agreement between the Commissioner and each tribe.
5. The Bureau of Indian Aff airs submit a full report of budget totals and budget breakdown to each tribal government and the, appropriations committees before the appropriations processes begin.
6. In both administrative and judicial proceedings, Indians should be assured and allowed to select competent, independent counsel. To the extent that a tribe cannot afford counsel, the government should undertake to finance representation.
7. In cases free of conflicting governmental interest, the government should fulfill its responsibilities under federal law to represent Indian tribes. This representation should be under the direction of the client, not the government.
8. Congress enact an "American Indian Tribal Government Assistance Act" through which direct appropriations for tribal governmental needs are met in the fashion of revenue shar*g.
9. Congress not enact any laws to organize an Indian elective body for purposes of representing Indians in policy and program development activities but permit tribal governments time and opportunity to explore the issue more fully.
ADMINISTRATION OF THE TRUST
A. REvirw OF THE POLICY
The relations between Indians and the United States have been historically dictated by the nature of Indian land ownership and the unquenchable desire of U.S. citizens to use and occupy Indian lands. The Department- of the Interior and the Department of Justice have become the primary instruments of the United States government responsible for both transferring Indian land to non-Indian ownership and, paradoxically, responsible for protecting and guaranteeing Indian interests in the land and resources. This conflict of missions has been the subject of numerous studies and analyses, with the frequent conclusion being that it is nearly impossible for these two agencies to serve both the interests of the United States and the interests of Indians. Yet, in spite of these conclusions, the conflict has persisted for over one-hundred-twenty-seven years since the establishment of these departments.
To remedy this conflict, administrative and policy alternatives must be, found. A closer look at the nature of Indian land ownership and the development of Indian trust administration is, therefore, warranted.
At the time of the first settlements by Europeans on the North American continent, no less than five powers (Britain, France, Netherlands, Spain and Sweden) laid claim to the sovereignty over the eastern seaboard. The Europeans justified their occupation and colonization of the New World by asserting the need to extend the knowledge of Christianity to the native inhabitants and to bring the infidels and savages living in the New World to human civilit and to
settled and quiet government. The Catholic and Protestant monarchs both asserted title to the land; however, they differed in the sources of title.
... the former derived their title from the Pope who made the donation for the purpose of extending the kingdom of Christ; and the latter occupied the territory under the same pretence, without a grant; but neither asserted that prior discovery gave any right to the soil.' [Emphasis added.]
The right to occupation was therefore derived through the Pope and from the obligation to Christianize the native population. Most importantly, the right of occupation was derived from permission granted by tribes settled on the land. The nature of European title, was that of "use and occupancy" and, as Blunt points out, native title was viewed in the same manner:
In the British provinces, although individual instances may be found in which Indian rights were violated; their title to the soil was always respected by the public authorities. It was not, indeed, regarded as a fee simple, which cannot properly belong to wandering tribes in a hunter state. But that they had a right to territory within certain boundaries and that they were treated with by the colonid govemI Blunt, Joseph. A Historical Sketch of the Formation of the Confederacy Particularly with Refemos The Jurisdiction of the General Government over Indian Tribes and the Public Territory. V. 11.
ments from the first settlement of the country until those governments became independent of the Crown, to induce them to transfer and sell their title to the whites, are incontrovertible facts.2 [Emphasis supplied.]
When the colonies of the various European powers began to grow anl(l expand, conflicts erupted between them as they encroached into one another's territorial limits. It was at this point that the principle of "the right of' prior discovery"' was strongly asserted, particularly when claims of title could not be supported by actual occupation. For over three hundred years conflicts between the European powers erupted time and time again as a result of the uncertain limits of each territorial claim. From the time of the first settlements to 1795, the purpose, of the colonies evolved from mere missionary outposts of
Christianity to outposts of commercial enterprise. With that change came a radical alteration in the nature of European title to the land. The purchase of Indian lands and their subsequent occupation by Europeans for an extended period of time had caused the evolution of European title from that of "use and occupation" to a status of "fee" which was vested in the Crown and colonies and later, the United States. There was no similar change in the recognized Indian interest in territory. Indian title continued to be characterized as being one of "im ere use aid occupancy". The tribes' right to exercise sovereignty over their own territory was, to a considerable extent, impaired or diminished-and their title of use and occupancy was considered by the Europeans to be extinguished either by conquest or by purchase.
The myth that Indian title is nct one of possessory interest and "merely one of use and occupancy" grew out of an arrogant belief that Indians are "incompetent" to hold and control land. The ancient religious belief that Indians are "infidels, barbarous, uncivilized savages" survives to this day, though these views are expressed in more subtle ways.
The myth that Indians do not retain full title to their lands and all interests in natural resources, but have only temporary use until that title and those interests are extinguished by conquest or purchase was and is perpetuated by the U.S. courts. In 1810, the Supreme Court held "that the nature of Indian title, which is certainly to be respected by all courts, until it is legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the State." I
In a later Supreme Court decision, the character of Indian title was described as follows:
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with legal as well as just claim to retain possession of it, and use of it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all
11Tid, Pp. 11-12.
Fletcher v. Peck, 6 Cranch 142 (1810);
others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy . to give also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the Crown or its grantees. The validity of title given by either has never been questioned by our courts, it has been exercised uniformly over territory in possession of the Indians. The existence of this power must negate the existence of any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it.4
As Cohen points out in a paper titled "Original Indian Title:"
a federal grant of Indian land would convey an interest, but this interest wouldonot become possessory interest until the possessory title of the Indians was terminated by the federal government
The only method by which Indian possessory title could be terminated by the Federal government was, and is today, through obtaining Indian consent and the right of purchase.
it was against this historical background that the primary responsibility for managing the United States' relations with Indian nations and tribes was transferred from the War Department to the newlycreated Department of the Interior on March 3, 1849. The new De tment was created by consolidating the functions of the Patent
in"et General Land Office, accounting authority for officers of the courts, Department of Indian Affairs, 'and the Pension Office under the su visory powers of the Secretary of the Interior.
With the transfer of the Department of Indian Affairs from the Wax Department, the Secretary of the Interior not only assumed the supervisory responsibility in relation to the Commissioner of Indian
Affairs, but the role as the primary agent of the United States res 'bl for protecting the rights and property of Indian nations
From the very outset, the mission of the Department of the Interior came, into conflict with the mission of the Indian agency placed within it. There had been substantial conflict between the mission of the War Department (to open up lands for white settlements up to the west banks of the Mississippi) and the mission of the Indian Service, (direct and manage all Indian affairs and all matters arising out of Indians' relations to preserve peace and friendship with Indian nations and tribes). The same conflict emerged within the Department of the Interior. John Collier illustrates a point in his book, Indians of America:
4 Johnson and Graham's Leases v. McIntosh, 8 Wheat. 572-90 (1823).
6 Cohen, Felix S. Original Indian Title, Minnesota Law Review (1947).
6 Ibid, p. 294.
7 Organized pursuant to an Act of Congress, June 30,1834.
8 Established pursuant to an Act of Congress, July 9, 1832. Providing that the Commissioner of Indian A rs under the direction of the Secretary of War shall "have the direction and management of all Indian Affairs, and of all matters arising out of Indian relations . ."
9 The enactment of the Northwest Ordinance by the Continental Congress in 1787 spelled out the intent of Congress that the U.S. shall protect Indians from external encroachments on their rights and property when it stated that ". . laws founded injustice and humanity shall, from time to time, be made for preventing wrongs being done to them ."
Subsequent legislative enactments demonstrate the intention of Congress to regulate 'U.S. citizens in trade and intercourse with Indian tribes (Trade and Intercourse Act. First Cong. Sem 11 Chapt. 33, 34. July 22, 1790) (Trade and Intercourse Act, 23rd Cong. Sess. 1, Ch. 161, June 30, 1834, 4 Stat. 729), as a clear effort to protect Indians from "wrongs done to them." Presidental authority was required for enforcement of these Acts to be carried out by the Secretary of War. And the obligation of the U.S. to protect Indian tribes and nations is firmly established in the courts: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), and U.S. v. Kagama, 118 U.S. 375, 383-84, (1886).
10 Collier, John. Indians of America. 1947.
In 1828, Andrew Jackson was elected President. He was a "borderer" and had been a famous Indian fighter. Immediately he put through Congress an Act called the Indian Removal Act which placed in his own hands, the task of leading or driving all Indian tribes to some place west of the Mississpippi River."
The "plenary power" of Congress to regulate relations between the United States and Indians 1 had been dealt a serious blow. The Executive Branch had emerged as the dominant force in Indian affairs and sought to strengthen its hold by becoming the "expert" in all matters associated with Indians. The Congress had become a rubber stamp to the designs of the Executive. Though Congress had been a party to the violation of treaties in the past, it seemed to cast aside its solemn constitutional charge and its policies of respect for Indian rights and territories. It seemed to embrace General Francis C. Valker's view concerning honor toward Indians. Writing in 1871 as Commissioner of Indian Affairs, he said: "When dealing with savage men, as with savage beasts, no question of national honor can arise. Whether to fight, to run away, or to employ a ruse, is solely a question of expediency."
The early 1870's found the Interior policy-makers in the midst of a dilemma. They had successfully reduced Indian territory to tiny enclaves segregated from non-Indian populations and instituted a policy of non-interference. The question was whether this policy ought to continue or a policy of civilizing and assimilation ought to be emphasized .. a policy which would require dismantling Indian reservations and reservation life. John L. Freeman wrote in his 1952 doctoral dissertation the following observation about this period:
Having relieved the Indians of most of their land, having confined them to reservations and forced or bribed them to remain peaceful, the United States was confronted with the problem of whether to continue a system which would minimize the necessity of further adjustments by Indians, yet was an apparently unending system conflicting with American individualistic ideals, or to take individualizing steps which would end the system, yet which might involve more difficult adjustments for the Indians than ever before. The moral burden of what the United States had been doing to the Indians finally caught up with the policy makers . .13
The solution to the dilemma was generated by Interior policymakers who offered the General Allotment and Citizenship Act of 1887.1' Between the two policy options, the choice was made in favor of civilization and ultimate assimilation. Survival of the fittest, the doctrine of social Darwinism, was the ruling system of thought. The view was that Indians ought to be given a freedom of choice on the same basis of other citizens. Each Indian ought to have the freedom to compete, to assume responsibility and participate in the national economy the same as all citizens. The flaw of this system of thinking was that Indians were given the choice of surviving in. a white and foreign world with inadequate preparation or die out as a people. Many Indians chose the latter. Indian societies which had been weakened as a result of protracted wars or neglect by the government which promised to protect them were now being forced to make a final choice-either become "white men" or suffer the consequences.
1 Il1d. p. 122.
Constitution of the U.S., Article 1. S(ec. 8, Clause 31 1 Freeman, John L. The New Deal for Indians, p. 39.
'421 Stat. 33Q.
The role of the Department of the Interior as the prime agent of the United States caxrymg out the national government's responsibility to p dtect the rights and property of Indian tribes and people, had dekrly been set aside by, the policy-makers. Prior to 1870, the only methods by which Indians were protected against non-Indian encroachments on Indian tribal or individual rights was through military olicing actions or by direct action of the courts. Neither method proved to be a fully successful means for enforcing laws or protecting Ihdiam.
On June 22, 1870, Congress created the Department of Justice.15 Its function was to represent the national government in the federal court in cases of exceptional gravity and importance. The Department of Ju'stice thus became the legal arm of the Executive and each of its Departments. Since the Secretary of the Interior was obligated to Oro tect Indian rights and property, Congress provided a means for the Secretary to protect them by enacting legislation designed to permit legal action."
'Specific statutory authority was enacted to permit the Department of hatice to represent Indians in all suits at law and equity. The U.S.'Cade provides that:
In, aU States and Territories where there are reservations or allotted Indians, &e United States district attorney shall represent them in all suits at law and
Because of the broadness of this provision, it is probable that this 'factor. explains the failure of the Department of Justice to, adopt a consistent.policy on when the U.S. district attorneys 'appear in courts on. 156half of the Indians. It is surely the case that not until 1932 did the Department of Justice begin setting out its policies regarding the
*epres6ntation of Indians.18 The defense of Indian i hts and property k courts of law then became the responsibility of oth.the Departments of Interior and Justice. Claims by Indians against another p1party or by another party against Indians demanded specific action [fint on the paxt of the Department of the Interior and secondly, by
I tbLe Dairtment of Justice to defend Indians in legal matters "in 4filch e United States has an interest." 19
By statute 20 and by judicial decisions,21 the United States has obligated itself to preserve, protect and guarantee the rights and property of Indian nations, tribes and people. This obligation is frequenfly called the "trust responsibility." Executive authority for "Mir&tering or managin the trust has been vested almost entirely lin thd Secretary of the Interior and the Comm sioner of Indian Affairs. Carrying out the duties of the trustee (United States), the Cretaxy, Commissioner and their delegates are required to perform 4he1r:,duties with care, skill and diligence commensurate with their
16 StWL.162; 28 U.S.C. 501, 50&
If Act of Marob 3, 1893, 27 Stat. 612, 63L
It U.S.C. 25, Sectlon 175.
,.MuWdoe Depmtment FileNo. 90-2-0124. Memo of July 29,1932, defends litigation relating to oil royaltlet or other mineral rights and represents Indians in suits involving federal and state taxes.Justice Departmens Tge No. 90-2-M2-1. Memo of July 29, 1932, representing Tndians in matters relating to their allotments or reservationsor to property overwhich Cougmss has provided United States supervision.
Felix S. Handbook of Federal Indian Law, p. 252.
20 = 162; 28 USC 501,503, Trade and Interoourse Acts, Northwest Ordinance K Cherokee Nation v. Cle 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1&32); United States vKonma 118 U.S. 381 (1886).
professional capacities."2 Though the Secretary of the Interior is the prime agent of the trustee (U.S.), there is no statute, court decision or statement otherwise in law that the trust responsibility is limited only to the Department of the Interior. Indeed, any agent of the United States, when carrying out the U.S. trust responsibility, is required to perform such duties with the highest degree of care, skill and diligence.
Performance of that trust has historically related, and now relates, to the entire gamut of human and community life. They are required to perform their duties as agents of the nation with the highest degree of good faith, solely for the benefit of the Indians.2
Officials of the Department of Justice, though not the prime agent of the trustee, are bound to that same requirement of professional conduct.
In 1934, Commissioner John Collier announced a New Policy toward Indians which radically departed from the administrative policy of the Executive Branch. Instead of a "policy of confinement" or a policy of "Indian civilization and assimilation"-both of wich had failed-Collier advanced a policy of federal protection, strengthening of self-government, economic and technical assistance and coexistence. For the first time since the founding of the United States, the Executive Branch had formulated the rights and property of Indians instead of the clear policies of genocide aimed at the total destruction of Indian tribes and people. The Indian Reorganization Act of 1934,24 for the first time since the Executive Branch assumed the dominant role in Indian affairs, was seeking to diminish its own mfluence and power over the Congress and Indian tribes. Indian tribes were to receive vigorous protection by the United States government; they were to be recognized as having formal governments with full powers of governance within the exterior boundaries of their territories and coexist with non-Indian neighbors.5
The Chairmen of the Indian Affairs Committees in the House and Senate both seemed initially willing to support the Indian Reorganization Act but, as more of Collier's proposals became clear, their eager support began to evaporate. In Freeman's review of this period, the reason for this diminished support in Congress is plain:
Basic . was the question of the goal of the policy: Were Indians to be made "full-fledged citizens" by this process? Some Committee members were wary of setting up Indian groups which would never be touched, never be broken up, never bear the same responsibility as their white neighbors. They were wary of any policy which might move back into Indian group life any Indians who had grown accustomed to living apart from Indian group life. Behind this was the basic Congressional doubt: Will Indians ever be assimilated? 26
In 1934, it was the Congress which asserted the policy of assimilation which had been so disastrous to Indians and their livelihood and not the Executive Branch. For that reason, a major effort on the part of the Executive to conform to long-standing Congressional policies to
2 Bureau of Indianl Affairs, Veeder, Win., Federal Trust R'eponsiblfiteefor Managing Ndian Forest With Points and Authorities ia Support, Memo of Sept. 19, 196s, ii.
3 Ibid, p. ii.
34 Act of June 18. 1934.48 Stat. 987, codified at 25 U.S.C. 476, et 2eq. (1963). "The D(evelopment of Collier's IRA Policy 75., 5-A-58, 395, 60660-45-120. Federal Archives and Records Service, Fort Worth, Texis. Indian Services Policies; Galley One, p. 1. 30 Freeman. John L. The New Dealfor Iadiaas, p. 132.
tec Inian trbesandpeole waa dealt a vigorous blow. 'The
,onres hd om down in su~pport of outmoded Execuitive policy
frthe policy goalpo "civition and assimilation."
Coe the Huse Committe thatthe Indians had bee sbjctd toolon to the whims ofthe Commsioner or the
Seci~a o th Ineror, cased by C~ongress' delegation of its plenary powes oer Idia afairs to the De~partment and the Bureau." In
dthe broad discretionary power vested in the Secretary ould be istributed in two directions: to
c with each new ner. Only Congress could give
basc sabiity wihinwhih Inian tribes could go as "fast an~d as far" a they
t trden of proof on the Commissioner
w nt heeded by the Congress though a
oiof Indian Reorganization Act did
pof President Roosevelt, Collier's observatins egadingan nstblepolicy associated with changing Secr'etares nd om isioersre-megedaf er isdep arture. In su cceeding
yeas flloingth Ne Del Ea, heDepartment of Interior eased
i"policy guided in part by the conclusions of the Hoover a i body est abi dto organize the Executive Branch.
t video the first formal definition for what became the Termination
Ef Congress with this policy came in the form
-ofHose onurrntResoluio 108.11 The Termination Policy had
phrase to describe the civilization and assimilation
BO PRACTICES AND PRO ES
.....t of te Interior and la the Dep ent of Justice
hadbecmehepricipal governmental epartmet responsible for
tharUnited Sates' trust responsibities as regards the
proecton fJndian rights and prperty.1 The piciple that guided ~ pfpra~ice prd~ursinthe administration of Indanaffir was based on an interpretation of Chief Justice Marldecision which contaied this description of U.S.,
with Indian tribes and people:
Sperha be nominated domestic dependent
na te independent of their
wil1,whih usttae ffect inpitof possion, whe their right of posseso
ceaes Wilhiethey are i tt fpplae hi eain to the Uitd$States
resmbes ha ofa ar tohis guardian.32 [Empai suppli.
werein ~stte f heplesnes ad "icometece. Gien this state
of afais, he xectiv, trouh te Dpartment of the Interior,
oblig ation fth UdState(stsuprie n)eult.h itra
ward relationship gave rise to the promulgation of administrative procedures and practices which effectively reduced Indian reserved territories and communities to a status of colonies controlled by a
government department. The authority of the Department of the Interior to control Indian land and resources is thought by the agency administrators to be absolute. Indeed, broad interpretations of the Interior Secretary's powers permit an absolute exercise of power which has rarely, if ever, been checked by the Congress.
The Secretary and the Commissioner of Indian Aff airs could exercise absolute power within the scope of their authority. Such power over a people could not be exercised even by the President of the United States and is contrary to the very principles and values on which the creation of the United States rests. The powers of thi3 Secretary and the Commissioner over Indian aff airs have been used to benefit private, non-Indian interests and the economic and strategic interests of ithe United States.3 Only on rare occasions has the
p ower of the Secretary been used to fully benefit the interests of ndian nations and tribes. This is demonstrated by the extremely
-complex procedures developed within Interior designed to "protect the interests of the tribes."
1. PROCEDURE FOR REDRESS BY WAY OF ADMINISTRATIVE REMEDY
Due to the extremely broad discretionary powers of the Secretary of the Interior, many decisions regarding boundaries, ownership of land, eligibility of an Indian for services and the authority of tribal governments to act are made in the Department of the Interior. Procedures within the Department tend to allow the Secretary to exercise administrative, judicial and legislative powers at whim without checks on the misuse of powers.
The Department of the Interior has assumed the role of caretaker of Indian lands and resources. Such a role dictates the procedures for using Indian lands and resources. The procedure for gaining consent by the Secretary of the Interior leads to an administrative determinaetion. A request for such a determination may emanate from a tribe or an individual Indian or from within the Department of the Interior. The procedure for Indians to gain an administrative determination involves the following steps:
(1) Request that an agency superintendent take action;
(2) Request that an Area Office- Director take action;
(3) Request that the Commissioner of the Bureau of Indian
Aff airs take action;
(4) Request that the Secretary of the Interior take action.
