Report on trust responsibilities and the Federal-Indian relationship, including treaty review, Task Force One ..

MISSING IMAGE

Material Information

Title:
Report on trust responsibilities and the Federal-Indian relationship, including treaty review, Task Force One .. final report
Uncontrolled:
Trust responsibilities and the federal-Indian relationship
Physical Description:
vi, 1, 315 p. : ; 24 cm.
Language:
English
Creator:
United States -- American Indian Policy Review Commission. -- Task Force One
Publisher:
U.S. Govt. Print. Off.
Place of Publication:
Washington
Publication Date:

Subjects

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

Notes

Bibliography:
Includes bibliographical references.
Statement of Responsibility:
to the American Indian Policy Review Commission.
General Note:
Reuse of record except for individual research requires license from LexisNexis Academic & Library Solutions.
General Note:
CIS Microfiche Accession Numbers: CIS 77 J892-1
General Note:
At head of title: Committee print.
General Note:
Reuse of record except for individual research requires license from Congressional Information Service, Inc.
General Note:
Spine title: Trust responsibilities and the federal-Indian relationship.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 022411348
oclc - 02841966X
Classification:
lcc - KF49
System ID:
AA00025890:00001

Full Text



F,


'AJ


tl *1
V M,
11 )an" ITM


;Ioz -4ATIONSHIP;
EW







ONSUIPY






414 Ty,






,40






IT. t K A r nr































































# -'aN,



'W Arf 'It








*V
IRg hal.










4 Iv,





[COMMITTEE PRINT]




REPORT
ON
TRSTI RESPONSIBILITIES AND THE
FEDERAL-INDIAN RELATIONSHIP;
INCLUDING TREATY REVIEW


TASK FORCE ONE: TRUST RESPONSIBILITIES
AND THE
FEDERAL-INDIAN RELATIONSHIP;
INCLUDING TREATY REVIEW FINAL REPORT
TO THE
AMERICAN INDIAN POLICY REVIEW COMMISSION










HANK ADAMS, Assiniboine-Sioux, Chairman JOHN ECHOHAWK, Pawnee, Member
DOUG NASH, Nez Perce, Member
KEVIN GOVER, Pawnee-Comanche, Specialist
ROMAN BITSUIE, Researcher


Printed for the use of the American Indian Policy Review Commission

U.S. GOVERNMENT PRINTING OFFICE
78-127 WASHINGTON : 1976

For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. -Price $2.95



































AMERICAN INDIAN POLICY REVIEW COMMISSION
Senator JAMES ABOUREZK, South Dakota, Chairman
Congressman LLOYD MEEDS, Washington, Vice Chairman
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

(II)









LETTERS OF TRANSMITTAL


AMERICAN INDIAN POLICY REVIEW COM~3fISSION,
CONGRESS OF TIHE UNITED STATES, Washington, D.C., July 31, 1976.
Ilon. JAMES ABOUREZK,
U.S. Senate,
Dirksen Building.
lIon. LLOYD MEEDS,
House of Representatives, Rayburn Building, 1ash.ington, D.C.
GENTLEMEN: Transmitted for your review and consideration is the final report of the Task Force on Trust Reponsibility and FederalIndian Relationship, which was completed pursuant to Public Law 93-580. The report was formally submitted to me July 31, 1976.
This task force has submitted a fine report. It should be added that the work was accomplished while returning approximately $20,000 to the Commission.
The quality of the report is a credit to the members of the task force.
Sincerely,
ERNEST L. STEVENS.
Director:

AMERICAN INDIAN POLICY REVIEW Co3IMIssION,
CON GRESS OF THE UNITED STATES.
Waslngton. D.C..] August 1, 1976.
AMERICAN INDIANX POLICY REVIEW COMISSIONx, CONGRESS OF THE UNITED STATES, Wash;ington, D.C.
ITONOP-kBLE CO3MISSIONERS: The Task Force on Trust Responsibilities. Federal-Indian Relations. and Treaty Review herewith presents its final report to the Commission pursuant to Public Law 93-.580.
The Final Report is necessarily incomplete in addressing the issues and problems of the subject matter assigned the Task Force. With respect to particular tribes, reservations, and Indian communities, we have found that frequently very substantial amounts of time and resources have been committed toward the research and presentation of issues and problems, and proposals or solutions for resolving many of the matters of local, inter-community. and national concern. The Task Force report does not approach the quality of much of the work which has already been done by others. However, these efforts have
(1lI)