The Office of the Solicitor is included in this process at every stage after the superintendency. The Office of the Solicitor is asked at the regional level by the Area Director to legally interpret whether authority exists to respond to a tribal request. If such authority is found lacking, then the Commissioner is asked to make a determination. The Indian Aff airs Division of the Solicitor's office is then asked to render an opinion regarding the power of the Commissioner to respond to the request. If the Commiissioner is found lacking in authority, 11 Caso) exaniples here demnon;t rate this point ns do0 the numerous case examples recorded in recent Senate and T1lon.e hearirigs includIing the Subconimittee on Administrative Practices and Procedures bearings on Indian resource protection and administrative conflicts of interest, 92nd Cong., 15t Sess.
authrit, thn te Inerir Soicior s sked th ener an co piion.
detrmiedby heolcitr' ofic throughout. If anIda rb s notsatsfed it a inl amiistatve determination, then the
terinaion beom fial nles vertured by th~e Cogess or the
courts. ~ ~ ~ Asapatclmtetecurts have avoided patcptg
in uesios rlatd o Screaral eciios. orthe tribe or nivda
foradintrtiedetrmnaios srdicatenn asupon o
dutes iththehihes dereeofcar, sillan dlgnce. With, so
Tocoplcae h pocdue o solings prolm raning forth another to Dprmn mus serv pul ic interests o coptit thnae-
8aiL JwiL-Chanla Project
The Bureau of Reclamation developed a plan to divert t of acre feet of water from rivers and streams in Colorado, west of the Continental Divide to the Rio Grande River in New Mexico, of
the Divide to increase the supplyof water for the City of Albuquerque, .New Mexico. The waters that were to be diverted either through or were adjacent to Indian lands. Both the Bureau of nation and the Bureau of Indian Affairs were charged with sponsibility for the water diversion plan. Throughout the c study, neither agency sought to determine the future impact of the '-an Ja-h diversion on the various Indian tribes. The only
reco-nition given to the needs of these tribes is contained in a paragraph of the overall study which notes that the tribes do have rights to the water, but no quantitative studies have been conducted to determine the future Indian need for water. No effort was by either the agencies or the Secretary of the Interior to determine the future needs of the Indian tribes. Congress was never advised that the interests of the Indian tribes may be violated by the diversion of waters away from their reservations. Because of this failure, the Indians now have inadequate water resources with which to develop their reservations.
The emergent needs of these tribes for water give rise to demands that the tribes' water rights be protected by the Secretary of the Interior. The Bureau of Reclamation's response has been that the tribes' rights to water have been "inversely condemned" by Acts of Congress authorizing the San Juan.-Chama Project. The failure to inform Congress about the rights and interests of the Indian tribes in the first instance is now being covered by further deceptions which suggest that the past wrongs can only be corrected by "buying the tribes' rights" to water. The Indian tribes involved need water for agricultural development. To "inversely condemn" the Indian tribes' rights to the use of water may serve the public interest but it t surely does not serve the needs of the Indians, who should be sidered the "local public." (For further analysis see Appendix B.) Quileute Lands and BoundarieB 3
The Quileute Tribe had been told by the Bureau of Indian that the Quileute Reservation included two parcels of land amuoni to a little over 590 acres. The two parcels were separate and surround by the Olympic National Park administered by the National Park Service. The Tribal Council had begun plans to build new homes on I he Reservation, but discovered that the space needed for their ho included lands being administered by the National Park Serie Many of the older members of the Tribe had asserted that the nation was actually much larger and that the National Park illegally operating within the exterior boundaries of the Reservation.
For several years, the Tribal Council discussed the matter with BIA officials and the National Park Service, but nothing had been accomplished toward resolving the Tribe's land problems. Mter conducting a thorough land title and boundary study at their own expense, the Tribal Council concluded that the National Park was indeed illegally occupying tribal land. With its document of
I Task Force 03 Meetlng wth (overnor's Indian Advisory Council, Stste of Washington, AprTil 1976 Earl Penn, Vice Chairman, Quileute Tribal Council.
fats te rialCoil sought aSretaxia determination to settle Af4 fiyda eido atnteQie Tribal Council was
bouadxis o te awold! bed sabihe"xlin the iet advised noireulrtis ided occurred trefre th Sertr woldhvetodcie nfaoro teNaioa Prk heTrbmpo
tesed tather tudy ha nr~o een areull exmie by th~~e Couci hd ee ifomalyaise that th Soliio' ofieu~ wic
reluctant toos reomn aoal ramn fteQie rb
beaue aleattev te rbswudse iia euno hi
8. PROCEDURE FOR REDRESS BY WAY OF LEGAL. REMEDY
The Department of Justice enters the arena of Indian aff airs when circumst ances atrise which require legal protection of Indian rights sand property. Actions of the Department of Justice designed to legally protect Indian rights and property are predicated on two major decisions: (1) Secretarial approval of an Interior-developed "litigation report" which requests the Justice Department's action and (2) a determination by the Attorney General or his delegates that sufficient grounds exist for initiating litigation .41
It is the practice within the Department of Justice to consider litigation relating to Indian re-sources after a "litigation report" has been submitted by the Interior Solicitor's office and when the proposed litigation does not involve a suit against the United States.
For an Indian tribe, the question of filing a suit against a state, commercial interest or private citizen normally requires an effort to "exhaust all administrative remedies." Failing this, a request is made of the Bureau of Indian Affairs to seek judicial relief. The Bureau of Indian Aff airs then requests the Office of the Solicitor to draft a "litigation report." The "litigation report" is routinely sent to the Assistant Attorney General of the Land and Natural Resources Division of the Justice Department and then to the Chief of the India Section. Within this section, the "litigation report" is reviewed by one or more of the nine lawyers. The following practice is used~ to determine whether litigation will be initiated: 42
-Determine what is being requested;
-Determine whether or not information is fully provided that
would warrant the requested action;
-If there is insufficient information, the report is returned to the
Interior Solicitor's office with a request for additional details;
-If there is sufficient information, the Chief of the Indian Section
notifies the U.S. Attorney that a request has been received and a request is made for "another view." The U.S. Attorney may Provide information about the political circumstances and the Pocality of the proposed litigation as well as information about any Supreme Ciourt decisions that may have a potential impact
upon the judges in the local court;
-The Indian Section then acts as the plaintiff in the court on behalf of the Department of the Interior.
There is no procedure within the Department of Justice tfiat requires administrators or lawyers to communicate with Indian tribes who may be affected directly by proposed litigation.41
The sole contact with Indian tribes during the early stages of litigation is "presumed" by Justice Department officials to be made by the Solicitor's office in Interior. However, there is no procedural method or requirement for the Solicitor's office to be in touch with tribes before or during the litigative processes. The presumption is made that the BIA is in contact with the affected tribes. It is the BIA which complains frequently about -not having knowledge of litigation either before or during the initiation of court proceedings and seems least able to communicate with tribes regarding the legal 4Mileem Flint, Chief of the Indian Section of the Division of Land and Resources, Department of Justice. interview conducted by Rudy Ryser, Task Force #3, January, 1976. d Ibid.
proecionofther ighs ndproperty becuse they lack iformtion:.'
Th mjo cncssonmade on th ate of contactingtrbsi
Po~ U_ er ae onacedwith the prsmto
U.S eitoney an Slictor i th vao s el ad itonalxx
Thei actons n any case axe pursuant to a request presented by the
BIAAra Ofie Dretororan ffcia o th IterorDepartment.
Dirct ccss o he ied slcitor by tribes is generally considered
trl orinace an elctins fild olcitors have provided drc
heaven lgal epreent tiot protect their inersts insite~ of a
Th admnistativ de elomet adsubsequent initiationo
frob thee t seen earsto ompete." Dluring that time, the nme
of lwye wo sevedas oun e acse may be several. Thisisduie
to sustatia tr-ver rate in emplymnt among lawyers w*ho
wor-: ortheJutic Dparmet's IninSection, or Land and
Natual esorcesDivsio and Interior's Solcitors Office. Though
lawerar. aiedup onidvidu~acass thecase load and thevayn
degres f eperenc inIndan aw ombnedwith a new set of fces
Thouh. poceures exist in both the Justice and Interior Depart-.
mens t leall an adinitati~vely potect nd manage Indian
; ifthreisgongtob atrustresponibility then ther's got to be ashore proedrefortrbe orbadsthatwan to requs legal asitance because man
time ittake tw yers t ge appova tocommncepariipation.4"
If liIniannaio cnnot depend on direct lea protectin byth
seciie an pad 'fro trbalfunds.Wihtspocyitaerso
triestht they mus haeteir own attorney to se that teUS In wo ecet istaceswhe quests were made for the Secretary
to fnanialy asis a tribe to hire legalcounisel, the Secretary denied
41 ntrvewwit Mle Fint Jnury10; Inteview with Alan Palmer, ffc of the Soiitr Jauar
kn imelitiatin an co sqety it tkes, i ase s wih anIod leng t of ie fo Stieo maeadcso hte eI on opriiaei alwsi" Kn upr rblCusl inst
on tribal land because there was no administrative or legal remedy. As a consequence of this and other blocks to tribal efforts to protect themselves, Indian nations and tribes have sought legal assistance from organizations like the Native American Rights Funld,51 and the National Congress of American Indians. For those tribes that have their own revenue, sources, tribal legal counsels are hired to Initiate legal actions to protect tribal rights and property. At an estimated rate of twenty-five million dollars a year,512 Indian nations and tribes pay from their own treasuries to protect themselves from state encroachments,, commercial and federal government confiscation of Indian lands, resources and rights.
C. REVIEW OF THE TRUST ADMINISTRATIVE STRUCTURE
The administrative and legal 'procedures outlined in the previous section are reflected in the structures of both the Interior and Justice Departments. Indian affairs is structurally totally within the Bureau of Indian Affairs at a level -equal to the level of the Assistant Secretaries for energy and minerals, fish, wildlife and parks, and the Assistant Secretary for Land and Water Resources.. The Commissioner of Indian Afairs, unlike the Assistant Secretaries, is directly responsible to the Secretary' of the Interior. As a matter of course, the Commissioner relies to a large 'extent on the Office of the Solicitor for direction on matters related to administrative powers and definitions of legal authorities of the Commissioner. The principal elements of the Indian affairs structure in the Department of the Interior include therefore: the Office of the Secretary, Office of the Solicitor and the Office of the Commissioner of Indian Affairs. Elements of each of these offices extend to eight regions for the Office of the Secretary; eight regions for the Office of the Solicitor;'and twelve area offices for the Bureau of Indian Affairs.
Including the local agencies of the Bureau of Indian Affairs, there are four different levels of administration. Without counting the levels of authority within each of the primary levels, it becomes immediately clear that from the tribe to the Secretary of the Interior, there are numerous points at which communications can fail. For each level, a maze of authorities to act is delegated-from the Secretary of the Interior. This poses serious problems for tribal governments and agency superintendents when administrative or legal~problems emerge at the local level. Throughout the chain, it is not always clear who has authority to act. And as one superintendent put it:
Invariably this takes a lot of time and in the interim, frustration is building up at the tribal level, agency level and the area office level.'
I believe that a good percentage of tribal and individual Indians' frustrations could be eliminated at the agency level with adequate personnel with adequate authorities3
The frustration of tribes with, the present structure was voiced by a 'representative of the Oneida Tribe in this way:
Weary of paternalistic decision-making by federal employees, unilateral action by the J3IA without timely notice to the Oneida Trust Committee, inefficiency, mismanagement and absurdity within the Area Office in Minneapolis, we are 81 A federally funded legal aid agency;
62 For Ithe year of 1975.
a Corresponde(nce from Steven (Bud) Lozar, Superintendent of the Western Washington Agency, BIA, to Rudolph Ryser, Task Force #3, April 6, 1976.
Sifl rutrtinotbyame a the Soictrsofiet:lapAt
we'*e g n a foercin the oit of inuerou ht ss in the~~ offthe in h nterio fajdctn eoucMrbes hsi primarly baen tbflstic Is srulkbcte th recodia aousetast ein
theresurcs wre ontbeipaortnt chargweot the Aotand NAta buta lt o tem er buot t ectal wokofteciision-I ect hpe nd
versdie setin Theson where Right Divisioned
Thes rearksarereee arte osigionl o localocs spedifnaton ad jiestha Inin fairs actts Te enral frocu ofe
Weatmn of D.Ce basdffiesofheJusic
The Deaxtet o use itrucurowt Indian affudta r h eart
primarisnolyute t dealing with their intio n scina eel. rets.on
of ~ ~ ~ ~ c Idareoreisoeiprefanet cadveofte aor ofd triatral Resources noiiobuh appuaren wonic of tre s oinhnibitit
Affars s crrid ot i the Irnbian scthat. The Ciyer igth Dipaitmen andthIniaClim Chommseion ae avocaed ithth reori bilities~ ~ but ininnstis Teeade no legialc boreaucat icesefepderifo
DepoaheJstcrDpatenmevasenlwcomtmn Th tuouendo flcho Indian s rihsadpopcuet.Siary theat
ment~ ~ ofJsiei o utdegreedofinccssbity the combiatOne
tribalo mmeexrsdthstrcua which may the acheve
.~~~~ lea f theDcpatmen ofth Justice Dan reuet doaei ao ftianeest
even ~ ~ a anisacsweeteeis coapretcfin af leegal capaiiit sl
advoacy * he cre f te o ost te uwyesion the stprturest
of~~~~ ~cu Jutc pr o ecie hmevst eavoen ao eiys e tic andb for
the~~~ eeateto neir u ntead and leaifi, use urath c dosefecndo
theio Jusic thepustce nd nt.ent
strctue rveas ahig dereeo inacsiiiy T~e cobinaiont
-structural problems. To shift boxes within the organizational struzcture may ease problems and increase effectiveness, but such changes will not relieve the basic conflict of missions which arises in these agnis ,Separation of the primary functions in Indian affairs from~ the two agencies into a single independent agency seems the onlyrepnil alternative."
0 U.S. Conar, ArPRO Hearing, Structure of the Bureau of rndian Affars, Denver, Cora.
FEDRALIDA ASTAC RGASH
The sytemfor delivery of gods and services to Indians found its
Fbe nng n arl teateswith ndian tribes. Though the methods of
veryhav chagedandthe pecrum f godsand services has
oadne, te nitd tats as onined torepond to treaties and
agrement bydeveloping genera and specific government programs
Thee renowhudrds f veuestrugic g oods ts5yerice
andassistance pass beoe they ec nintie n epe h
inconistecy o treatetoy nia rbl. oenetsb eea
that ~ ~ ~ it the Untertaeei a ti tofhl t raycmimns
Thesucessr i sof of astnctoIdnsi thesek td
triba surival ndt e lfllen oftis and Amriana
ftr hefrs sx rateswco nclueen t wen the U nie State
sequent ~ ~ ~ a tetcocu dw it triearos the cotn t coie d
becametheou "is rum ents fordlvrn godeadsevcs fcdii
ov i e "for presrving peace anfriendship' with thetribe(..
o r; 4 em on strates its com m itm en t to th e ob lig ation to su p p ly H
s services to In dian s as~~iiiiiii~iiiiiii~iiiiiii~i~iiii!iii ii! i!', iiiiiiii i revii i e d th ciiiiii~ii~iii~iii~~~~~iiii ~!ii~~iiiiiiii!iirc stan ces ich! ~~~~!i ? Y!!i~ i!',, 'iA 'i ..
gav r i toiiiiiiiii~ii~iii~ v iolentii confliiiii~iiiii i ct iiiiiiiiii i n v olv !ii@iiiiiiiii i ng thei C reekiiiiiiiiiiiiiiiii an d C h erok ee~iiiiiiiiiiiiii iiiii~iiiiiii~iiiiiiiiiii i! iii i i ii ii~
reulrl suppliediby ourtraders, and colii these objects! be effect, noothe measures would, probabiiiiiiiiiii~ly, be necessary for securi ing peace and a !iiiiiiiiiiii!i] p o iabiiii~~i~~iiiil tra&ii~~iii~~ii~
Aiiiiiiiii rs Journa ofpr g Coges .29
1 i ~ ~!!ii !i ,'"'iii
i Nibiii~ "d'Pribdiiice Stat 50-62 Augst7,18
Blunti Joep.Reor f Cm itte reaive to! Indi d= n oio ofteD 'gt
ii!iiiiiii Geogia Aug. 3, ; 1M p. 113.
iiiiiiiiiiiii i~i iiiiii~ i!ii(3 7 )i
2. PAYMENT FOR LAND CESSIONS
Until the treaty with the Creek Nations was concluded on August 7, 1790 (7 Stat. L. 35), no earlier treaty had contained a provision for the payment of an annuity in consideration for certain land cessions.' Thus were established the first formal links between Indian ownership in the land and provision of goods, services and the payment of annuities in consideration for lands ceded.
It had become the standing practice of the Congress to deal only with the tribes as a whole in trade and in the provision of goods, services and annuities. This practice continued for over one hundred years prior to 1875.7 In that year, Congress passed an Act (18 Stat. L. 420) which allowed an Indian "who abandoned his tribal relations to obtain land under the Homestead Law in the same manner as white persons." 8
3. THE GENERAL ALLOTMENT ACT AND THE EMERGENCE OF SERVICES TO INDIVIDUALS
The General Allotment Act passed on February 8, 1887, represented the first drastic departure from patterns in tht U.S./Indian relations. For the first time, the United States began to take steps to deliberately intervene in the internal affairs of tribes. And for the first time, the United States sought to deal directly with individual Indians, by way of parceling out Indian collective holdings to allotments. This was a deliberate move to break up the reservations "'and destroy the Indian tribe as the institution of Indian life."
To insure that Indians would willingly participate in the allotment program, they assured them of continuing protection of their land holding for a period of twenty-five years after which, the Secretary of the Interior could issue a patent in fee when it might be determji ed the Indian allottee was competent to manage his or her own affairs."9 They were further assured of support by the government and provided education so that they might learn how to be civilized like the white man. Where Indians did not willingly accept allotted lands, they were forced to take allotments and become Indian land owners."0
All of this flowed from a conviction of Congressmen and administrative officials alike that Indians ought to be given the chance to live freely, own land, become civilized and assimilated into the white society. Those that did not or could not adopt the ways of the Amercan society, were not worth saving and certainly ought not be allowed to return to the "savage state."
The Bureau of Indian Affairs was geared up to assist the individual Indian in making the transition from tribal life to the life of individualism and "free enterprise."
6 Schmeckebier, Laurence F., The Office of Indian Affairs, 1927, p. 20. Ibid. p. 76. "Before 1875, practically all general legislation had regarded a tribe as the unit of Indian life, and there was no attempt to interfere between members of the tribeor to make any general legal provisions for Indians who might separate from the tribe. There had been some acts applying to particular tribes, generally small ones, that provided for t.he allotment of land in severalty and the admission of the Indian to citizeniship, but in general, the Indians were re arded as a portion of the population set aprt, to w&k the Vorrnmen1 owed certain obligations". [Emphasis supplied.]
Ibid. p. 78.
Act of May 8, 1906 (34 Stat. L. 182).
10 Schmeckebier, Laurence F., The Office of Indian Affairs, p. 80.
Theedcatonprgram of the Blurea was expnen seuaizedwit emW hsi upn he seof boarding schoolst e young~ Idana offthe resevtos
ealh ad mdical services, l~aw enforcement meager amout of tecnclosit
anc, lnd eclmaionaid foesty uperiso, and sporadic, welfare srie
Th General llotent ct srvedto. divest tribes of large rat
ofprmelad ndperited unscrupulous non-Indians and economc
intrets~ prchsecountless allotme~nts hog fraud and decp tio. roicaly hwever the resultat high mncidnce of death
disas ad spreading poverty aong Indians caused a sb
statil ublc utry emndngtha jstc be doe.This~ swllof
publc citiismimpessd te Eecuiveandthe legislative branches
of ovemen FnalyOongres passed ah Snyder Act on Novem-L
ber2,192 1 auhoizig ppropratos and expendtue o h
puroseofuppyig goos, sevce nd asitance to Idas Te
...Tha th Bueauof Indian Affairs, under th~e supervision of the Secretary of theIneror shlldiec, spevieand expend such moneys as CoQngress ma rom
tim totie aproritefo th4e benefit, care and assistance of the Indians thrughout he nite Sttes. [Emhasis supplied. I
Thepasageof this act might have sup plied the impetus for a major overaulof te Bureau of Indian Affairs, but no changes were made in
its~~~~~k dteoratvte.The Act merely made it easier for~ the Bureau
to ecue fndsfrm te Cngrssby prevetn "appropria~tions
ites fom e *subectto. a point of order inteHuemfRpe
senaties" 1 wfchhad been the. patice of the House approprations Commtteewhenno pror legislative authority existed for a particular
4. EDEAL SSITANCE TO INDIANS B2ROADENE~D TO OTHER AGENCIES
It ws nt util1929~ that consideration was given to th~e possibility
thatageciesothr tan the Bureau ofIndian Affairs hudbcm
invovedin he o .sio of services and assistance to Indians. This
-viw ws frsto eed y Cmmisioner Joh~n Collier as a part of the
newpoiceswhih er t emerge from the Indian Reorganizationi Actof une 194." Commission~er Collier defined one of his objectives
To aandn th trdition of Indian Office monopoly over the Indian Service, by rawng ll vailable federal and state agencies into the Indian Service.17 The prme moivaton for this policy was due to Collier's conviction tha th InianSericeshould "~shift from that of dispatch manageInen totha ofcooperative advice and technical assistance." 18 While raay aeniesofthe federal and state government had begun modest
effrtsto erv th soialandhealth needs of~ Indians after the pubAcaionoftheMei Report in 1928, 11 there rmied cnierable
relutane amng geny officials to provide services. This~ state of
afais aslagel de o ncrtainy about the extent of ret-r 11 Feemn Jhn L. The Indian New Deal, p. 43.
RcrsService. Fort Wort, Texas. IndianSevcPoiesGaly1 19Lewis Meimand others, The Problem of Indian Administration (Baltimore: The Johns Hopkins
sponsibilities and the tendency of the Bureau to guard its turf an assert its control over Ind aff airs.
The Bureau, it was thought, was guilty of providing insufficiei and substandard services. The remedy Collier sought was a movemei "toward the sharing of responsibilities with other agencies" 0 cooperative inter-governmental effort to solve the economic, sod and health problems so starkly revealed in the Meriam Report. I
an example of how this system of cooperation could work, Colii asserted:
Within the federal system, the outstanding unifications have been thosebetwei the Indian Service and the CCC (Indian Emergency Conservation Work), ax the Indian Service and the Department of Agriculture (Soil Conservation 8evicc Continued or extended cooperation with the United States Public Health Servi and with the Bureau of Animal Industry has gone forward. An entirely nc collaboration with the Bureau of American Ethnology (Smithsonian Institut has been achieved. Important help to Indians has been given by the Feder Emergency Relief Administration, the Agricultural Adjustment Administratio and the Land Program through the Resettlement Administration.
Not merely have these many cooperative and sharing arrangements lncreas the services given to Indians, they have, in addition, reacted in a estimating ar challenging fashion upon the Indian Office. Not a sequestration of Indians with the one federal bureau, but the largest use of all the agencies' helpfulness is ti guiding principle in present Indian affairs.21
The motivation for state cooperation was as a result of Congres passage of the Johnson-O'Malley Act 2 which provided that tl Secretary of the Interior could contract with state and local agencio for the purpose of providing pre-college education to Indian youngster States in general were not willing to use state revenues to supp. services and assistance to Indians due to the non-taxability of Indi lands-the principle source of social and educational revenues gene ated by states.
Through the 1950's and 60's, the pace increased to place India support programs into other federal agencies. Indian Health wmoved out of the Bureau of Indian Affairs in the middle 1950's, to t] Public Health Service to facilitate more "expert" provision of service The overriding policy was to "get the government out of the Indif business"-a policy which was to be achieved by moving the r sponsibilities for Indian services into other agencies, state government and out of the Bureau of Indian Affairs. This policy was accelerate in the 1960's with the policy of assimilation of Indian populations the goal.
Indian tribes began to see the advantages of multiple agency feder assistance programs as the flow of direct funding and assistance begf to boost tribal economies in ways the Bureau of Indian Affairs nev could. The Great Society Programs of the Johnson admini tratic became the first major breakthrough for tribal governments
... although Indian tribes were not specifically mentioned in the delivery syste provided in the Economic Opportunity Act of 1964, a crucial policy decision w made by OEO to make Community Action Program grants to Indian triix frustrating an attempt by the BIA to serve as an Administrative conduit f these funds.2
1 Records of the Development of Colrer's IRA Policies, Fort Worth, Texas, Oally 5.
348 Stat. 596; April 16, 1934.
.Stud of Statutory Barriers to Tribal Participation in Federal Domestic Amsstance Progpas6 U versity of New Mexico, American Indian Law Center, 1976.
3Ibid, p. 1.
#Te nfsinof OO fuds into tribal cmunitie bro t about.
o al governments to serve their pee b deVew ~ ~ dsoi programs that th~ey administered,
At~~ thqloeo the decade of the 1960's and the bgnigof the
190',:th Nxo amiisrtion bgneffort to estalish dometicswitace roram b exanin the Bureau ofBude into theOfficg ing authority to the regions and establish an in
For ndias, tesedminstrai chnes were couched as methodsS do t inconsistencies in the
tretmntoftrialgoermets, poor communctions adarbitrary
progam equremntscombined to create distrust of the new system.. Thepolcyof self -detemiation began to be seen as yet a new fom
B.i0 PRACTICES AND PROCESS
Ttf progr outside of the Bureau of Idian
Ae t to actbaivity and the
40l ofsocal srvies.Tribes1 became recipients of federal~ fund.Wro; te Oficeof EonoicQpportuity, a program tha wasPrgi e tominmiz bueaurac an maimie actual servio 4qhlai* Idia. tibe, bthlarge and small, responded to the new sens.
Qf redomtht cmewith the power to expend funds according to, plas dvelped within the Indian community.
Nndep m he developed major programs concened iIndias and two have some activities asoitdwith
cIn a 1974 study conducted by the Nanal Council
'prgras srveedin all departments, only 78 domestic assistance proram wee bingused by a sample of twenty-nine tribes.m1 hee
gram, a a racical matter, were not~ then and axe not now soey Indan ervces Cabinet depaxtments often have numerous proZr~~~i ~ avial oalprsons, Inii4an and non-Indian, but they are .W-c sedtoIndan eause of restrictive eligibility criteria," or
fn rh l hr "state and local governments"
as matter of practice, include Indians in their popu:~~~~ 'I diint he eleven cabinet-level departments, there are at
setag with functions that touch on Indian
rios nd/r enfit, ndfive teprx commnissions whose studies a I rcomendtions w1i affectnda interests. Of the twentyr agenies deaxtments and commissions studied, the Goernen U bd .2.
" ffceofthe Vie Piesldant, National coni on Indian 0 ormat, A 84pf ofFdra ni Domee~a As~danePgam, February 1974.
21Iip. 2. "#There are 46 specific Inhtance$ ofstttr ramntttv cuin o rcmrit
Accounting Office (GAO) concluded in its Auguist 28, 1975, report that:
... obligations which benefited American Indians during this period increased from about $0.71 billion to about $1.5 billion. The Departments of the Interior, Health, Education, and Welfare provided over 66 percent of these funds for fica year 19G9 through 1974.30
The GAO finding seems remarkable when considered on its own.' However, it becomes clear that a vast amount of the reported total for Indian programs must be supporting a sizable bureaucracy since only 7-8 programs were reported to being used by Indian tribes in the NOLO survey.
Trle explos-ion of federal domestic assistance programs tended to be a "boomlet," since most federal agencies lacked a summary data basis regarding' Indian needs, generally lacked awareness and knowledge of the unique relationship between Indians and the United States, .and they developed complex rules and regulations which demanded highly skilled "grantsmen" at the tribal level."1
In many agroeies there is a lack of clarity in the definition of programns being offered. This often leads to overlap and duplication of programs of different agencies. Yet despite this overlap, it is also true that manyv of the programs offering grants or contracts are so limited that no one program offers the full support needed by the applicants.
The once hopeful atmosphere in which federal Indian assistance programs emerged has been clouded in recent years. Tribal governments which found greater freedoms through a combination of programs from both the Bureau of Indian Affairs and other federal
-agencies are beginning to reject federal assistance and emphasize Bureau contracting. As Robert Trepp suggested in testimony before the AIPRC: 3
...all programs directed toward American Indians operate within one of the several departments at the cabinet level. * *
This creates so much organizational confusion that it is becoming impossible for the tribes to operate within the executive framework. It is not that the tribes, individually and collectively, lack the intelligence, capability and technical expertise necessary to deal with these cabinet departments. To the contrary, it is these cabinet departments, individually and collectively, which lack the capability and technical expertise to deal with the tribes and with each other.33
In the Great Lakes region of the United States, twenty-eight tribes in the States of Minnesota, Wisconsin, Michigan and Iowa have experienced very little contact with both the Bureau of Indian Affairs and other federal agencies. As a consequence, these tribes depend mainly on assistance from state governments, services of county governments and nothing else. When funds are received from federal agencies, they are frequently passed through state agencies before tribes receive funding support. This poses several difficulties as Fred Dakota, Chairman of the Keweenaw Bay Indian Community, described in testimony before a Joint Task Force Hearing:"
1 Information on Federal Prorfram Which Bew-fit Amprican Indians, Report of the Comptroller General of the United Stntes, B3-11!8iO8 (Requested by Sen. Paul J. Fannin). 20 Jbid, Letter of transmittal, p. 2.
31 1lbid. p. 3.
32 ATPRC Hearing. Maqy 8-9. 1976, Denver, Colorado, Vol. MI. 23Ibid, Prepared testimony of the Creek Nation, p. 2. 11 AIPRC Joinit Task Force Hearing, Ma1rch 19-20, 1976, Vol. IT.
*we were advised to go through LEAA for funding. LEAA went along
A, ut heyve ot thir wn ule an reulaion also and we were
Infomedtha . e rquetedfuningandit oesthrough you~r channels
Wasinton rginalofic, ad n hisintace, Mihigan."3
Ove sxhndeddomestic assstnceprorm may be useful to
Indiane tries btmsofheealing legisation does not note
Indantriesas liibl recipe see Appedi C.) Because of
incnsstntinlusonofInia trbe i gnealprga legislationi, adm'nitrav leisltve; rgltions for the conduct~ of a1 program rev .l'siilr mscosiseniswhih pac a ubsantalburden on
trial ovenmets. Without uniformity in thevaiuprgm
deivrysytem, riesare forced to dal with complex systm which
do no permt flexibility at the local level.
Th nin epea a whole have very little knowledge or urnderstanding o
thelegslaio. Pogrmswith stringent requiremet that are not undersad
abl fo it imlemnttion results only in abuse, waste adinefficiency.$
,Frstaton tat reut from these "stringent" regulations have
creaed agenral nwilingess to use federal a~gencyasitne
2. SERVICE DELIVERY MECHANISMS
Federal ssitance to tribes relies on several specific methods of ,,dlivry:InianDessfederal reinal councils a~nd state~ govenment Eah sytemposes problm for tribes because of the nature of trial ovenmet, treaties and agreements. The key issue which gives
riseto robemsis that of eliibihity. Ehigi41jty relates to twoatr
natve ystmsof delivery, "either the reli~onship isbewnth
trie r ribl rgniation, and the feeral gvrmnt, orth statute
reqire soe orm of state participation inith eie very of srie.
Whee srvces are delivered to "units of local gvrmnt" in accordanc wih sat law, Indian tribes are excluded from consideration.
Suchprogam services that are delivered may have an impact on Indansascitizens of a state but tribal governments are excluded.
Evenas rogams are directed specifically at Indian tribes (EDA, HUD, EAA)the state may exercise the right to review tribal plans. Thsoccr despite the fact that there is no policy reason to require staestohave an involvement in Indian programs. Though the Office of Mnageent and Budget has made it clear that states need not coodinte tribal programs, many tribes continue to have their progras viewed by state authorities."9 Thttribes are not eligible for federal programs unless they permit stae evew or have a specific place in the legislation causes an irrgulr initiation of programs and a major block to the use of
Stdy f SttutRV arriers to Tribal Participation in Federal DOMe~fic MAstance Progrm,, 1976, p. 13.
37 hie Ovrto Jmes ChckaawTribe, AIPRO Jroint Task Force Hearings, Muskogee, Oklahoma,
38 t! y f Satuop Barriers to Tribal Paticipation in Federal Domestic Assistance Prog-rams, pp. 24-25.
39 .S.Cogreq earngof the Americ~an Indian Policy Review Commission, Task Formes and 4,
Indian Desks are regarded by tribes as important instrument f gaining federal assistance,0 but they lack sufficient authority to respond to tribal needs. Similarly, they are seen as having insufficient funds to adequately respond to tribal needs.
Federal Regional Councils are generally regarded as inefficient instruments to coordinate service programs for tribes. Many tribes sense that Regional Councils lack su cient authority and e
to deal with tribal governments." The problem of Regional Coils is characterized in this way by an official of the national gov
. we are hindered in the regional council by the split of programnath among the federal agencies. As you all well know, some Indian programs are out of Washington. Some strictly out of Chicago. And there's a mixed between. It's difficult to get the right people at the regional level to be a handle all these kinds of problems.12
As a reaction to problems such as this, the NCAI urged in 1972 t
federal agencies work through the Bureau of Indian Affairs.I have urged with increasing frequency that federal goods, services assistance be channeled directl to tribes and reservations."
Indians have been determined to be eligible or potentially
for numerous programs (See Appendix C). The recommendatns. of the American Indian Law Institute make a strong argument for making substantial changes in present program legislation. As they put it:
In view of the pledge of Congress and the administration to support I tribal government . the time is right for all of these programs to be available to Indian tribes.46
*NCAI Historical Priorities snadO~licies, (paper prrared by AIPRC), Resolutions 27(1967), 50 (199), 58 (1970), 12 (1974).
1AIPAC Hearing, TF's 13, 4 Yakima Washington.
3 Madonna Mc Grath, Secretary's Special'Asst., Region 5, Indian Committee, AIPRO Joint TF Hearings,Superior, Wisc. Vol. II, pp 142-143.
*Historical Priorities and Policies AIPRO paper NCAI Resolution W. "Ibid NCAI Resolutions 19 (1969), 5 9 (1975), 461 (1975).
4 Stu4Y of Statutory Barriers to Tribal Part cdpaton in Federal Domestic Assiance Programs, 197. "Ibid, pp. 34, 35,36.
A. zvi-w F POLICY
wikinth ntinalgoermet xtedsovr -eriod of two hunre Th6 ortern Midle nd outhrn.Tweve omxmisioners were
peae nd rindhip' n he rtcls o Cnfdertinthe Cogess
By o ceatng he epatmets f Idia Afair, t was not intended affairs~ ~ ~~~~~~~i ofteIda ain.jI 85 oehBut reviewed the
had.the oleauthrityto egulte tadea e manae alle affirs t
the Indan aned coclde as afoelowh:
grssshul hvean gsistvfor oertenias but tat t l of Idia naton atrs o ver ofehnrdyer fe the
Artices o Confder(45).
In 1786, Congress adopted an ordinance reorganizing the Department of Indian Affairs into two departments-the Southern and the Northern. Each department was declared to have a superintendent whose duty it was to report to the Secretary of War. The superintendents were authorized to issue licenses to trade and live among Indians. This administrative system continued in force beyond the adoption of the U.S. Constitution with one modification: the Congress, on August 7, 1978, established the War Department I headed by a Secretary whose duties would include matters "relative to Inlian affairs". 10 The first formal expression of the duties of superintendents was laid down by Congress in the Trade and Intercourse Act of July 22, 1790. On July 9, 1832, Congress passed an Act to provide for the appointment of a Commissioner of Indian Affairs who "under the direction of the Secretary of War . have the direction and management of all Indian affairs and of all matters arising out of Indian relations. ."11
As the major responsibility for regulating trade and managing all matters related to Indian affairs was increasingly delegated to the Department of Indian Affairs and the Secretary of the War Department, the Congress began to fall silent. It began to react to requests made by those administering Indian affairs, rather than giving direction to them. Control over the administrative instruments it had created had begun the slow decline. The War Department's policies of Indian removal, confinement and destruction had come into violent conflict with the policies of the civilian Department of Indian Affairs which were still aimed at peaceful trade and intercourse with the Indian nations. Employment of Army officers as superinten dents was a means of extending War Department policies into the Indian Service, which considered the policy a direct opportunity to regulate and control the lives of Indian nations and their people. Superintendents who were the providers of protection and federal government subsidies and goods to tribes-these being agreed to in treaties-became the coercive arm of the War Department. By withholding protection or withholding goods, Indians were forced to accept the dictates of the Wax Department. Large tracts of land were "ceded" to the United States by Indians who had been starved into submission.
The successful removal of Indians to the west of the Mississippi River marked the end of a bloody and violent stage of Indian administration which had begun with the placement of Indian affairs in the War Department and the presidency of Andrew Jackson. "The avaricious disposition in some of our people to acquire large tracts of (Indian) land, and often by unfair means . ," 12 which Congress had failed to prevent, had been actively endorsed by President Jackson and the War Department-an agency thought to be the instrument which would enforce Congress' laws to protect Indians from nonIndian encroachments.
I First Congress, Sess. I. Ch. VII (U Stat. L. 49).
10 Ibid. Section 1.
11 Twenty-Second Congress, Sess. 1, Ch. 174 See. T.
13 Blunt, Joseph, p. 113. From the Report of a Committee relative to Indian affairs August 3, 1787
Secion476of 5 US.C.: "Th Secretary of the Interior shall advisq
SU6 ribeor ts tiba con i fUllap~priaistmae or edera proecs orhebeeft ofte tribe priorto thesubmison ofsuch estmats ote ureuof BudgtadheCnrs.
Vttb~topre arethefedral ndin bd et bu Iniantribes indicate&irdisaisacton wththis sysem for varou reaos
() De t cnstains et ownbythe Offic~eof1Managemen~t and
Blet tries ave onsitenleen denied thte total poted exture~~~ wihnseii aeres. Even though the trib~es call fo reass mavaiabl fiancil -esorces, particularly ii Xiht of the curentinfatin in this country, their repetitive requests lave gone
we sualyplaed y he ffce of Mngement and Budget on the amount of dol~r tht trbeorthe Bueu can ask for)13
(b)Trbe ax ld hrugh te"consultation" procedure and prioritithe Bueauof MB efoeLhe request reached the Appropritin
Treeyers go wereqesed 35,000 for road imnproveents for FY 77
upo reeit o 177 andAnlyss.We found that somewhere between the PortlandAre Offce nd Wshigton D.., tey hose to (without any discussion wit th MaahTribe or the Western Wsigton Agency Office) cut that budget
$60;000.00 aanipsgahrdhip tocomlt or wor with logrange plans,
Fro a iffret prspctiean Alaskan community states:
.TheBueauof ndan ffarsseems t~o have aotdthe position~ tha an
ubtthecas. t i no te cse ecusetheBad Aalyisreqie an identification
of valaletotl esuresas wel san idenifcaio of futr national social and ecoomc dciion t adqutely prepare an mplemenit a budget based on
Whatwe an pedit is that the sbttution of Area Ofiepriorities for local needs~~~ wilrsl ndfciniswihcnoly be reduced truhlocal p1luig.
We fnd t dscoragng o deal with individuals who are unaware of total
Burau undngandtotl ureu pogams in attemptn to develop effective
(e)Du t sortal o atual allocatios in one program ara, tribes
(e) Administrative costs and overhead are siphoned off out of the total allocation, thus resulting in a considerable shortfall of actual service money reaching the tribe.
I think that, you know, probably there should be less money spent on administration and more money going to tribes to do the things that they see fit with, not a whole bunch of strings attached on how to spend the money."6
(f) For tribes, under a multi-tribal agency, the Band system poses several problems compounding their expressed dissatisfaction: (1) Not all the tribes, even though in close proximity, have the same priority rating; (2) All the tribes have to agree on the prioritizationz of programs. In the case that they don't agree, the BIA Area Director sets the priorities; (3) Once the allocations are made, tribal favoritism and competition result in an inequitable distribution of funds.
The BIA budget procedure has failed miserably and as one intertribal group states:
It has been said that Indians are like the canary in the coal mine. Just as the ,canary is carried into the mine to test the air, so Indians are subjected to expedient and changing policies which reflect or presage national policy. When the canary dies, it is time to abandon the mine. Similarly, when a policy such as the Band Analysis is tested on Indians and fails, it is time to shift gears in policy formulation.17
Steady progress toward self-determination has been made over the years which allows tribes to contract BIA services. As more tribes increase their capabilities in assuming BIA functions, they express the need for changes within the present procedures.
A Tlingit-Haida representative s~immed up their concerns in this fashion:
One of the areas that we do have concern is our contracting with the Bureau
-of Indian Affairs, we felt we were contracting for the management of the Southeast Alaska Agency, and we found the Bureau putting us in a position where they are managing the services provided through the Bureau through a contract because they are inflexible in letting go of the management tools that they have provided in BIA Manuals. In every contract that we have developed with the Bureau of Indian Affairs they incorporate the manuals that the Bureau uses for management
-and expect us to follow through, utilizing the same Bureau manuals. We feel that management is a risk. We would like to take the Bureau manuals and put them where they belong and manage our programs, taking the risk and utilizing the published rules and regulations."8
The innovative atmosphere which is becoming more prevalent in Indian communities cannot be fully realized or utilized unless BIA is willn to enhance rather than smother it with endless involved rules an regulations.
For tribes who have a limited revenue, the reimbursable nature of their contracts imposes hardships which three individual tribes
-documented through testimony at AIPRO hearings.
(1) Borrowing money to start the contract program:
.. the reimbursement system of contracting hurts those tribes which have limited resources because they are forced to borrow money at high interest rates in order to begin implementation of their contract program. The contract funds, of course, do not cover these interest payments and further, they do not cover inflationary cost increases in supplies and materials.1' 18 Fred Dakota, Keweenaw Day, AIPRC Joint Tak 'Force Hearing, Superior, Wisconsin, Vol. IT, pa W -37.
"Northwest Affiliated Tribes, ATPRO Hearing, Denver, Colo.. May,",9 1978, Vol. T, p. 89.
"Elias IReyes., Tlingit-Raida, ATPRO Hearing, Denver, Colorado, May 8, 1976, Vol. 11, p. 144.
"Bernice white, Mluckleshoot, AIPRO Heaing, Denver, Colorado, May 8-, 1976, Vol IV, p. 578.
the~e epingenough. money in the bank to carry the contract until r mbusenant arrives:
Mwe reeive are reimbursable contr which klls small
triesbeaus w hveto keep enough money in our chekig accon for three
( u loan meet payroll schedus
Butwhn rimursmet is hed upand i'ssomeie as longasthirty days,
somties t' n faltofthe contractor. We have to go. to th ak...to
secrea oa s tatwedo'thave to put these young men outofor traning
y g P.L 93-638, Congress demonstrated its willingness to,
tk of more of their affairs. Although the tribes
Sy, the realized the importance of studying
~thec~,parculrl when the BlA was respnsibe fr deelopng he regulations for ue Act.~
I Alhouh PL93-38 gvesopportunity for tribes to contract services, the law
sBuu of Indian Affairs to retain the larger portion of adminisBIA's ols a tchnca asisant in contract negotiations and as
ootrctenorerhae hwn BIAto beems in its duties. The
A cited ins where Bu F per" tim contr below the market value,
but lsodidnotmontorthe ontactr'slogingpractices. Both
rsie revenu eloss to the Tribe. For
tribs wo dpendon imbr revenues to "pay their bills,"' such misS T LINE OF AUTHORITY
Station o f authority within BIA structure has not Only a bureaucratic system which is not designed to meet the
4V,-t-da eedsa emrency crisis among Indian nations, but has,
0m area office administrators insead of
st. a criticisms arising out of Indian country can
boa besumedupas itwas in title of one of the chaptr -f Our
BI in Whie America, written in 969:
"TeUIA-a Terminal Case of Bureaucracy" 2-Indian people
liae tredof he admnisratvedelays, indecisiveness, foot-~drag andovr oner wthtehncaites inthe Bureau of India Ate Aea ffce taf hs bendelegated too much authority by the
Cetrl ffcead ascalysrvs so "te eck" esnd and
res. neAra Director described as a "super-amnsrtor"
sueitedn wihnBI.Tevita owe tovt ninpo
main threat to Indian self-realization. Tribal leaders across the coumtry have been calling for more local agency authority, a strengthening of agency superintendency, and direct line authority between the Central Office and local agency, which would eliminate the need for Area Office.
There has come a moment in Indian history when excuses, abuses an( incompetency will not be tolerated nor perpetuated within a bureaucracy responsible for the future welfare of Indian people. A history clearly indicative of the failure of BIA to promote and encourage tribal continuity is a blatant expose of facts, not hearsay.
4. MANAGEMENT OF RESOURCES
From the past, through the present, to the future, the Indians believe in larmony with nature and in life, in the sacredness of all things-people, animals, plants, earth, stones, and water--in their properties. A person guards an inheritance of natural resources and passes it on to the next generation, undiminished and uncorrupted.26
The paramount concern of Indian people with the preservation of their natural resources has brought to national attention the clearly established pattern of mismanagement within BIA. Not only have BIA personnel overseen large "land grabs" by non-Indian private and public interests, they have secondarily overseen large losses of the water, minerals, tiil-ber and human resources closely associated with the land.
Additionally, at a time when tribes are striving to develop economically, they are shortchanged by BIA technical advisors. Tribal leaders have repeatedly brought to the attention of the President, Secretary of the Interior, BIA Commissioner of Indian Affairs, Congress, and the general public, numerous instances of mismanagement. These are cited here.
. the Oneidas have suffered much and have been divested of their lands and rights by a trustee who has all but sponsored unsupervised losses of lands which were guaranteed by treaty which "pledged that the Oneida lands shall be secured forever".* *
A valuable property was recently lost near the Green Bay Municipal Airport. Allotted land from our tribe was adjacent to tribally held land and was condemned for "public use" on October 3, 1973.27
This statement is a common reflection of the attitude of many tribal leaders who have seen their land base diminished.
The Creek Nation cited the following figures to demonstrate numerically the diminishment of their land base:
1840-Creek Nation composed some 6 million acres;
1906--Prior to allotment, we had 3 million acres;
1976--150,000 acres under trust responsibility. 28
Another means utilized by BIA to guarantee the further shrinkage of tribal trust land is illustrated here:
Soon after World War II, why, many of the people sold land but it wasn't because they wanted to sell, but they were more or less forced to sell. They forced patents on them classifying certain ones as competent Indians and then they were given their patents and in a short period of time, why they lost their lands through heavy indebtedness.29
11 Alvin Josephy, Jr., The Murtsr of the outhwest, Tlly, 1971, Audubon Magazine, Reprinted on p. 831, Part 3, Subcommittee on Administrative Praotices and Procedures Hepring. Pureell Powless, Oneida Tribe. ATPRC Hearing, Denver, Colo., May ", 1976, Vol. IT, p. 180-182. "Ed Mouiss, Creok Nation. AIPRC Joint Task Foice HIering, Muskogee, Oklahoma, Vol. IT, p. 67. "Bill Minlhore. Board of Trustees, Confederated Tribes of Umatilla Indian Reservation, AIPRC Joint Task Force Hearing, Yakima, Wash. Feb. 3-4, 1976, Vol. III, p. 482.
With th pasge of the 1887 General Allotment Act, problems of
heirhipfractionation emerged. This then has served as another
indrec mans for non~-Indianis to get their hands on Indian lands.
Anoherimpdimient to progress is the heirship problem which has caused such
1raciontio ofallotments that on many reservations, the land sits there unImproed ad in many cases, the land is sold out of Indian ownership which in
tunceates the checkerboard jurisdictional problemA1
At tie when tribes are moving toward economic self-realization and dvlpetof their natural resources, reacquisition of their land
eeomenatoppirt item. Provisions were setdon inthe
194 ndanReraiainAt1whc weenvrflynstud
by th BIAand as a result, there is little or no funding available to triestoaccomplish this goal. They then are forced to go outside the
BIA o fnd hat little funding they can to buy land. Z
The oneywe do have, we're pouring into land acquisition and it leaves us 'notingfortrial anagement. In fact, the trib~al management is running all
The rowTribe in Montana also feels the need to have more money
madeavaiablefor land reacquisition:
th rw Tribe's land base which is depleting fast. This is nothing but
anoter shemeof big "~grab" for Crow Indian lands with its rich coal and other -minraldepsit bynon-Indians. At the present time, there are over one hundred
appictinsfor p ttin fee land sales on fieinBillings Area Office or Bureau of
I hpe ndpray the higher federal officials back in Washington, D.C. who make
finl dcisonson these Indian land sales will give an extension of reasonable timeand rovie f or the Crow Tribe to exercise their preferential rights to purchase
-thseIndanlands that are up for sale. * *
In te Rade's Digest of January 1955 issue, it stated to the fact that only 21
pierce ofthe row Indian lands are being utilized by the Crow Indians them,seves Th oter79 percent is controlled by the ever competitive white farm and livstok oeraorswho have all the monetary breaks from all the local banks and
&eerl loaning agencies at their convenience and having all the best chances of
buyng rlasig< of Crow Indian lands, thereby making a good living for themselesan tei families. Nothing has ever changed much since 1955 in the business ,Of inacinfo Crow Indians to buy lands or to go into farming and livestock
Taiingentrprsesuccessfully. * *
The~~ CrwTrb r individual members must be given an opportunity to pur,chae te lndswhen the individual allottees sell them. In order to preserve the ,dwndingInian hldings, the federal government must adopt an augmented
loanproramto the tribes for this purpose.33
Iorde to develop comprehensive land use plans, the importance of
clerlydelineated boundaries arise, especially where, in many cases -suvey hve not been done since the establishment of the reservation.
Our eseration has not been surveyed since the original survey by which the 'boundaries of the Reservation were established. We are aware that additions after
,the etbih nt of the reservation were made and latter removed fromr our
30 lme Saill, QechnAIPRO Hearing, Denver, Colorsdo, May 8-9,1976, Voel. 1, p. 24.
91 ct f une18,194,7rdCong., S. 345, Soo. 5, "The Sertary of the Interior ishereby authorized in his
-iceinto acuire through purchase, reli nishment, gift, exchange, or asgmnayitrs nlns
watr ighs o ands within or without exingrsrainncungtstoohewersrcedlo-nnswhether the alUottee be living or deceased, for the purpose of providing land for Indians. ** or
'th aquiiton f uch lands, intrssi lands, water rights, anurfc ihs n o epne niett
-suh aquiitinthere is hereby authorized to be appropiated, a sum not to exceed $2,000,000 in any one 32 WiliamWldcat, Lac dui Flambeu AIPRO Joint'lTask Force haig, Superior, Wise. Vol. II, p. 69.
n Ry BarDont alk Sr, rowTrbet. Ltetrnmtted o Ernest Stevens, Director, A4IPRC. Marc
34 Brnic Whie, M chot, AIPRC Hearing, Deaver, Colo., May 19i76, Vol. IV, p. 572.
Additional support for this stance was offered by the Affiliated Tribes of Northwest Indians:
There are a lot of tribes .. have not had their boundary surveyed and identified within the last twenty or thirty or forty years. There is a discrepancy among the Department of Interior on the boundaries compared to what the State feels it is, compared to what the Indian feels it is, and compared to what the Bureau of Indian Affairs f eels it is.'5
With this confusion over where the exact boundaries lie, Indian landIs are subject to encroachment by non-Indians:
In some instances, because of the deterioration of corner markers, non-Indian farmers have encroached year after year upon Indian owned lands so that now there are instances of 30 to 40 foot encroachments oni Indian owned lands.36
The interrelationship between the utilization of minerals from reservation land, water rights, and non-Indian benefits from this exploitationo" were voiced to Senator Edward Kennedy in 1972:
In the simplest terms what is happening in the Four Corners Indian Country can be stated as follows: Navajo lands are being stripped for Navajo coal. Navajo, coal is being used to generate electricity at a series of huge power plants located on or nearby the Navajo Nation. Vast amounts of Navajo water are being used to cool the generators and transport the coal. The famous Navajo sky is being clouded by pollution from the smoke stacks. Much of the electricity produced is scheduled to be used to pump millions of acre feet of water into central Arizona. ** Thousands of acres of Navajo Nation lands are being, and are slated to be, strippetd for the coal. These leases were all. signed years ago with the aid and comfort of the Bureau of Indian Affairs. 37
Similar situations exist in Indian country all in the name of "progress", "economic development", and more recently, "securing the
nation's future due to the energy zerisis". Indian tribes are now more than ever the target of non-Indian interest groups who exert powerful political pressures on the Department of Interior, Commissioner of Indian Affairs, and Congress.
An additional startling fact is the land reclamation problem-the end result of the mining of minerals. A reclamation policy does exist in the federal government but has not been properly implemented:
...I ask this Subcommittee to question not the principles of reclamation p olicy of this country, which policy was established by the Act of Congress of June 7, 1902 (32 Stat. 388), but to question the manner in which the policy has been implemented by the Secretary of Interior in regard to the trust obligations which the Congress has assumed in regard to the American Indian and was delegated to the Secretary.'8
To compound this failure on the part of the national government, those large mining companies who strip the land have failed to live up to their promises of reclamation:
I'm here today to present some information on reclamation. The reason is because many people believe that strip mining is destroying the land, at the same time they believe that this strip mining will be corrected, that the land will be restored, that the land will be put back so that the people once again can use it.
31Cal Peters, Affiliated Tribes of Northwest Indians, AIPRO Hearing, Denver, Colo., May "-, Vol. 1, p. 48.
10 Hilary Skanen, Coeur d'Alene Tribe, Prepared testimony for AIP BC Hearing, Denver, Colo., May 84, 1978, p. 2.
"7Peterson Zah, Deputy Director, Dinebeina Nahiln B~e Agaditaho, Inc. (DNA, Inc.), before the Suhcommittee o Administrative Practices and Proeoedurei, Part 3, p. 735. 11Oeorge Crossland, Native American Legal Defense Fund, before Subcommittee on Administrative Practices & Procedures Committee on the Judiciary, U.S. Senate, Federal Protection of Indian Resources, Part 1, Oct. 19-20,1971, Washington, D.C., p. 145.
Theinfrmtion that I have today shows that this is not the cs.The informa. .... ionshwstht Peabody Coal is not actually capable of reclaiming the land, and that th yae no intention of fully reclaiming our land."1
This ituaion then leaves the tribe to initiate and finance their own
recamaionof land at considerable financial expenses to them:
In makng reeeto land on our reservation.. this land has been mined
outandtheonly way that land is going to be reclaimed is by us as Indian people
andat ur xpnse as well as monies that we can receive from federal agencies. **
Alltha islef threis tumbleweeds.40
Tries renot only forced to sell their minerals at prices far below
the curr n mrket value, but additionally have to "foot the bill"
forresori ad making use of their exploited land. It is no wonder
tha tibs recrying "mismanagement."
Cloel, tedto the development of natural resources on the reserva
tios i th development of the human resource element. The Creek
Nain* aewr simply:
Thetrut rlatonhip requires that the federal governments potect our lands
andwih~te omigqf self-dtrmntion, the Creek Nation will ventually need
to ettr kowho to protect, develop and expand our lands. In order to do so,
we usthav deelomen ofhuman resources who can technically handle all
Th tus rionshp is viewed as a two-pronged responsibility i A~i -he esurce area: natural and human. The two are not mautu ally
excusiebu require that the BIIA consider the importance of each
andbegn t deote more tine and money to the "people :"
Ifeel that the Bureau 'programs and services should be directed toward
peop ad nt toad the lan. Certainly there are some. responsibilities that the Bureau ha owrdtrust land;, but most of their funds, I feel, should'be directed
As ipa t te "forced assimiltion" and "terminationt" policies o
th eeral government, the BIA was instrumental in moving people offth reeration into training programs which did little to adequately s 19 ~h no-India job market. Relocation has meant manydiferent things to Inda peopleand has been cited as the reason~
forhih ats f ueploymaent, alcoholism, suicides, and drop-out rate amog Inianyouth. An additional criticism of relocation is that
the tainin doe not guarantee the Indian trainee a job once he has gradate. Te tribal solution is to keep their people on the reservatio, tai them~ to take over jobs which contribute to the development of hetrialnatu~ral resources and maintain the population base of the
reeraton Tisfact is demonstrated. by the follwn st4aement: E They (feeral government) should provide traininontarervin don' shi 'emout some 'place else. Let the' tribe~ do it. ri e ih hrn
youre gonna have a heck of a lot better program.13
Trblsurveys have alodemonstrated the viability ofti onreevton racing:
Our rservtion is capable of developetta ilalworpol omiti
thmsles on ou reevtin fthe on~e-third of our mebr 'who live off our
traivePrctiesand Procedures, Part 3. 753 Window RokB rzSn ,92
44 Ksle Edm, Soshoe-Bnnoc, 1R 4Hearing, Deniver, Colo., May 8-9,1976k, Vol. I p. 162.
41 E MossCreek Nation, Al? BC Joint Task Force Hearing, Muiskoagee, Oklahoma, Vol. Ip 1
he Orverton James, Chickasaw Tribe, AIPRO Joint Task Force Hearing, Muskogee, kaoa
A Fred Dakota, Keweeuaw Bay, AIPRC Joint Task Force Hearing, Superior, Wisconsin, Vol. 11, p. 38.
reservation, our surveys show that over 75 percent would like to c if they economically could.44
The provision of educational services for Indian people onef
the basic rights set down in treaties between Indians and government beginning with the December 2, 1784 Treaty negotiated with the Oneida, Tuscarora and Stockbridge Indians.41
The growing enrollment of Indian students in higher edional institutions shows a dramatic shift away from vocational t g
toward professional training. A major criticism of the BIA isrelt in a numerical break-out by the American Indian Scholar h ps, In who reported to AIPRC that in 1975, there were 25,000 I an
students requesting $107,300,000 in financial assistance, but B]'s request only showed the need for $25,784,000 to fund 14,000 students. Additionally, the Coalition of Indian Controlled School Boa c.,
reported the following:
Now, for fiscal year 1977, the Bureau of Indian Affairs has re d
$27,956,000 in Johnson-O'Malley funds. This is $3 million less than fr, fal year 1976. Yet the BIA, by their own admission, states that there are 20,0 students eligible to receive JOM funds in fiscal year 1977. With $3 million funds, may we ask how the BIA intends to accommodate these 20,000 students 4
Coupled with this cutback by BIA, the Office of Management Budget slashes the Indian Education budget without knowing fully the real need for the increasing educational needs:
OMB, out of its ignorance of actual Indian needs, must accept respo for inadequate funding of Indian programs. It wields and exercises its a too liberally when it comes to slashing BIA-recommended Indian budgets."
The Indian people are moving steadily toward local tribal ctioA of the education of Indian children. They recognize the import parental involvement in Indian education and of providing an atmosphere which will bring the Indian student on a par with non- an
. I believe that if we get a child and build the child's identity, after the child has accepted himself for what he is, then he can go from here to and go to school, he can compete with the rest.49
The BIA isn't the sole source of financial responsibility for In education. As an entitlement established through treaty rigt,
several federal agencies have a hand in providing educainal
assistance to tribes:
Because of treaties with the Creek Nation and the trust relaionship bete the Creek Nation and the federal government, the government does havet responsibility of educating or providing funds for the education of Creek people only through the Bureau of Indian Affairs, HEW and the Office of Indian Education, but they also have a financial responsibility to provide monies directly the Creek Nation.'0
Roger Jim, Yakima Indian Nation, ATPRC Task Force #3 1nter-Tubal Meeting, Ft. FallR Febunarv 26. 1976, prepared statement, p. 19.
4L 7 Stat. 47. 48.
15 Johi Rainer, American Indian Scholarship Inc, AIPRC Hearing, Denver, Colo. Vol. IV, p. '7 Syvester Knows ;un, CoaliLion of Indian Controlled School Boa.-ds, Inc., AJPHC Hearing, Dever, Coo., Vol. IV. p. 5-46.
a irne. John C., AIPRC Hearing, Denver, Colo., May 8-9. 197. Ol IV, P. 50. "Sylvester Knows (iun, CICSB, Inc., A1PRC Hearing, Denver, Colo., Vol. IV, p. 565, E MLouss, Creek Nation, AIPRC Joint Task Force Hearing, Muskogee, Okla., VoL IIp. 80.
Addtinalasecs of1higher educational traiin revolve around th nedoftriba governmet tobin her educated pole back to
.. wenthey graduate, even though~ they have their PhD's, or Masters, they eanillafordtogo into Indian communities or tribal communities because so ofte somanytries and commuinities are so poor they cannot pay the salaries
tha thse ighy skilled individuals command.5'
Unles te fderl gvermen prvids tribal governments with
addtioal uns to establish competitive salaries, the Indiatn professona wo't return to the tribe.
The eedfor qualified teachers who are sensitized to the aspects of
Indan section has been recognize by the State of Montana as
We oul suelyusesome kind of federal assistance in the Native American
Studies rogamsin. the University level~ ... three years ago we passed House Bil 34 an HoseJoint Resolution 60 which did this, it required by 1979, that allteaher techig on or near an Indian reservation have Indian studies credits, and y 184, ll ees in Montana hae nian studies credits so that they hav teenitviy o be able to death Inianswho are in theircses and al~o t prvid inormtio n and sensitivity tohe, non-Indian. One of the great thigs hatthefedralgovernment could dois of course link t~he federal subsidy monis tat o toIndanswith an Indian studies requirement so that you insure,
in he utue rgadless of what the state is that hs people have sensitivity if
they ave Idian opulations.12
Due o a hanged in BIA regulations, Indian college students have
to xahstseveral non-BIA financial sources for loans, grants, and schoarshps.This not only places 'the In~dian student in competition.
withnonIndinsbut has created a situation wh~ereby Indian students, mus deen heviy o the BIA Educaton Speialist. A young college stuentreltedher experiences and difficulties in getting action out of er duction Secialist.51 Similar experiences also. cause many college ~ suettodop out simply because they can't make ends
IncoclsinBIA's rolein Indian educto needs to be realged,
resonsbiitystengtened, and more funds made available.
6. LASIG AND NEGOTIATION, MANAGEMENT AND ENF'ORCEMENT
The rreponibility of the BIA to properly oversee and4 negotiate leaes f Idian land was cited in several instances as a major con, triuto tonon-Indian encroachments on Indian reservations.
(a)Leaesare negotiated~ at rates substantially lower than the, apprisedvalue, so the non-Indian lessee realizes a great profit: We hve noterAease that was~ approved by the Bueau of India~n Affairs.
Theappaisd vlueon the lease is $5,500. The lease wa executed for $3,750, forno rymeor reason why, and the Bureauprovdtelae1 Thr sanisac where a lady got $1,000 for an oil les. Right adjaet a
(b uleain results inprofisto telee nsead of tlandWeaehaving a lot of trouble in grazing. These are Indian operatoslaig
lan frm idiiduls nd he ar su-lesig to outside big cattle operate an4.t
u Aic6 chbakAIPRC Hearing Denver, olo. ay -,97,VlTTp 441-448,
94Newt Lamar, Wichita Tribe, AIPR ern- Denver, Coo. bdy -9196 V ol. II, pp.4M57 bd p. 459.
they get all the money while the landowners, we don't get any at all and-hat is what the conflict is all about in the reservation."
and residential property:
. the attorney that has taken both the cases (Oliphant and Belgarde) lives on our reservation and he has also 36 acres of our tribal land leased for 50 years.
* * We get $7,000 a year lease for the first 25 years without being able to be negotiated, and in return, the gentleman who has the lease, he leases out lots between eight to twelve thousand dollars a lot. This is on 36 acres of waterfront property.57
(c) Lease violators are not properly reprimanded by the manager and enforcer-BIA:
The tribe feels that when a non-Indian farmer violates a lease and is given only a 10-day period to rectify the violation with no further reprimand, theBueau is being remiss in not protecting the rights of the Indian landowner.58
(d) The BIA has acted in concert with non-Indians and other government agencies in perpetuating illegal leases:
We have a case where the BIA has ruled that a lease was invalid at its inception. This concerns farmland owned by the Wichita Tribe. The alleged lessee is preparing to harvest his second crop, even though he has no lease. He has been able to exercise dominion over the land with the assistance of the Chief Natural Resources Officer, Herman Lewis; the Field Solicitor, Benno Ombrock; and the Commissioner of Indian Affairs, Morris Thompson.
(e) The BIA has failed to develop good management techniques for leases on Indian land: ,
A basic principal of management is to make wise decisions. In order to make wise decisions, management must be familiar with the situation which having knowledge of the facts pertinent to the situation. * *
The Secretary of the Interior, being the trustee of Indian lands whose statutory responsibility includes deriving maximum economic benefit for Indians from such lands when approving leases, should be aware of when all leases expire, location and size of such leases, effect of such leases on the Indians, rents, royalties per unit, information on comparable current leases on public or private lands, etc. Without such data, it is obvious that he will not be effective in fulfilling his responsibilities. Data collection and record keeping appears to be a problem which continues to plague most units of administration and management in the Department of Interior and particularly, the Bureau of Indian Affairs.60
7. CIVIL SERVICE AND QUALITY EMPLOYEES
As Civil Service employees, BIA staff have become so imbedded into the system that they are immune to Indian criticisms. BIA employees have been most consistently characterized in the following manner:
You have a lot of GS people that are, you know, making a whole lot of money, probably don't have the tribe's best interests in mind. They're just biding their time while waiting for retirement. Them people should go.61
With such career-minded people, the best interests of the tribes are only secondarily considered. As stated by one tribal leader:
If there is no perception of real Indian needs, then, there is little will to deliver.0
"Ha7el Blake, Fort Berthold Reservation, AIPRC Joint Task Force Hearing, Aberdeen, S. Dak., Vol. 1, p. 217.
F Richard Belmont, Suquamish Tribe. AIPRC Hearing, Denver, Colo., May 8-, 1976, Vol III, pp. 429-430.
I Hiliry Skanen, Coeur d'Alene Tribe. Prepared testimony for ATPR0 Hearing, Denver, Colo., May 8-9, 1976, p. 1.
Newt Lamar, Wichita Tribe, AIPRC Hearing, Denver, Colorado, May 8-9, 1976, Vol. IT, p. 454.
00 Robert Chiago, Native American Studies the University of Unit. Paper submitted to AIPRC on energy, resource development and the leasing of Indian lands, p. 5 & 6. ed Dakota, Keweenaw Bay, AIPRC Joint Task Force Hearing, Superior, Wlsc. Vol. II, p. 38-871
Al Trimble, AIP RC Hearing, Denver, Colo., May 3-9, 1976, Vol. II, p. 253.
peole avehad to resort more and more to qa mpomn
proen o Ke a effective solution to the employment problems, as I~~~ lanhda E omplaint in 1974 and my cmlitwshne rud
ddled it an quteoften, appeared to be inordtruhalteamnsrtv as ellarenotallIniai because sice 1934, teIda rfeec a a
To manifythe npetency demonstrated byms Ipe.
*onelthe wrngflly involve thesle ntibal oiis
The ladrshp f heVillageissomehn for the Villageto eie o h
IF~m o Inian ffars.It~ is just convenient for the Biureu. of IninAfar
to econiz soeoe else who agrees with their policis which i what they hav vasone, f he aemoedrclinldnthe slction of
itaf, ot loall ad naionally. This does not guaanteeatol whee prsoneaction will be more accutbeothpol. the popl tey xe hiedto serv. There are quaifed pepleapenty aloe
gret cunry;evrycolor imagnable that arefildwtemahan
aittps xoun watin fo~r attrition to solve our problems is not anacetal
Indan, av- ealt with the Burea of India Af ir n its pee
cesors sice1775, longer that any other federal agency. The have wkasse th trnsfr o Inianadmnitration frmthree Deartmens o Idian Affairs to the War Departent,to teDprmn
qf heIneroran fnaly ratinaed aogvarious feera agnces,
Indin Afairs' present structure is the result ofa rainet
sam srutualorganization which has operate since th mid-190s Thepolcywhich stimulated the three level orgnztionalistructuire
new~g, nadakoOklahoma, May 14,1976, p~. 11.
in the 40's was aimed at "get the national government out of the Indian business" and "assimilation of the Indian population into the non-Indian population." This structure was established to facilitate what became a formal policy of "withdrawal" and "termination."
1. AREA OFFICES
The introduction of Regional Indian Affairs offices or 131A Area Offices brought about opposition from Indian tribes and Indian organizations. This is reflected by resolutions adopted by the National Congress of American Indians when it urged once in 1952 and again in 1953, that the Area Offices be abolished. In spite of this position, the NOAL persistently urged that the continued operation of the BIA "is consistent to the welfare of our people" and suggested that the BIA ought to "become an instrument to serve the welfare of Indians and that Indians shall not be an instrument to serve the welfare of BIA officials." (NCAI Resolutions: 1951, No. 4 and 16; 1955, No. 23; 1973, No. 38.)
These policy views and opostion to Area Offices were echoed by witnesses giving testimony fore the American Indian Policy Review Commission. Witnesses testified that the Area Offices were considered a means for increasing "red tape" and they were unresponsive to local tribal needs. As a remedy, several witnesses recommended that Area Offices be abolished while others urged that they become technical assistance agencies without line authority. Many witnesses emphasized increased tribal and agency authority and a direct line connection with the Central Indian Aff airs Office.
One witness describes opposition to the Area Office this way:
One matter of particular objection regarding the Area Office role is that of apportioning funds to agencies, tribes and reservations from that level. Aside from the purely unacceptable political power it places in the hands of the Area Director, it also leads to a magnification of his administrative power and maintenance of staff and overhead. This is extremely burdensome on the Indian programs which are intended for Indians at the reservation level, or where help is needed.6w
Problems with the Area Office were described by another witness who urged "abolishing" the Area Office:
Area Office directive authority is largerly inefficient and ineffective in that it . often dilutes and alters important communications between tribal and Central Office information transmission. This results in long-run negative impact on trust functions in the Indian administration. * *
.. Our recommendation for abolishing the Area Office does not mean a reduction in the BIA budget, but does mean that those funds will be transferred to the local agency level.07
Similar testimony was presented by the first Vice President of the Affiliated Tribes of Northwest Indians,"' the former Chairman of the Quechan Tribe,69 Chaiman of the Shoshone-Bannock Tribes,70 and te Area Director for the Minneapolis Area Office of the BIA who said:
I feel that federal government structure should also be examined . authority should be delegated to be as close to tribal government as possible so that the 61 Al Trimble, President, Pine Ridge Reservation, AIPRO Hearing (U.S. Congress), Structure of the BT A, Vol. 11, p. 248.
91 bid. Testimony of Pat McLaughlin, Cbairman, Standing Rock Sioux Tribal Council, p. 37. Is Ibid, Lucy Covington p. 239, Vol. 11.
01 bid, Eimer savilla, p. 2i. 'Vol. 1.
71 Ibid, Kesley Edmo, p. 166, Vol. ii.
longdelas d not~ result inatepigtbrnaoubterdlvy
Uii iii iiiii~ iii
thorty, emhasis was placed on the need t nraeth uhrt
Af er rgig tatArea Ofi e rovide technicalasitne th
Z The gency evels sould be given more authority adrsosiiiyfreiin
makngin program areas. The agency level must have te admninistratiye X. cpablit provide service and response to the needs of tribal governments. *
%.. Th agnc leelsmus hve udgtay rsposibliy tgeterwith program
resonsbiityif heBIA is to respond to the needs of Indian trbes.74
Emphsizig th ned for local control of Burea prg msM yo
Wall Lesk, etlkatl Inia~ndC m uiyA nteIsad e
TheCh~air a cost the MVaah Tribl ti unber en e Pakr de
scried hy hs ft a rcomns tat "all maaemn espn
101 Th, poc d es t oa w have tong ahoge n de toga n y tir ofacivt
:The procedur is tie-cosuming, th Tid exensiefrte rbadt0%o h
At ime, tisasF o st ftel e a Tribe, lottmbrrveu ro ibe ae
ff e r i n g s g o i n g w it h o u t b i d ." ,,, ..... '' ~, ,,i i
ClrfceW se of,,,, !,L,,i! !~i San ,!, Carlos Apache, iiAli zonaii expressed the v..............ie............w "!
tha 'theii~ "A re O ffi~i i are~~ dui cat~ii i ons ofii~~ serv, i~iii ~ i i!iii~iiii !i ii~iiii~~iiii i ces' iiiiiiiii~ii' iii i ii,i re -t p an aiiiii iiiii~ !!! iii buck pass i~~iing peaton ad heefresugete "ta authoriii~~ i! ~ii~~iii; ity and~ii~~i
responsibiliiti bei brought back to the reservation level whereth
p r o b le m s i r e a lly i !! a r e s t i ngiiii u p ."~ iii~~ii~i!!il ii~ H!~ iiiiI ~~ ;! ii ii i~iiii J iiiiii!iiii~iiii'i !iii!, i iiiiiiiL .. i 'iiii ~iiiii~iiiiiiii'iiiiiii~iii! .. iii
ev ra tr iesi hi lei~~iiiiii ri ngiiii gre te au th orityiiiiiiii! atii theii~ agen cyiii~i~ level .. iiiiii~~~iiiiiiii!ii......... i! 'iii~i i "'"ii~iii ,, i, iiii~iiiii'i i~
notediI their!! desire to hav anagncylocte ontir reservation.
T h z se r i e il are serv ed =iii~~ii b yiiiiiiiiiii m u lti-trib al ag en cies an d ex p ressed 'iiiiiiiiiii~iiiii~i =iiiiiii~i~iiii Aiiiiiii iiii~i !ii~ =i~
H earing, Superior, W isc. Nfarch 20,1976, G eorge G oodw in, V ol. 11, pp. ; 126- -97
... 2 W arren M ea n s, E x D direct r, U T E T C N D a k o ta A IP R C H ea rin g S tru ctu re of B IA ,V ol. TI, p 232.
IsIiMri ilbr x Di~~iiiii~~i~iiii ~~i~~iir. ish Trial Senate, Prepared tesimoy ubitted for thie
T4 TW, Vol. 11, p. 121, Frank Lawrence. United Tribes ofi South Dakota.
is~ Al India Pubo onili peaedts imon urged that ". .................. i w ill q i
$o~: .................................................................sim on y a b o v e cited
Washo Tribe, Tas Force 3 .............. 7-1,176
considerable dissatisfaction with this arrangement. TheChimno the Washoc Tribe spoke for many tribes when he said:
Afl the tribes within the Nevada Indian Agency compete with eachotefr federal services. The Washoes would like to have their own agency.3
This tendency for tribes to compete with each other (or somtie it is referred as the agency "playing tribes off against oneante" is typically described as a serious problem by tribes served b~y a uli tribal agency. The problem arises particularly when tribes must "prioritize" their needs and funding requirements under the Band Analysis. Those tribes who are located more distant from the mutitribe agencies are forced to expend large sums to travel to the aec or ma ke numerous long distance telephone calls to conductbuies These tribes have frequently requested that the Bureau of Inia Affairs establish an agency on their reservation.
0. THE BUREAU OF INDIAN AFFAIRS AND) WINTER
Since the transfer of the Bureau of Indian Affairs frmth War Department to the Department of the Interior, the quiestinhsbe raised: "Where should the Bureau of Indian Affairs be lctd" Another question often asked is: "How should it b~e oraie? Responses have ranged from the 19th century urging to retr it t* the direction of the War Department, the recommendation ta
....Indian affairs be committed to an independent bueuor department" 81 and the 20th century recommendations thatitsol be "abolished" or later transferred to the Department of the n4or As changes in the structure and location of the Bureau of Indian Aff airs were considered during the early part of this century, Ida tribes repeatedly asserted their rights to consultation prior toan administrative or legislative modifications.
Apart from the Board of Indian Commissioners," thefismao influence that tribal governments had on Bureau structuecm ,during Congressional hearings on the administration proposed4nda Reorganization Act. 8 Indian efforts to influence structurecotne sporadically through the remainder of the 1940's and into the next 4ecade. But, not until 1961 through the Americanunin hcg
Conference did Indians establish a comprehensive position onth character and structure of federal Indian adrninistratiou. The hra termination had the ironic effect of binding tribes togehr ni resolve was mirrored in the remarkable document poue yta
Conference: The Declaration of Indian Purpose." The Delrto began:
We beleve in the inherent right of all people to retain spirtual~ and4utua
values, and that the free exercise of these values is necessary toeth nma development of any people.86
1* 1,. Cit. p. 2.
91 Xe,. Comm. indian Affairs, 1868, p. 48. The Peace Comiso appointedI by Act of M201967 15 Stat. 17 made this recommendation to the Commissioner on January 7,1868, but in asuplmnayrot (October 9, 1808) it urged transfer to the Department of War. 82A-t of July 15, 1870, See. 3, 16 Stat. 355. See: Schmeckebier, pp. 26-27. a Fifty-eight tribes representing 146,194 persons supporting the bill while 13 trbesrpeetn 15,21 perons requesting more time for consideration or opposing it.
8 Ibid, p. 45. ~Ida ~ml-O,31 S~mD
majr oerhaloederal Indian afar diitato n oiy
e en "b of nd
of The Conerence declared:
e e *
Thebaic ricipeanvoe oteibesie nthe opr ofIndian t priimpatein
firom ~ a oa eetalizedi ten fic nud initrathv staff peerallote
eitizen~d asrsosbe triaeresinatiespolicies respoibl riacucis
mentstads ntof nopeate ion hi government eadeow Bt resolv stheo mdU~
offciaswrenymod Trinato policites remaind tenglyfe
inthattiudes fairsa tovteDnrment 1 eal.Bth evnsto
(HEW) or to the Exetive IndScn
problms-Inians wierie ntto ae rainfutl imtters affcing
Fortheeih oncurred yenth Indian ealstdthe asetionha
othe BA HEW in the res19toato Ih Indin1,h
quru M c, ... ..6 e ExctveDrcoro h
NationalA aogrssotedican resldin urged ha thturauo
Iairs be removed aro thbe aepart te agency.
Sa dep thbiatta .t: uge
At it annal spptortn169 h CA poed the fomto fa nintrnseo
the Bu epar ndate fro the Department of Healh Euain.tns rela tE to the u
was' found mo a rca r
Indias ashdiaaccurredowhedbte ianelhfntosKdbn
of~ b Indian Affairs bewasve fronted Deatetoftenero
in 1970 tio oCsppote thesformaino nIda rs one
i IA s ter ntter-tribal organizations headd trba patcia
tookse. The poiso t wI f t a rt
steps taken in the Office of Management and Budget which were aimed at establishing an "Agency for Native Affairs" 92 which included- responsibilities for administering other U.S. trust territories.
Major objections to this and other plans developed in the national government hinged largely on the extent to which Indian tribes and organizations were involved in the planning and development of such proposals.
By 1974, the National Congress of American Indians unanimously endorsed a position paper and "Proposal for Readjustment of Indian Affairs" 1 which recommended "the establishment of independent federal governmental machinery to replace the Bureau of Indian Affairs". Contained in the "American Indian Declaration of Sovereignty" which is attached to the NCAI proposal in this urging:
Establish a single, independent, federal governmental instrumentality with concurrence of the majority of the recognized aboriginal American Indian tribes and nations, in order to implement and guarantee the treaty responsibilities and trust obligations of the United States of America under Article Six of the Constitution of said nation."1
The National Tribal Chairmen's Association took a similar position in support of a separate Indian agency in the summer of 1975.11
Since these formal organizational statements were publicly announced, Indian tribes and other organizations have announced their support for various forms of a new structure of the BIA as a separate agency. Common among these various proposals is the separation of Indian affairs from the Department of the Interior. Similarly, support for separation has been conditioned on full participation of Indian nations and tribes in the planning and development of the new agency.
In testimony presented to the American Indian Policy Review Commission on behalf of the Creek Nation, the following was recommended:
...Indian affairs are not solely a judicial nor a legislative duty of the government, nor are they an exclusively Executive duty. On the other hand, Indian affairs are constituted by governmental duties which are simultaneously quasiexecutive, quasi-legislative, and quasi-judicial. There is only one form of governmental organization of powers which embodies these three types of power simuiltaneously: independent commissions and agencies.* *
"Therefore, I strongly recommend that Indian affairs be assigned to an independent commission. Only this assignment of federal power will alleviate the present confusion of Indian affairs with the Executive Branch."1
This position echoes the "Proposal for Readjustment of Indian Affairs" adopted by the National Congress of American Indians in 1974."~ The Affiliated Tribes of Northwest Indians testified to the need for an "Independent Indian Commission" and gave the following description to amplify their remarks:
...recommendation of the Affiliated Tribes of Northwest Indians is the establishment of an independent agency which would replace the Bureau of Indian Affairs, all other federal agencies involved in Indian affairs, and state involvement with Indian tribes. The purpose of this independent agency is to provide health, education and welfare, preserve, protect and guarantee Indian natural resources and lands, and the exclusive rights of Indians to their water, timber and minerals."8 * *
02Crane Report on an Independent Agency, 1971, Office of Management and Budget Sub-Task Force on Native Self(-Determination, Mlarch 18, 1971.
NCAT Convention, San Diego, California, Oct. 24, 1974.
Ibid. "American Indian Deelaration of Sovereignty", part C (See Appendix, E for full statement).
09 San Antonio News, September 1975.
16 Glenn Moore and Robert Tropp, Creek Nation, ATPRC Hearing, May 8-9, 1976, Denver, Colorado.
0 See Appendix.
"f Cal Ptters, Skip Skanen, Wendell George, ANT WT. AIPRO Hearing, May "-, 1970, Denver, Colorado. PP. 61--&5 and prepared testimony appended to testimony.
To isurethat the tribal government shall have the widest possible flexibility in esinatngprograms and setting priorities for their tribal members, all programandfuningefforts will begin at the tribal level. * 9* ThisComisson will be guided .. by nine Indian Commissioners. These Commssiner selected by Indians through a series of elections beginning at~~~~ th rbllee 1
Consstet with the desire to separate Indian affairs from the De-. partmen f t Interior, the United Sioux Tribes of South Dakota~
BIAseviesmust be molded into an adqut structure with functions
relvan totheneeds of the Indian tribes. The BIA must be allowed to function as aseprateagecy with cabinet status so as to eliminate interference of other
Thi vewwas expressed by the United Tribes of North Dakota,' SwinmishTribal Senate, 4 as well.
Whie -eveal witnese for Indiani organizations expressed the view tha Inianaffirsought to be separated from the Department of
theIntrio an fnction as anr independent agency.5
Theprset lcaio of the BIA is widely regarded as harmnful to the
futue o Iniannatons and tribes while its present organization is
seenas xpenive cubersomie and outdated.
2 M. hnit Rak, haiperonof United Sioux Tribeg and Crow Creek Sioux Tribe, testimonyprsne
to APR earig, DnverColorado, May8-9, 1976, Vol. 11, pp. 119-120.
Ibi, arrn eas ad ialh Lekera, Vol. II,p~. 1
Tetion t tise~i aspresebynler M.Svla former Cara fteQehnTie
4prsse hi enorsmet o proposals to: ". .completely remove the Bureau ofIdian Affairs fo ne the mbrlla f te Deartentof the Interior.
"Te bnefts f sch* mov ... (1) The inherent conflict of interest wti h neirDprmn would~ ~~ be reoe;()Teewudb a strong admiitaieavcc ihntenwIda eat
polcy romth Seretryof the Itenior would be removed.
contol heirownar.. free from te heqav bureaucratic~ restrictions taliint theirdelomn. '(Sateien ofEbnr Savilla before IRhernonteSrtr fteBuaufIdinAars
C. DvidGarderPrincipa Chief, Choctaw Nation presented this recommendation in prepared testi-. mon:*"ranferofthe BIAt the Exiecutive Office of the President would give it high visibility and a strng andte orchange and improved performance., (AIPRO Hearing, Denver, Colo. Vol., III,
Oklhoa, ay11, 197.6, Oklahoma City, Vol. 1. He ure:"The BIA shudbe created by Cogesto havedepartentlevel powers as an equal to non-Inidian Department, P L, Departmnent of the Itro HEW, UD, CA, et... under this stucture all funding impacting the tribes to carry out the Uiied Stats Tustresonsbilities to the tribes." (p. 5 of prepared testimony) Rosebud Siu Trb sumte prprdtsiiybfr Haig evrClrdMy8
197, Vl. I hich recommend a solution to the problem of conflict of intrs within the b)epartmen o th latrio: TheBurauof Inda Affairs should breoved from theDeatmn of the Interior and should be stblshe a a inepndntagency within th xecutive Branch ofth Feea government. In tils
FEASIBILITY OF ALTERNATIVE INDIAN ELECTIVE
BODIES ELIGIBILITY OF TRIBES AND INDIANS FOR
A. THE STATUS OF INDIAN TRIBES AND PEOPLE
1. LEGAL STATUS OF INDIAN TRIBES
(a) Indian Nations and Tribes as Independent National Entities
Anthropologists and historians have estimated that over one million Indians, making up over 600 societies, lived in what is now the United States before the first landing of Europeans.' A complex trade economy and highly structured governments were found wherever European explorers traveled. Indians exercised all the governmental powers necessary to maintain social, economic and political stability: There can be no doubt that the numerous distinct governments checkerboarding the continent were nations.2 These Indian Nations were dealt with by all of the early European countries who estalished colonies in the New World, and then by the United States. In all, there were over 800 formal and informal treaties with Indians through 187 1.3 Such treaties covered the full range of relations between nations, including trade, social intercourse, land cessions, and the ending of war. By definition and by example of international relations, Indian tribes fully met the qualifications of nationhood. The treaties concluded among themselves and with European natins and the United States carried the full weight of law. This point was explained by Justice Marshall when the Supreme Court held
The words "treaty" and "nation"' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well-understood meaning. We have applied them to other nations of the earth. They are applied to all in the same sense.'
That treaties were concluded between sovereign Indian nations and the United States is supported by the position taken by U.S. Attorney General William Wirt, who said, in 1828:
If it be meant to say that, although capable of treating, their treaties are notL to. be construed like the treaties of nations absolutely independent, no reason i's discerned for this distinction in the circumstance that their independence is of limited character. If they are independent to the purpose of treating, they have all the independence that is necessary to the argument. The point, then, once conceded, that Indians are independent to the purpose of treating, their independence is, to that puTrpose, as absolute as that of any other nation.G (Emphasis supplied.)
Indian nations had the capacity to govern. themselves, make war and peace, and form alliances with other nations. Having such capaci1 John Collier, Indians of the Americas: A Long Hope, p. 101. I The term "nation" comes from the Latin natlo onis. I Numerous other agreements both written and oral were made to define te relations btween nations; these too are considered treaties.
Worcester v. Georgia, 31 U.S. 515 (1832).
2 Op. Atty. Gen. 110 (1828).
The ndepndet national character of eac nia ato wsseue
-ofvaibu, ing "nd otntaeswere concluded, the ntr of Ida
-somigty remain nalerd. As Justie Marhal concluded in
-stoneran tain it potetin.A wekstate, in order to provd o t aey
ma- lae tslfunerth potftor of~ on more powefnl wihutsrppn xal
-of~ ~ ~ ~ ~ ~~~oe rapdl rintt ofgvenetaddesngt b tae?
Though~ th nd purcasealand wthe cdrmvo Indian ain codnt proocos smilrtMihssisie had Euopene argentrcts mofain prei
-deciddbX diffirn TeCntinal Chogrtes acofnforced removals t~~~ reatyi elaae wiothe purpatoes of4 def e b~oua-e
botwen he Clones n Idan erreiory anfring a mansato
the~~ ~ war opitth.uie fora theain theUited States. sogtteaiswt
Indian nation e ath peruos land cessiptonsmao ro
0UV of Copnatin for land purwcehased ouo their otateiTheM- l mtato befm the Ujectte f i ts Sreym lun emerged-- endere a wherng olnep by whieo hs Indian on oatins ctaud bhei idepiendenThe aoutherghd goen
wa us ry vioaooftetswihIdian naiosndterefore aviola
several judges that Indian tribes were indeed independent nations. A strong decision supporting the complete independence of Indian nations would have been more in line with the facts.12,
Chief Justice Marshall's decision had the effect of defining a U.S. responsibility to protect Indian nations and tribes against encroachinents by states and recognized the weakened condition-brought on by the destructive militarism of the United States-of the Indian nations requiring U.S. protection. This decision did not in fact reduce the tribes' authority; but it did serve as the means by which the U.S. government justified extension of federal power over Indian governments.
It remains a settled legal doctr ino to this day that Indian nations and tribes are "dependent nations" of people; dependent on the greater' power of the United States for their protection and survival. This condition of dependence does not reduce the national powers of an Indian tribe or nation, though as a practical reality, tribes have reduced their own powers by enterh *into treaties and agreements with the United States. Tribal powers ave further been reduced by unilateral usurpations without the consent of tribes, by the United States. Nevertheless, to have such reductions in national power does not diminish the national character of an Indian tribe.
The legal status of Indian tribes as "domestic dependent nations" was used to refer to "political dependency in the international sense," 13 of a lesser power taking the protection of a greater power. U.S. federal authority to regulate Indian affairs ends at tribal borders. 14 It can be said, therefore,. that the United States has the authority to control the external affairs of Indian nations and tribes, but it does not have the authority to supervise,, regulate, or control their internal affairs unless consent is given to do so.
2. POLITICAL STATUS OF INDIAN NATIONS AND TRIBES
Indian tribes and nations do not have a role as political entities, either as members of the family of Indian nations, or as political units within the federal Union that makes up the United States. Their political status has been characterized as "unique" though no specific interpretation of uniqueness has been developed, except in terms of the relationship between Indians and the United States-likened to that of a ward/guardian relationship. But, nowhere else is there a comparable relationship except perhaps the relationship between the Micronesia Islands in the Pacific and the United States. This possible comparison is discussed in Section E.
(a) Indian Nationg as Stateg in the. Union
Early in the history of the United States, attempts were made to include Indian nations as formal members of the federal Union. Such attempts axe reflected in the first treaty concluded by the Continental Congress with the Delaware Nation." Contained in the treaty was a Proposal for the creation of an Indian state ". . where the Delaware 14ation shall be the head, and have a representation in Congress." In the treaty of 1785 with the Cherokee Nation, it was provided that Is Tbid.S. 65
Is Russ L. Barsb, Henderson Tribal Administration of Natural Development. National Law Review, Vol. 52, No. 2, WiWer 1975, p. 314, fn. 37.
14 United StFi tes v. 43 Gallons of Whiskey, 93 U.S. 188 (1976).. 16 Treaty with the Delaware Nation, 7 Stat. L. 13 (Sept. 17,1778).
"thy sallhave the ight to send a depu~ty~ of their choie, whenever
ytikfttothe Congress." P~ublic senitiment i po1 ~a
nation becoing states within the Union continued for one hundred year, bu indirect actions were taken to imnplenment the treaty provisinsustmentioned or actions to respond to public opinion.
The UitedStates continued to deal with each Indian nation and trib assepaatepolitical entities having no political affiliation with eachothr nr wih the United States, except as expressly stated in treaiesandagreements, until 1871, when Congress enacted the Appopraton Act of March 3, 1871 containing a rider for the
terinaio of treaty-making with Indian tribes. The heaigre
gaxingthe"rider" reflect that the House of Rlepresentatives felt that theSentebeig the only house to confirm a treaty, was committing a funingreqireent without any House participation. This rider was for roceuralurposes rather than a direct intent to chang the politiCal tatso Indan tribes." Though this Act did not prevent the
proessof reaingwith Indians by agreement, it has served to diminishi the riba na ia charater which had been commonly recognized sinc theEuroean first placed settlements on the continent. The 180smxe the firt decade in the history of 11.S./Indian relations
in hic te gowth of federal Indian law was entirely a matter of
legslaionrater than treaty.
(b)IndanNatons as Territories
'Though nleilation was enacted, nor specific agreements made betwen Idiantribes and the United States to change the separate stats ofIndan nations and tribes, the nature of tribal political status
tookon he carater of territories in the minds of legislators and admii tatos. n a case eoncernng the authority of an administrator apone by a probate court of the Cherokee Nation,'7 the Supreme
. Insome respects they bear the same relation to the federal government as trrior dd i its second grade of government, under the ordinance of 1787.
Suc teritry assd its own laws, subject to the approval of Coges ,and its
inhbitntswere sub ject to the Constitution and Acts of Congress. . It is not orein, ut a domestic territory,-a territory whichi originated under our
As epaate political entities, dependent nations and then Indian
teritristhe Courts had held to the doctrine passed down by the
Supreme Curt in Worcester v. Georgia,"9 that:
Thy nd their country are considered by foreign nations, as well a. by ourselves, as~~ ben s ompletely under the sovereignty and dominion of the United States thtay attempt t~o acquire lands, or to form a political connection with them, woul be wondered by all as an invasion of our territory and an act of hostility.20
Suh status was clearly never contemplated by tribes as they entredinto treaties with the United States.
(e)IndanNations as Colonies
Thepreent political status of Indian nations and tribes has be
chaacerzed as one of colonies under the domiain and rule of a
1Makyv. boxe, 18 How. 100 (1858).
"'government department" of the United States. The "colonial status" of Indian nations began with the unilateral termination of teting with Indians and the assumption of agreements and legislation.Th colonial character of Indian nations and tribes today stems from they United States imposing rules over all aspects of Indian life. Frombit to death, the Indian individual and nation are subject to totalitara authority of the United States. The United States imposes its form of education, which attempts to alienate the Indian child from hi/e parents and culture.
The second International Indian Treaty Conference, Yako
Lalkota Sioux Reservation, South Dakota, June 13-20, 1976 declared:
The United Statles has imposed a foreign formn of government on the Indians and recognizes that government . not a traditional, legitimate government. The United States maintains that iio Indian nation's law is effective withoutu United States approval. It imposes its criminal law, foreign trade, currency, osa service, radio, television, and air transport regulations on reservations. ...A Indian nation is not even allowed to sign contracts or to hire a lawyer without the permission of the United States. Any self-government left to Indian nations by the United States is, it is made clear, left only by the grace of the Unitd ~Stes Congress. The United States maintains it has a right to, at any timne, pas a law. and make it applicable to Indians on their reservations whether or notthlas conform to treaties with Indians, to international law, or to the United Nations Charter.21
As two hundred years of Indian/U.S. relations have evolved, thie question of Indian political status remains unresolved. Indians, as people, do not fully exercise the right of self-government nor do thy have the right to participate as Indian nations and tribes ina the e cisions which affect their lives and welfare. This state ofafirhs given rise to frustration and violence in various parts of Ida Country. Indians have discussed among themselves and pubicy stated alternative approaches to settling the question of India~n political status.
Same have urged that all of the Indian nations and tribes ought to be joined politically to form an Indian State,22 a fifty-first state~ of thie Union. Others have urged the United States to recognize the sovereignity, and independence of Indian nations and tribes. Such views reflect the wide diversity in the positions of tribal governments regarding Indian political status. It is clear, in spite of Znthis diversity, that any determination of Indian political status must evolve from the Indian people and their respective governments and not as a result of U.S. unilateral action. The latter approach most surely will not settle the question of Indian political status because of the inureasn disinclination of Indian nations and tribes to take direction from the United States and their greater inclination to define a status as result of inter-tribal negotiations. An imposed political status rather than an agreed-upon status which is a product of bilateral negotiations can do nothing more than bind Indian nations and prevent selfgovern ance and diminish the chances of an emergent self-suffciency. 21Ibid, pp. 8-4.
Indian Leegslative Institutions Workshop. Task Force M.3 Feb. 14-15 1976, Washin~gton, D.C. 01 The Second International Indian Treaty Conferencem"Red Paper," June 13-20,1976.
AnInin rbe n t ms simplitic defnition, is a commWunity of
ab oigialpeolewit agovern-mental form containing its own
leaersiprulngthe people occupying a specfi rtin f he western hemsphrepior to their discovery by the 'luropeas The word Tribe idened by Webter a"apgroup of personshvn a common chx e, occupation, or interest." d~ina:"ya'rb'W
The upree Court has supplied a deiito s:"ye tib'w
undrstnd b~ody of Indians of the same 1or similar reunited in ,a cmmuityunder one leadership or goverment, and inhabiting a
pariclar toug sometimes 11-defined, territory." "
To denifyspecific characteristics omnon to a tribe, it is necessary
to~~~ eaiehsorical records. In comparing early maps sho~wing tribes occpyngterrtory in the pre-European era with the most recent maps givig ore accurate imformation, there are still errors. There axeeleent whch have been used for establishing the comnmonp charactrisic. Pimrily they had a form of government with an accepted leaersip represented them to other tribes and the Europeans,
honoed y teir neighbors.
Therewereother characteristics which were more conclusive in
deteminig that there were "different" tribes and that they were not of he ametribe or nation, and that was language. Tribes could not coners understand one another. Consequently, it was soon discoveed tat the tribes were not segments of a single entity, but each trb as a separate entity. Studies have gone further to indentify varos forms of government, affiliations among tribes, culture, religious crmonies, nomadic hunters, agriculturists and other minor distinctiv feturs. These differentia~tions still exist today. Therefore, in
defnin aTrieone may use a defniio a.s simple or as complicated s ncesary One suggested defintion~ follows:
A Tibeisa community of aborigoindl persons unte inmao
commo chaacteristics as
()a goernmiental organizational strcture
(2)ocpying a common territory pro to European settl~ement
(3) istnctfrom other tribes by one or more of:
(b)cutualdifferences, nomadic hunters, agricultursts
Itisunertood that the descedat ftetie neitnewe
istcsma, alsohae changed, but it is this dsdnyln hc
no spprt that such existence was evienedin a cniuu aue adoumented by hzistorians, anthropologists, and,motipraly
the tribes heselves. In view of varostie cuyn ertr
incoeproximity to each ot, the wer aware ofec ohr
From tsfctis, aso, assumed that supportforreontnwul
24 Monto~ya v. United States, 1W) U.W. 361 (19M) P.2
An American Indian is a native descendant of aboriginal persons whose ancestral ties have been with an identified tribe. Tribes today have generally established membership criteria and as such, any member would be considered an American Indian. There are, of course, situations which have caused tribes to change membership rules, be disbanded, or so disorganized that the normal membership process has not been maintained. Any Americaln Indian would then be required to show proof of ancestry in some form acceptable to the federal government, in order to be eligible for such services as an American Indian.
It is certain that a settled definition of a tribe must flow from the deliberations of tribes themselves, since it is clearly the case that for two hundred years and more, the application of European standards has not permitted a clear understanding of the issues. Until such time as Indian nations and tribes fix a definition among themselves, it is obvious that the United States must rely on the most basic definition.
The commonly used criteria noted above for identifying tribes which may wish to take the protection of the United States leads to the erroneous assumption that all tribes were known by the government so that the U.S. could deal with them. It also assumes that all treaties and agreements were successful. Clearly, neither is the case. The United Stlates must extend its protection to those tribes which~ can demonstrate a right to territories not ceded to the united States and that people who make up the tribe share a common descendancy, whether or
no aguage, culture or historical tradition has been maintained; and can furthermore demonstrate a link to the existence of a body of people who occupied territory before the. settlement of the lands by non-Indians.
2. WHO IS AN INDIAN? 25
Odd as it may seem, there is no more complex problem than to decide who is or is not an Indian. This is largely due to the application of the term "Indian." Since the term is not of aborigiinal origin but rather European, it is difficult to apply the term. It is therefore difficult to distinguish an "Indian" from anyone else. However, the problem becomes more manageable if a person's identity is linked to a tribal culture, society and government which combines to make up a tribe. A person's relationship to the language, culture, descendancy or historical traditions of a- group of .human beings denotes an identity.
Since the numerous members of tribes and nations did have names which distinguished one group of people from another, it is not uncommon to describe a descendant of the tribes or nations by his tribal name. Normally, one's identity is also related to whether a loyalty to a distinctive tribe has been agreed to by the members of that tribe. Therefore, a common community acceptance of an individual as a member of the tribe fully served as the means by which that person could be identified by the tribal name. In its simplest form, this method of defining a member of a tribe is no different from the method by which an individual becomes a member of a nation. The methods may be different and the custom may be different, but
U "Who is an Indian," unpublished paper by D'Arcy moNickle, 1978.
ofcutos ndmethods bywhich a peso becomes a member of a trie.Itis noghto say tat to be ientified with a tribe, one must fis b ecgizdby a tial comnty a en a member with the righ toshar inthe ommn culture and traditions. To require ls
'woud uderine he eryexisenc ofthe tribe as a whole.
I Fdealreogitonas orgnlycnevdwas appliedthogte
Deaf~et o Itei uchthe saeas the Tut Reposibilty
wr memer" of recognzd tribe. This resulted in questionable
The SyderAct provides for rcgiino rbso nin n
'IniviualIndanswith noseaainatowrelcednray i prtculr esticion.$uch restrictions as now ben pplied are
In ate yers henfeera prgras wreprovided for American 'Inimsin-oterdepartments of the Govenet e rtrao 'elgiiltywee evloped-"Fedeal Reonzd ande ecm
"ntrir Rconied" tribes. This has seved todsutadprovide harh eeing btwen Indian tribes in coptitio for apprpriations. SomeDepatmets refuse to honor th nterior criteria, and the (Ceonie rbes"' felt thtNnRcgie rbswithout
offcia" rconiton eregetin aproriations to which they were notenttld. heresult has been ta l rbsaevruly"eeal Recogized, bu their sources of funding are fragented There isateory that recognito is given only tothswic estblihedanobligation of the government through atrayThe wer trbeswhodid not execute a treaty because they did not want to b depndet, or who were not satisfied with the kind oft"payment" ,being ofrdNerteless, such tribes weeidetified, were displaced, .wee rmovd, generally ignored. There is a current theory that theyshold ow propose a settlement agement with the United
At~~~ ayrtietification of all tribes according to the sgeted .deiniionis ecssaryr. Recognition as tribes adpol n~ h 'proecton f te United States is unavoidable. T orc l h accmuate i 'justices is probably impossible, bt as t~heyr have been id~tfidtheir needs should be assessed and minded for cnieraThe mmbersof sch tribes or thoseprvnacetlrltishs
eve, hes pogrmsare now underway and tedfntion as toth
tritriaof he edeal gvermen isbeig aplie cosisenty b a4
Deatet and Bueas
C. TRIBAL NATIONALISM AND SELF-GOVERNMENT: A QUESTIONS OF HUMAN LOYALTIES
1. RE-EMERGENCE OF TRIBAL NATIONALISM
Indian nations and tribes are reasserting their national character through an expanded assertion of tribal sovereignty. A rising sense of individ ual Indian consciousness places one's tribal membership, above other identities. The survival of tribal cultures through tribal language, educational institutions, establishment of tribal economies, the re-emergence of tribal religious institutions and the increasing exercise of tribal governmental powers all contribute evidence that tribal nationalism is increasing.
Ironically, the seeds of the present day emergence of tribal nationalism are based in the example set by the European imnmigranots to the North American continent when they sought emancipation 'from the tyranny of their mother countries. The Declaration of Indepen dence and the United States Constitution, patterned from early American Indian forms of government, have become the model for the Indian nations and tribes which had been pushed aside to make way for the new homeland for displaced Europeans. The irony is that-.
... today, two hundred years later, the federal government established by the Europeans is under ever-increasing pressure to limit its power and authority, while in stiking contrast, tribal governments are pressed daily by reservation Indians to increase their exercise of sovereign powers.27
The beginnings of the re-emergence of tribal nationalism came with the enactment of legislation by the 83d Congress aimed at terminating several Indian, tribes, liquidating their land holdings, rights and resources. 28
Sensing the trend of termination, in 1948 the National Congress, of American 'Indians vehemently opposed all termination and "general competency -bills" being considered by the Congress. Indian nations and tribes asserted that individual Indians should be allowed towithdraw without jeopardizing the whole tribe .29 For -succeeding years thereafter, Indians insisted that termination of services to, Indian nations and tribes be predicated on complete consultation. and consent of the affected tribe.30
In 1954, an emergency conference was called by NCAI to discus& termination legislation and organize protests against it. President. Joseph Garry stated:
The crisis by introduction of bills in Congress to terminate federal services and supervision over Indian reservations now faces us in clear-cut terms. Though the bills before Congress today affect only a limited number of tribes in certain states,. it is almost certain they constitute the first wave of attack.
In standing together to oppose (such) injurious legislation, .. we shall not only conserve Indian values, but serve the best interests of the United States& by protecting its national honor."1
The threat to tribal existence created an atmosphere of insecurityamong tribes which in turn established a pattern of tribal inter26Daniel ff. Iqrael, unpublished paper, Native American Rights Fund, Boulder, Colo. April 1976. 27 Ibid, p. 10-1.
29 This began with the enactment of H.C. Res. 108 and the subsequent termination of the Menomina Tribe of Wisconsin, and the Klamath Tribe in Oregon. 20 NCAI Resolution No. 21-1948.
30 Historical Indian Priorities and Policies, 1900-1975, AT PRO, 1976. ft Ibid. Emergency Conlfeence Report of AmeriIcan Indians on Legislation, 1954.
Ininntions and tribes by thie ni~tdSae ho emnto
d ur ng h e d ec d of th e ix tl es an d ea rly p art o f t e s v t n i In o tkemoe deliberate sesto protect ia
eeos r winter sts.he
'I sgifnt candi porosiyf the Executve~ adiJudiciarytofth inrpsd proeto fIda rits;94 h
of federtnal undsatriggerederhe exptnsionrofitribalreetlao way troierbttrbeetst;
3.Anumaerions witheos oadndcesu tons theaen oy
mrbe onterofeninatie.12nd tei wn
'inre~in aseriwnes gofribnal govrnmits toprtctthihln Usedeveof theomi sommuity an meuateteitera hif aiso theIndi naives Thon Itwasmpibne wto esatie encmet andicre ed fningia caanbiitial, tepbesaen dgter flexiilt
-to aset heiroitress Ash a triesulbecame trblaed o*oue
-morepail andve morel The thkeuiynrseriy o th indvulIda
Theenctmntofthe Euail Opounty Atof16anth
suseuet dmnitrtie ncusonoftrba gvnmetew liil
reciiet ffdrlfnd rgee heepnino tia oen
3. REGIONAL AND NATIONAL TRIBAL GOVERNMENT ORGANIZATIONS
As pointed out in an earlier section, tribal governments join Ied together for collective action beginning in the 1940's to oppose U.S. termination policies. Inter-tribal associations or confederacies have existed for over four hundred years. Indeed, the concept of the confederation of nations or states was borrowed by the founders of the United States from the experiences of the Iroquois Confederacy-a political alliance which exists today."3 Through the 20th century, Indian nations and tribes continued to form associations but to an increasing degree, these inter-tribal instruments were chartered under state laws. As a consequence, the charter of inter-tribal associations took on the image of "voluntary organizations." Though tribal governments regarded such Indian organizations as much more than mere voluntary organizations, legally these instruments could be considered as nothing more. Because of legal constraints on the handling of moneys by inter-tribal organizations imposed by the U.S. government, the scope and powers of inter-tribal mechanisms are considerably limited. Withthe emerging nationalism of tribes and the broader exercise of sovereign powers, tribal governments have become increasingly reluctant to empower inter-tribal organizations to act on their behalf. The result has come to be that inter-tribal organizations came into existence to advance the collective causes of Indian nations and tribes, but they do not have the power to decide matters directly related to the internal affairs of tribal governments. Inter-tribal organizations are instruments of advocacy. Actual decision-making is reserved to tribal governments and their members.
D. U.S. INDIAN POLICIES AND P ROGRAMS: TRIBAL INFLUENCE IN THE NATIONAL GOVERNMENT
The question of whether it is feasible to establish a national Indian body to provide direct participation in policy and program decisions of the national government is an important question which has concerned Indians for more than two hundred years. As the earlier sections of this chapter show, there are numerous f actors which must be considered in answeringr this question. To determine the feasibility, we must first account for what the present political status of Indian nations and tribes is now, as the preceding sections indicate this issue alone is complicated by ,virtue of the need for Indians and the federal government to agree on the crucial nature of their political status. Because there is no common position among Indians on this subject, it could only be determined as infeasible to form any political confederacy of all tribes which had the power to decide tribal policies, tribal programs or tribal laws.
As a general discussion of alternatives, however, it is possible to review various ways that tribal governments could politically relate to the United States government, though tribal governments have not wholly addressed the issue.
13' Felix S. Cohen, 'Ifndian Self- Governiment, The American Indian (1949). "It was not only Franklin and Jefferson who went to school with Indian teachers like the Iroquois statesman Canasatego, to learn the ways of federal union and democracy. It was no less the great political thinkers of Europe, in the years following the discovery of the new world who undermined ancient dogmfis when they saw spread before them on the pantheon of the Western Hemisphere new societies in which liberty, equality and fraternity wer- more perfectly realized than they were realized in contemporary European societies in which governmen t drew ibs just powers from the consent of the governed."1 pp. 305-306.
1. INDIANS5 AS ADVISORS
Sernments and tribal leaders have been permitted to play
e national government's policy and program activities as
Iout authority." The process of selecting Indian ad
.often included a method of appointment by tribal ofcials or government officials rather than an Indian elective method.
T d the non-elective character of the advisor Indians
havetendd to offer their elected tribal officials for appointment to a i board or committee. In the absence of 'kied elected
-c aion-elected "expert" in a technical field is offered.
of how Indians become "advisors" on matters affecting Sdian people is the National Council on Indian OppoxI) .CO While there are numerous other boards, committees
n created by the national government to "n the Indian
l,10 is especially instructive because of the level of gov eit advises and the classic methods of operation which chara z limited nature of the role of Indians as advisors.
Tnal Council on Indian Opportity was created by Execu Oer during the Johnson administration to coordinate federal authorized to serve federally recognized tribes. The structure
of ttion included four parts: the Vice President and his oal staff; the Indian members; representatives of federl
c and the Council's staff. Each organizational unit tended to
son a separate part, with the Council staff acting as a sort of
l between the other three parts. During the Johnson years of
N 10, the Indian members of the Council wcJected and appointed hb of experience and their representing of Indian interests.
D i e Nixon years the Indian members were selected and appthe basis of their loyalty to the Nixon administration's
g n objectives.
'the Council's divided structure and its vulnerability to partuence, the staff and the Indian members did consider themadvocates for Indian people and a clearing house on iion regarding federal agencies. At times, the Indian members ato secure program or policy changes, though these efforts
t always successful.
Sdian members of the Council under the Johnson administiontinued to serve into the Nixon administration until 1970. Their tenure, they conducted hearings and special research t r ted in a policy recommendation which asserted the need for man participation in the federal government's policy format and program implementation activities. They suggested three m to attain this goal: (1) appointment of special assistants to
t r etay for each department represented in NOIO; (2) establ of Indian desks; (3) the provision of direct funding to tribal
Tefrceful statement delivered by Indian members at the January Suncil meeting was credited with be th origin of President
Nio's July 8, 1970 message to Congress on Iian affairs. After the appintentof new Indian Council members, hr was only one full 34 ro a pei records survey and ineviw conuctd y the Takorce on Federal Aftnisrt
Council meeting called by Vice President Agnew for the purpose of' introducincr the Indian members to representatives of a number of large companies. NCIO's records show that after 1971, the Council's effectiveness seemed to fade as it narrowed its scope to economic.development issues and as it limited its dealings with the Indian community to elected tribal council officials from federally recognized tribes.
Outside of the effect on the Presidential message to Congress and the creation of Indian desks, other attempts by the Indian members. to effect changes had little impact. Cabinet departments did not respond with alacrity to the Indian members' recommendations or demands. For the most part, top-level people in the departments had no contact with NCIO and other lower-level people who did have. contact, lacked authority to respond to NCIO in a meaningful way. Because there was no specific requirement that the Vice President, actively advance the positions of the Indian members, the only source of the Indian advisory powers would be sporadically used. The consequence of this was that when the Vice President chose to act, the Indian -views would receive attention. When the Vice President chose not to act or simply lost interest, the Indian views would be ignored. The latter case proved to be the rule and not the exception.
The NCIO pattern is consistent with any advisory group experience. An advisory group must depend on the good will and cooperation of those who "11ve control. If the powerful choose not to take advice, then Indian advisors go unheard.
2. ALTERI-WPwVE INDIAN ELECTIVE STRUCTURES
The notion that there could or should be a national Indian elective, body which represents the interests of Indian nations, tribes and their people in relations with the U.S. is not a new one. Thirty-two, years ago in Denver, Colorado, representatives of 50 Indian nation& met together for just that purpose. The result of those formative. efforts was the creation of the National Congress of American Indians, which today includes a membership of over one hundred Indian nations. Despite its substantial successes since 1944, the NCAI has, never had as its membership all Indian nations and tribes, nor ha& it functioned with the direct participation of the majority of individual tribal members. Though the Indian Congress has a membership of perhaps 5,000 individual Indians in addition to tribal governments, it can hardly be said to represent each individual. It is, however, clearly the only successful national constituent Indian organization.
The National Congress of American Indians is by no means the only national Indian organization. Many others of a specialty or professional nature have either "spun off" of the Indian Congress or developed on their own in answer to a specialized need. Among these national organizations are the National Indian Youth Council,, National Tribal Cbairmen's Association, American Indian Movement, National Indian Education Association, National Indian Businessmen's Association, and many others.
But, even with these organizations which serve a narrower constituency than the NCAI, there is no example of an organization with delegates selected, directly by the Indian population to represent their interests in relations with the United States. The closest one,
-canco e n lective and repreetative bodylis, of cus, the
Som wold rgu that at least since 1924 Indians haehad the
frachsetoelect Cnrssmen and Senators as well as the Presdet
0neonl ned oo more carefully at the location of the Indian poplaton o ee~ that Indians can have a slight eect on an ecton
(wih te pssile exception of the Navajo Tribe), butthyaeasl
forgtteafer4he election. The plain reality is, as dsrbdearlier in tis haperIndian nations and tribes do~ not have a clearly deind oltialstatus in the United States and their popuain are
toodis~eredto have direct representation in the natoagven
ment Theresult is that theU..lgsaeanadistrth
affir ofInians without their official repreetation.
quetio oftrial political status and national Indian elective bodies
altrntivs.Their conclusions were as follows:
1.Iti n tliialy feaibe to cret a national Ininelective
boy t heprset; but it may befasile in thNuuei h ujc
ishoouglydicussed through Indian Coutry and the~ United
Staesprvies economic astac to trien n ain ofcltt
2.Thr aenflyeta eral fasible altrives for ntoa
an tibs.Amn these are:
hicuds woSeators and three or more Represnatives elece by
Indan t rpresent Indians in the U.S. Cnrs. Direct election ,ofan ndan Congressional delegation would rqiea mnmn toteUS Constitution and a formal introduction of Indian Country
intothe nionas a state with a form of gvrmn o nieta
oftheothr states. The trust relationship would have to be substanialy mdified. This option has been considered in the past by
theDelwarsCherokee of Oklahoma a~nd the Navajo--aa inl
Indin tibesandnot as multiple tribes.
Unin o Indian, Nations.-This apprach would etbiha
Indanleisative body~ with tribal delegtions from each Indian
natin o trbe elected by pojpularvt mn h dl ouain
Theeleteddelegates would be directly accountable to the Indian co~~ $itecy ach tribal government may rsvethe right to ratify acton taenby its elected delegation or actions taken by the Union of Ind a atons. The Umion ofIndian Ntoswould serve as the
eletedIndan voice which works directly with theCogesith
deveopmet of Indian policy. Individual tribes, would natual
haveunimeddaccess to Congress. Te Union of Ida ain
woul reqireformal ratification by cold e etablished. Financial support wudb rvddb h
dirctelction by the Indian populationadapitetb h
Preidet, the Indian Board would define ..plc oadIda $&Works hopon Idin Legislative Tngtitutions, WasigoDCFbur 41,96
"Tis. ocp a fis o nsiee In a ston u p fpr etile "D~eclartion of Svdgty" In 1974 by
nations; and oversee and coordinate the program activities -of federal. agencies as they relate to Indian interests. .As a guide to the establishment of any Indian elective body, the following objectives were thought to be controlling:
L. Provide real Indian input into the budgetary process taking.
place in both the legislative and executive branches of the U.S., Government.-This would include program definition, line item control and development of rules and regulations for the administration. This system would have to provide a.door to Congress which would insure participation in the initial stages of legislation. It must have an ongoing mechanism which would watchdog and thereby prevent unilateral Executive action which
alters legislative intent.
II. Provide a constant review of the activities of the executive and
legislative branches.-The intent is to identify areas where the Executive Branch changes the intent of Congress, to make Congress aware of these inconsistencies and to take follow-up
actions to correct them.
III. Provide accountability of th-e United States to tribes and trib al
representatives to their people.
IV. Provide a method for enhancing tribal self-government and
-strengthening the trust responsibility of the United States Government.
The workshop on Indian Legislative Institutions concluded its review with the consensus being that such a review can only be considered an academic exercise since the feasibility of any concept of Indian elective bodies can only be determined by tribal governments, and the Indian people as a whole. Any other~'conclusions, it was thought, would violate the rights of Indian people to determine their own form of government through a process that permits full and complete participation.
3. CONGRESSIONAL ORGANIZATION AND THE POLICY PROCESS 37
The Congress of the United States, because of the authority it draws from the Constitution,3 occupies a most important position in Indian affairs. The functions of Congress are of paramount importance to the future of the Indian people since all legislation presented to 'and enacted by this branch of the national government vitally affects the lives of each member of every Indian nation or tribe.
From the beginning of the 94th Congress to the middle of 1976, more than 300 pieces of legislation were introduced specifically dealing with Indians in some manner.39 In addition to these legislative actions, there are numerous general bills which would govern all citizens if enacted but may possibly affect Indians in undesired and undesirable Ways.
Little actual review of these legislative proposals is made from the tribal perspective, taking into account the unique -relationship between Indians and the United States, the form of their tribal structure or their special needs. Sometimes one or two lines including or excluding SPrimarily from a study conducted by Dick Sbipman, AI1PRO Research Staff for Task Force 0. Artcl 111, Section 8, Clause 3.
"U.S. Senate Library, Bill status computer system.
Indian nations or Alaska villages from a particular measure could avoid months of difficulties with the administering agencies or in the courts. A good example of this is the recent amendment to the Freedom
of Information Act.'10
-The Congress felt that if the private citizen was allowed more
accessibility r to governmental agency records, democracy would be served. Trial governments and the Bureau of Indian Affairs felt the law, as written, was detrimental to the private rights of Indians. The law permitted confidential records containing descriptions of minerals I and water resources on Indian lands to be opened to the inspection Df
Oil, coal -and other commercial interests. This gave commercial developers, a competitive advantage, so some tribes and BIA officials contended. If exceptions to the Act had included considerations of the 8pecial rights of Indian nations and tribes, detrimental effects on the lives and resources of Indian nations could have been avoided.
Further, tribal manpower time and financial resources spent trying to resolve the issue through additional legislation or even law suits
could have been avoided.
Indiah nations do not have the capability either singly or collectively to monitor all Indian-related legislation. The BIA monitors.
the Bureau's legislative program and legislation which affects particular tribes." But, even with this, it is impossible to initiate action
to influence the content of all legislation.
It is unreasonable to expect all existing legislative committees to
have a specialist in Indian affairs hired to review legislation referred to that committee. A day-to-day monitoring and analysis of legislation is necessary before legislative proposals become law. This is to insure that the status of tribal governing bodies, programs, and Indian
rights-are not violated by the, passage of laws by Congress.
It is the function of Congress to set Indian affairs policy, not only
by developing legislation to solve new (or old) problems, but reviewing ongoing programs and setting their levels of appropriations. Therefore, a similar but second dimension to the problem of monitoring the volume of Indian legislation is the problem of dispersal of Indian legislation to numerous committees in the Congress. These committees may or may I not have specialists who understand Indian communities and Indian law. This has resulted in programs serving Indians being dispersed by statute throughout the federal bureaucracy for implementation. Tbe'Bureau of Indian Affairs is no longer -the sole federal program participant. Therefore, the Congressional committee counterparts to these agencies axe similarly dispersed on Capitol Hill, lessening the effectiveness of the oversight function of Congress in Indian affairs and hampering a unified or overall Congressional policy
in this area.
The following chart illustrates the array of major Indian programs
or Executive Branch offices that exist and which Congressional committees have legislative and appropriations authority over them.
Note that the House Interior Committee has oversight authority for aU Indian programs whether under its legislative authority or
not, a step the Senate has not taken.
However, Senate committee legislative jurisdictions are very similar(See figure 1.)
it P.L. 93-M (5 U.S.C.A. 552 Rs amended), 1974.
A 13 Bureau of Indian Affairs Manual, 1.1-1.2.
Several problems arise because of this phenomenon. Those bureaus
,or offices administering Indian programs must deal with a Congres.
sional committee which has no particular expertise or knowledge in
Indian aff airs with the exception of the respective Interior committees.
'The Indian public has a similar problem attempting to get its views
known on particular programs, not. only because of lack of understanding of Indian law by committee members and staff, but also
because of the competition with other issues within that committee.
Therefore, the plea for a special provision or the consideration of a
particular Indian program may be diluted substantially by the ignorance or lack of consideration by those at the committee level.
FIG6 I.-HOUSE COMMITTEE JURISDICTION
Legislative Special Aptropriations.
Program authority oversight I Su Committee
Farm and Home Administration --------------------- Agriculture ------- I interior ---------- Agriculture and
Food and Nutrition Service ----------------_----------- do ---------------- do ----------- Do.
Forestry Incentive Program ----------------------------- do ---------------- do ----------- Do.
Rurat Housing ----------------------------------------- do ---------------- do ----------- Do.
Health, Education, and Welfare:
Indian Health Service ------------------------------ Education and ------------------ Interior and
Labor.2 related agencies,
Indian Sanitation Facilities ------------------------------ do ---------------- do ----------- Do.
National Institute on Alcohol Abuse and Alcoholism -------- do ---------------- do ----------- Do.
ONAP --------------------------------------- -------- do ---------------- do ----------- Do.
Office of Education (I EA) (title IV) ------------------------ do ---------------- do ----------- Do.
'Department of Trartspxtation Federal Highway Adminis- Public Works ---------- do ----------- Transportabon.
Business Administration ------------------------- Small Business --------- do ----------- State, Justim
Economic Development Administration -------------- Banking, Currency Interior ---------- State, Justice,
and Housing. Commerce and
Office of Minority Business Enterprises ------------------- do --------------- dd__ ------- Do.
H0, and Urban Development:
using and Community Development Act ----------------- do -------- ----------- HUD and independent
Bureau of Indian Affairs --------------------------- Interior and in ----- do ----------- interior and
sular Affairs. related
JOM --------------------------------------------- Education and -----do ----------- Do.
Bureau of Land Management ----------------------- Interior and In ----- do ----------- Do.
Alaskan Natives Claims Settlement Act ------------------- do ---------------- do ----------- Do.
Indian Claims Commission ------------------------------ do ---------------- do ----------- Do.
Law Enforcement Assistance Administration ---------- Judiciary -------------- do ----------- State, Justice,
Office of Indian Rights ----------------------------------- do--. ------------- do ----------- Do.
CETA ---------------------------------------- ---- Education and ------------------ Labor and Health.
Labor. Education, and
t All committees with lzislative jurisdiction over a particular program also have oversight jurisdiction. I Some Indian health bi s are concurrently referred to the Interior and Insular Affairs Committee.
It is not surprising that those programs benefitting American
Indians which are only a part of a larger program available to all
citizens will receive the attention of the particular committee overseeing that particular agency or program. For example, within the
Farmers Home Administration of the Department of Agriculture. is the
Indian Land Acquisition Loan Program, as well as other programs
open to all rural citizens, including Indians.
proerl orhas the proper funding, are all questin hc Mb
Ua 'r -ayu wae reexingtiese of proan ffar rtetmn
On~~1 rtwprhnteepertyisersymath j comtte o bam aA ta cncrnngtirparticula 1,sltie atort sol
not~ ~~u bevoiyl avie.Bt agin some systm shul e fof
depnclupn~pivae ndin dvoacygrupsan te adiisratve 49eoie ogstudy t~ehe mlcos Repres tentia aifakens of toY others.te lror
Congress fels ta t hastaicotinu being roein ueriin h
kap~emenaind eisatn rogamsd n a. The enatefncio
of ongesscariedou'tby ts~ comttes ies bth the memes
volad, ebei trohthereprsetivesamtopoqeto
the oporato o o apguyprogrms W hvesenowts fntoi dilute soeht y te ~ispeso.fcmite uidcinoe Indanpeors. hee Hose aoiof epeetiveshastaenlnete
porryes anepreento actvteneagwt Indians adocc gru ."
whc hae, legislative ersathi ovL erie partilar Amea Indian
erment by advocacy groups themselves of various bent who provide to the appropriate committees, input from the clientele of the programs themselves.
Some methods for more effective oversight of Indian programs should be developed in the existing committees or become one of the elements of the creation of a new committee structure.
The political and geographical character of the House and Senate Committees where a large majority of specifically "Indian" legislation is referred for consideration and which overseas the BTA of ten impedes the formation of a truly just and reformative Congressional policy toward Indians.
The largely Western makeup of the membership of the Interior Committees places those Congressional members with the greatest anti-Indian pressure from their non-Indian constituents in the very committee which has life or death power over much major Indian legislation. Problems arise, for example, when a somewhat controversial or innovative proposal is desired by the Indian tribes of a particular area or state, and that state's representative in Congress a-, a member of the Interior Committee, refuses to introduce or sponsor the legislation. No other member of Congress will usually introduce the measure,' even to begin the process of committee consideration or hearings, often because he believes the expertise or interest in such a specific subject should originate from an Interior Commttee member or as a "courtesy" to the member from the area affected.4
So, in effect, the policy of the U.S. toward its Indian citizens is not formed in its important beginning stages by a balanced group of legislators from around the nation. This conflict of interest problem arises less often in the Appropriations Committee because its member-ship is more geographically widespread, although notable exceptions have been documented.4
The problems of conflicts of interest of the Western members of Congress on the Interior Committees, when dealing with Indian affairs, will likely become more critical as important questions on Indian water and mineral rights arise and issues dealing with state jurisdiction over various areas of the Indian community or Indian jurisdiction over non-Indians come to the fore: No structural changes in CongrTess, are going to make these and other issues less controversial, but some observers feel that a hearing of these issues by a committee with a more neutral composition would at least allow the merits of the issues equal footage with purely political and regional partisan considerations.
A special committee of the House of Representatives recommended in 1974 that jurisdiction over basic Indian legislation except Indian education be moved to the House Government Operations Committee, among many other suggestions for jurisdictional changes in House 41 Iarjo interview.
Is During the decade between 193.5 and 194,5, Congressional Appropriations Committee support was generally favorable and consistent for Indian health, education, law and order, and forestry operations. But land purchase and administration appropriations, although authorized, were severely underfunded, partly because Congressmen were unwilling to fund a program which meant competition with local white interests and taking land off local tax rolls. (House Appropriations Subcommittee) Chairman Jed Johnson, Democrat of Oklahoma, led the Subcommittee during the most significant period of restriction of Bureau funds. During this time, he was not only largely responsible for curtailing Indian Bureau appropriations -. but be played the role of a general critic of the Department of the Interior." John Leiper Freem~an. The New Deal for Indians: A study in Bureau-Committee Relations in American Government. Princeton University, 1952 (unpublished dissertation). pp. 444456.
Comitees.4 In the compromise that resulted, however, 1egilative jursdctonwas maintained for Indian legislation in the Itr
Commttee with the exception of Indian education, including BIA..
'adinsteededucation programs, which now resides in the House
Edu atin ad Labor Committee.
A taningcommittee on Indian affairs existed in the House and Sentebefrethe 1946 Reorganization Act. Some people believe that such commttee~ with legislative authority apart from the Interior Commiteeswould allow for a consolidation of most Indian program -cosieraios by one unified committee. One problem. with this idea is tapaicipation in such a committee could be less tan enthusiastesicemost members of Congress usually try to obtain committee assgnmntswith major interests of their constituency or one giving
them chace for an influential position.,
4. ICRNEIA'?S EVOLVING POLITICAL STATUS: AN EXAMPLE FOR INDIAN/U.S. RELATIONS? '4
TheDepa ttof the Interior, chare with admnistrn the
trust ~ repniilit~y for Indians, became the trustee for anter spca
grop, he icrnesans in1951. A Comparison of the manner in whichi
thee to tustrelationships have been approached by the Departmen poviesa revealing commentary on the probles of fulflling thetrut. hiscomparison is not accidental; it was suggested by the strn nuber of parallels in the problems of the two ~peoples and byte attempts of both groups to make the trust work for them rather tha aainst them. But the question may be asked: Assuming that thecirumtances are essentially identical, how does a description or poofof this relate specifically to a better understanding of the trut eltionship toward American Indians? Hlow may it be used to
imrve that relationship?
Froe thing, the demonstration of the similarity will serve to strnte the criticisms or general remarks about the administration of tetrust toward Indians. That is, it will make some of the basic
eror udh as the substitution of an immense bureaucracy in place
of aheathy local economy, stand out more clearly. In this respect,
the conmiclly destructive policies pursued in the name of the trust in Micronesia should be of special interest to American Indians in
ther efots to improve the indecisive or damaging features of Indian
Teeis another aspect in which the comparison will be useful in relaio to the Indian trust responsibility: the Micronesians have bee evolved for six years now in a discussion of their future political stts These negotiations have resembled an international forum
weecrucial issues such as local versus departmental sovereignty ove te land in Micronesia have been debated intensely. The dissenionwithin Micronesia concerning the general struggle for soveriny, the toughness of the Micronesian stance, and the capitulatio advantage contained in the recent compact between the
41US os of Rep. seet Comm. on Committe. Committee Reform Amiendment; of 1974; Report, to ccmpnyH. Res. 988, Washington, U.S. Govt. Printing Ome.m 1974. (3 Cog. 2d Ses Report48 secalanalysis prepared by Dennis Cairrofl, A] P RCO pea Staf for Task Forc #3. (See appendix
United States and the Mariana Islands (a district of Micronesia), reflect a sustained attempt to develop a new relationship that benefits the smaller groi p as much as the sovereign.
The manner in which the Microensians have pushed for greater local sovereignty while retaining the protection and assistance of the U.S. may well serve as a model for the same trend in Indian Affairs. In general, the Micronesians, confronted by many of the same problems of federal administration as the Indians, have searched for a solution in much the same direction as the Indians: the attempt to diminish the power of the Interior Department through the development of local government.
To summarize this chapter, it appears that many alternatives e3ist to form an elective body for achieving the objectives of PL 93580, which provided for this study. It is our opinion that because the legal or 011tical status of tribes today, as discussed herein, is not settled, t9e tribal governments are reluctant to release what authority they now have or to permit it to be further undermined; that a voluntary intertribal affiliations method is growing; and there is doubt of the sincerity of the federal government to provide an indefinite status without termination. Tribes could assume that benefits would accrue if PL 93-580 Studies result in Congress improving its record and allowing stronger a location of Self Determination and Self Government, requinng Yep Executive and Judicial Branches to provide the highest degree of Trusteeship in a manner agreeable to the Indian People.
Blut oeph AHisorialSketch of the Formation of the ConfedeayPriual
Govenmen OvrInianTribes and the Pu~blic Territory. New York, Geo.
I Idin i Wit Amria.Washnn D.C. New Community PesWorld
Cohen,~~~~ Fei?.Hndoko ederal Indian Law. Albuquerquie, N. Meldco.
Colier Jhn.Indan ofth Amercas The7 Log Hope. Ne ork, New York. Fawett J.E. Te aw of nations. New York, New York. Basic Bos n. Fey Hrol E an DArcy McNiokle. Indan and Other AeiasToWy Matonsin mercanGovenent. Ann Arbor,MihXrxUvest
Insitue fr te eveopment of Indian Law Indiasan 8tegy W..Gvret
tanisSams. he dmnisrtive Process. New Hven, Conn. Yale Uiesty M= V ~ret.Te mria Indin:ARingEhc Foc. e York, AmercanForegnolicy. Wash$igoDC angeEdwetfrItr
Scheckbie, LureceF. The Office otninAfir;IsHsorAtvte
and rgaizaion. Bltiore, Md. TheJonH iwPes197
SugonDanel Th Amricn evolution~ Jo 80.e Yok Ne ok.Afe
A. nofIn.,194.UlqTULISuHE 1)oumX~r
U.S, epatmntof the Interior, Bureau of IdaAfairs. Are Ofie0 oraia ,ton Pogam Planninzg and Management by Ojcie.Lte rmHre
Lieof Authority, Sept. 9, 1970'.
U.S. epartent of the Interior, Bureau of India fars eealtutrepni
bltefo of aigIda oetswt onsadathrte nspot
MemofromWiliam eede, Spt. 9 968
U.S. Department of the Interior, Office of the Secretary. Coordination and
accountability of departmental policy pronouncements. Memo from Under
Secretary. Jan. 7, 1976.
U.S. Department of the Interior, Office of the Solicitor. Definition of "Indian"
fo~r preference eligibility. Memo from Reid Chambers, April, 1975.
U.S. Department of the Interior, Office of the Solicitor. Definition of the Department's trust responsibility to the Indians. Memo from the Solicitor, January,
U.S. Department of the Interior, Bureau of Indian Affairs. Development of a
programmatic definition of Indian self-determination. Letter from Commissioner Thompson, Jan. 27, 1975.
U.S. Department of the Interior, Office of the Secretary. Western Federal Regional
Council Work Plan for 1976. Memo from Webster Otis, Dec. 4, 1975.
U.S. Department of the Interior, Bureau of Indian Affairs. Consolidated report on
legislative recommendations and remedies gathered from Indian people during
Oct.-Dec. 1966. Letter from Robert L. Bennett, March 21, 1967.
U.S. Department of the Interior, Bureau of Indian Affairs. Letter discussing the
inability of Agency offices arid Area Offices to administratively handle Indian
issues due to lack of authority. Letter from Bud Lazore, April 6, 1976.
U.S. Department of the Interior, Bureau of Indian Affairs. 19715 Range ReportWestern Nevada Agency. Transmitted to Task Force #3 from Robert L.
Hunter, March 22, 1976.
U.S. Department of the Interior, Bureau of Indian Affairs. Indian Preference
Policy. Memo from Commissioner Thompson, July 11, 1975.
U.S. Department of the Interior, Bureau of Indian Affairs. Summary report on
Commissioner Bennett's March 21, 1967 proposed recommendations to tribal
groups. Letter-from Commissioner Thompson to A.I.P. R. C., June 21, 1976.
U.S. Department of the Treasury. Indian taxation. Letter from John S. Nolan,
July 14, 1970.
U.S. Housing and Urban Development. First report of Task Force on Indiani
program. Memo from Reaves Nahwooksy and William Hallett, Nov. 6, 1975.
U.S. Department of Health, Education and Welfare (Social Security Administration). Regional Commissioners Bulletin; Social Security services to American
Indians. Aug. 15, 1975, No. 23.
Executive Office 'of the President, Office of Management and Budget. Consultation with heads of State and local governments in development of Federal
regulations. Memo from Director, George P. Schultz, Jan. 20, 197 1.
National Congress of American Indians. Justice Department's handling of Indian
cases (Arizona v. California, Confederated Tribes v. Walton, et al.). Letter from
Mel Tonasket, Sept. 15, 1975.
Confederated Tribes and Bands of Yakima Indian Nation. Fifty Years of Broken
Promises. Memo from Roger Jim, Jan. 23, 1976.
U.S. Department of the Interior, Bureau of Indian Affairs. Title of the Quechan
Tribe in the Yuma Indian Reservation, San Diego County, California. Memo
from William Veeder, April 15, 1970.
U.S. Department :t of the Interior, Office of the Solicitor. Quechan title to 25,000
acres of land relinquished in 1893. Letter from H. Gregory Austin, February 2,
Law Office of Raymond C. Simpson, Quechan Title Question. Letter from Raymond C. Simpson, February 3, 1976.
Debevoise & Lieberman. Quechan land title dispute. Letter from Jerome C.
Muys, Counsel for, The Metropolitan Water District of Southern California,
Jan. 22, 1976.
W. S. Gookin & Associates (Engineers, Hydrologists, Planners, Surveyors).
Problems of waste in the Imperial Valley. Letter from W. S. Gookin and W.
Scudder Gookin, March 8, 1976.
Wilson Cragun & Barker Law Offices. BIA Land Management Activitie's in
South Dakota Criticized. General Memorandum No. 75-49. August 22, 1975.
Quechan Tribal Council. A Statement of Facts and a Plea for Just Consideration
for the Quechan Indians in the Fort Yuma Indian Reservation. July 14, 1975.
Lower Brule Sioux Tribe. Oahe Irrigation Project, its affects on the Tribe. Letter
from MAichael Jandreaui-Tribal Chairman, April 9, 1976.
U.S. Department of the Interior, Bureau of Indian Affairs. FY 1976 Band Anslysis Instructions. M. emo-1 from Commissioner Thompson, Feb. 4, 1974.
U.S. Department of the Interior, Bureau of Indian Affairs. FY 75 Secretarial
Objectives. Memo from Commissioner Thompson, March 12, 1974.
U.S. Department of the Interior, Office of the Secretary. Secretarial Issue Paper,
Bureau of Indian Affairs. Memo from Royston C. Hughes, July 3, 1974.
Depatmen ofthe Interior Office of the Secretary. Prelmnr Injunction
Issed n Bacbird Bend 6ase. For Release June 10, 1975. sW
QuehanTrie.Quechan boundary matter-call for oversight hearing by Senate Subommttee on Indian Affairs. Elmer Savilla, Tribal Chairman, March 10,
Ca~e,.Sa. Interview by Rudy Ryser, Task Force #3, A.I.P.R.C. Portland, Oregn. Nv., 1975.
Clea Jim(Jusice Dept.). Interview by Rudy Ryser, Task Force #3, A.ILP.R.C.
WashigtonD.C. Jan. 15, 1976.
Flit Mles(Jstice Dept.). Interview by Rudy Ryser, Task Force #3, A.J.P.R.C.
Washngto, D.C. Jan. 13, 1976.
Livigsto BobInterview by Rudy Ryser, Task Force #3, A.I.P.R.C. Portland, Oreon. 4v.'15, 1975
Palme Alan(Sol'icitor's Office). Interview by Rudy Ryser, Task Force #3,
A.IP.RC.Washington, D.C. Jan. 20, 1978.
PirleRobrt Interview by Rudy Ryser, Task Force #3, A.I.P.R.C. Portland,
Oregn. ov.14, 1975.
Walker ans (Solicitor's Office). Interview by Rudy Ryser, Task Force #3,
A.KR.. Washington, D.C. Jan. 15, 1976.
Abereen reaTribal Charmen. Position Paper on B.I.A. Reduction in Force.
Ameicn Idin Chicago Conference. The Voice of the American IndianDecaraionof Indian Purpose, University of Chicago. June 13-20, 1961.
ChigoRobrtK. Paper on energy resource development and the leasing of .Inianlans.Native American Studies- University of Utah. Transmitted
to EnieSteens, A.I.P.R.C. March 12, 1976.
Fune, arlA. Thiesis-Indian Self Determination Through Education and
EmplomentPreference. Who is an Indian for Purposes of Johnson O'Malley EduatinalAssistance. Who is an Indiani for Purposes of Preference under the
Indan organization Act. May 1, 1975.
HanenKenethC. Federal Recognition of Indian Tribes and Bads. Feb. 1976. Hopkns A A.Indians, allotted living off-reservations, especially Oklahoma; andt~eFedralGeneral Indian Allotment Act of Feb. 8, 1887 (24 Stat. L.,
388 as amne. Dec. 12, 1975.
Isral, Dnie H. The Reemergence of Tribal Nationalism, Native American
Joseph Gene1. Legislative Proposal for the Creation of an Independent Bureau
of ndin Afars. Submitted for the Legislative Process Seminar, Antioch
Scolof Law. Dec. 31, 1974.
Mc~i~eD'Ary. What is an Indian Tribe? Who is an Indian? Jan. 15, 1976. Tayor i:ec.implementation of the Boldt Decision in U.S. vs. Washingtons.
The ScondInternational Indian Treaty Conference, Red Paper. Yankton Lkta (Sioux) Country, S. Dakota. June 13-20, 1970.
Covil Conferderated Tribes Chairman Mel Tonasket to National Water Comnmisin SpokneWash. Jan. 8, 1973.
Migul, atrck.An Account of tihe 1893 Agreement as Related by the Quechan IninEye-wintesses. Written in 1935.
NatinalCongessof American Indians Before Senate Interior & InsularAfar
Comte ~at Confirmation Hearing for Kent Frizzell as Une Secretary of teDepartment of the Interior. Washington, D.C. Oct. 22, 1975. NatinalCongessof American Indians Before Senate Interior & InsularAfar
Commtteeat Confirmation Hearing for Thoa S. Kleppe as Secretary of
Intrir.Sept. 24, 1975.
U.S Dparmet of Justice. John C. Kerney, Deuy Asitant AttmyGnrl CrimnalDivision to Subcommittee on Indian Afar-..Snt.0neig
S.21-Indian Law Enforcement Improvement Act. Mrh5, 1976.
Veeer Wilim.Confiscation of IninWater Righsi the Uppe sor
River Basin. Statement prepared for the Eergy, eerhan ae e
sources Subcommittee-Senate Interior Committee Hearing held July 18, 1975.
The Development of Collier's I.R. A. Policy. Indian Service Policies: Galley 1, 2,
3, 4, .5, 6. Located under 75 56-A-588, 395, 50660-45-120 Federal Arc~hives
and Records Service, Fort Worth, Texas.
U.S. Congress. Senate. Committee on the Judiciary, Subcommittee on Administrative Practices and Procedures. Administrative Practices and Procedures relating to Protection of Indian Natural Resources. 92nd Gong., let Sees.,
Parts 1-7. Washington, U.S. Govt. Print. Off., 1972.
U.S. Congress. Senate. Committee on Interior and Insular Affairs. The Nomination of Dale Kent Frizzell to be Under Secretary of the Interior. 94th Cong.,
1st Sess. Washington, U.S. Govt. Print. Off., 1975.
U.S. Congress. Senate. Committee on Interior and Insular Affairs. S. 2035, a bill
to provide for the creation of the Indian Trust Counsel Authority, and for other purposes. Subcommittee on Indian Affairs, 92nd Cong., 1st Sess. Washington, U.S. Govt. Print. Off., 1972.
U.S. Congress. Senate. Committee on Interior and Insular Affairs, Subcommittee
on Indian Affairs. Realinemnent of the Bureau of Indian Affairs Central Office.
93rd Cong., 1st Sess. Washington, U.S. Govt. Print. Off., 1973.
U.S. Congress. American Indian Policy Review Commission. Task Forces on
Trust Responsibility, Federal Administration, and Jurisdiction. Hearings held
in Yakima, Washington, Feb. 2, 3, 4, 1976. (unpublished transcript).
U.S. Congress. American Indian Policy Review Commission. Task Forces on
Federal Administration, and Jurisdiction. Hearings held in Superior, Wisconsin,
March 19-20, 1976. (unpublished transcript).
U.S. Congress. American Indian Policy Review Commission. Task Forces on
Tribal Government, Federal Administration, and Jurisdiction. Hearings held in Aberdeen, South Dakota, April 15-16, 1976. (unpublished transcript). U.S. Congress. American Indian Policy Review Commission. Task Forces on
Tribal Government, Federal Administration, and Jurisdiction. Hearings held
in Missoula, Montana, April 19, 1976. (unpublished transcript).
U.S. Congress. American Indian Policy Review Commission. Task Force on
Federal Administration and A.I.P.R.C. Commissioners. Hearings held in
Denver, Colorado, May 8-9, 1976. (unpublished transcript).
U.S. Congress. American Indian Policy Review Commission. Task Forces on
Trust Responsibility, Tribal Governrnent, Federal Administration, Jurisdiction, and Law Revision. Hearings held in Oklahoma City, Oklahoma, May 10-11,
1976. (unpublished transcript).
'U.S.* Congress. American Indian Policy Review Commission. Task Forces on
Trust Responsibility, Tribal Government, Federal Administration, Juisdiction, and Law Revision. Hearings held in Muskogee, Oklahoma, May 13-14, 1976.
'U.S. Congress. American Indian Policy Review Commission. Task Forces oni
Federal Administration, and Jurisdiction. Hearings held in Anadarko, Oklahoma, May 14, 1976. (unpublished transcript).
Comptroller General of the U.S. Report to Congress of the U.S. Administration
of Withdrawal Activities by the Bu~reau of Indian Affairs; Department of the
Interior (March 1958). August 1958.
Comptroller General of the U.S. Report to Senator George McGovern, U.S.
-Senate. Land Management Activities on Three Indian Reservations in South
Dakota Can Be Improved. June 4, 19 75.
Comptroller General of the 'U.S. Report to Congress. Improvements Achieved: in
the Management of Supplies by the Bureau of Indian Affairs. Depazxtient of
the Interior. July 31, 1968.
Comptroller General of, the U.S. Report to Senator Paul J. Fannin per his request
of Aug. 22, 1974, Information on Federal Programs Which Benefit American
Indians. Aug. 28, 1975.
Office of Management and Budget. Second Report by Sub-Task Force on Native Self- Determination-Robert Crane, Director. Establishing an Agency for~ Native Affairs: Chronology, Structure and Process, and Key Personnel. March 18, 1971. Office of the Vice President. National Council on Indian Opportunity. A Study of
Federal Indian Domestic Assistance Programs (FIDAP). August 1974.
U.S Comision on Civil Rights. Staff Report toScrtr of Interior (Rogers
Mortn) nd ttoneyGeneral (William Sabe). Reort of Investigation:
Ogal Sou Tib, enra lecio 1974 October 1~974.g
Naie Aerican Technical Assistance Corporation. Study of Statutory
Barirsto Tribal Participation in Fera Domnestic Assistance rgas 96
The atinalTribal Chairmen's Association and the NatioaCngesf
"erj= Idian. Ntional Conference on Inia Waterighs Wahigtn
U.S Cngrss JontEconomic Committee, Sucmiteon Economy in Governmen. Twad Economic Development for Native American Communities.
WiliamH.Veeder-Federal Encroachment on Indian Water Rights and the Imparmet of Reservation Development. Washington, U.S. Govt. Print. Off.,
196. (1stCong. 1st Sees. Joint Committee Print, vol. 2).
ATICOLES IN PERIODICALS, ANNUALS NEWSPAPEUB, EC
Backash imedAt Indians. Yakima Valley Republic. Feb. 25, 1976.
Hannla, on. Supreme Court Ruling: Indians Win Round in Cigaret Fight.
Seatle Tmes April 24, 1973.
Josph, J.,Alvin M. Indians and Environmentalists. The New York Times.
Josph J.,Alvin M. Wounded Knee and All That-What the Indian Want.
The RewYork Times. March 18, 1973.
MeaorMith.Fishing Expedition: BIA Area Director Answers Criticism. The
AnaaroOklahoma, Daily News. May 16, 1976.
Jame DeiesClaims Made by Dismissed Worker. The Anadarko, Oklahoma,
Daiy Nws.June 8, 1976.
Min, PtsyT. A Call for Self- Government: 'Idyllic' Islands and the Interests
of Suerpwer. L. A. Times. May 3, 1976.
Rich Spnce. Marianas Acquisition is Voted. Washington Post, Feb. 25, 1976.
Ridgway Jaes.The Battle for Lame Deer. Penthouse. Nov. 1975.
Waug, Jck.A Matter of Jurisdiction: Leased Indian Land in Legal Dispute.
Tacoma ews Tribune. Nov. 12, 1972.
LAW REVIEW ARTICLES
BasRussel L. and 3. Youngblood Henderson. Tribal Administration of Natural
ResorceDevelopment. Reprinted from North Daikota Law Review, Vol. 62,
No ,Winter 1975. Copyright 1976.
Cohn, elx S. The Erosion of Indian Rights, 1950-1953; A Case Study in Bureaucrc.62 Yale Law Journal, 348 (1953).
Veee, William H. Indian Water Rights in the Upper Missouri River Basin.
Rpited from North Dakota Law Review, Vol. 48, No. 4, Summer 1972.
Veee, Wilam H. Indian Prior and Paramount Rights Versus State Rits.
Rpited from North Dakota Law Review, Vol. 51, No. 1, Fall 1974. Copyright1975.FEDERAL REGISTER
Depatmet of Housing and Urban Development. Housing Assistance Payments
ProgamsExisting Housing; Proposed Policies and Procedures. March 8, 1976.
FdrlRegister Vol. 41, No. 47, Tuesday-March 9, 1976.
Spee Court of the United States. Syllabus-Colorado River Water ConservatinDistrict, et al. v. United States. March 24, 1976. trCn
Spee Court of the United States. Opinion-Colorado River WaeCo.
sevtion District, et al. v. United States; Mary Akin, et al. v. United States.
TRIBAL REPORTS To A.I.P.R.C.
Walker River Paiute Tribe. A Report to the American Indian Policy Review
Commission. June 18, 1976. Transmitted by Jonathon Hicks, Tribal Chairman.
Bureau of Indian Affairs, Central Office. Report on Personnel Management
Evaluation at Bureau of Indian Affairs, Portland Area Office, Portland, Oregon. Jan. 5-17, 1976.
U.S. Department of- the Interior, Office of Survey and Review-Audit Operation. Audit of Program Agreement No. E00C14200493 With the Central Council of the Tlingit and Haida, Indians for the Supervision of Services Provided by the Juneau Area Office's Southeast Agency Office-Bureau of Indian Affairs,