IV

sel'doiii found alU attentive or resp)onsive auidiencee in thbe vlriouls br'anches of the (Thverinieiit or, they have Iieeii ji-esented to asytn whui has not showni itself able t o handle ra~tional, r'easonale or the most Simpllle, solutions to problems.
The T1ask iForce resp~ectflily requests that its report be sprinted and made, available to the creitera1 Iian1 commifIty and otherintrse parties for their review and consideration.
The Task Force trusts that niucil of the formation herein INill be of assistance in the preparation of your own R1eport to the Congress, .an1d therefore urges your careful cons jderat ion of its (011t(llt.
Respectf ully submitted,
hANK ALDAMS,
Ckajrmi(.Ii.
JToiLN. ICmJoiIAWK,
DOUG NAxSH,
Miemnbers.












C 0 X T E N T S

Page
Letters of transmittal ------------------------------------------------ III
Section Vil
Contains a general surnni.ary of the Task Force work activitie.-;,
personnel, and a narrative of problems and i,-4-4iies identified in the
course of its work. The basic recommendations ind concepts are
discussed.
Section :33
This Section relates Indian population distributions, and tribal
land and economic resources, to other populations of the United States in their econornic development strata. Future public policy philosophies are discussed in the context of inter-relationships between Indians and other populations, and from the standpoint of comparisons
in federal budgetary commitments.
Section 47
This Section contains diverse current views on the origin and nature
of the federal trust responsibility to Indians, together with historical determinations of these issues. Concurs with the concept of broad, literal trusteeship that is personal in nature and which only secondarily concerns itself with property. Illustrates duties of trustee
in social program obligations.
Section 71
This Section, discusses the continuing debate among competing
interests and influences for controlling the destiny of Indian people.
A range of historically different ideas and philosophies are represented in this summary which shows that even when Indian people were not involved, the tribes were the sure losers in these debates on the
consequent exercise of government powers.
Section 5 --------------------------------------- 87
This Section presents a general history of the origin-, and application
of Federal-Indian Law: its international and European, or colonial, roots; the basic state of the law relatin-l, to Indians at the time of American Independence, and as determined in the early judicial decisions; and the periods of national expansion into Spanish, French,
Mexican, and Russian territories.
Section 6 --------------------------------------------------------- 139
Oklahoma report by Kevin Gover. An indexed report on Oklahoma on Task Force issues, with particular recommendations.
Section 173
Analysis of Trust Law by Doug Nash and John Echohawk. This
Section contains brief statements on the general status of current treaty law and problems revolving around the application of trust responsibilities. An analysis of private trust law as a guide for understanding and applying trust concepts in Federal Indian Law is provided.
Section 8 ------------------------------------------------------------ 203
A general study by Roman Bitsuie of water resources use development in the Southwest affecting Indian rights. Looks primarily to influences of federal agencies, state and local interests, and congressional actions, as determinants of water use and development policy
which has disregarded or sacrificed Indian interests and waters.
(V)






VI

Page
Section 227
131A Forestry Report & Survey Responses. Forestry submiittal shows-z
hazards of trying to do a proper professional job) in the BIA to act on major recognized problems. Bureau of Indian Affairs documents, excluding confidenti-al information excised, variously show: (1) economic losses to Indian communities from forests and agriculture lands; (2) the inequities in resources distribution among Indian populations; (3) differences between reservations and agencies in data collection and records keeping; (4) disregard of federal regulations in trust administration; and (5) the irrationality of any land-based eligibility policies in serving Indian populations of landless generations, and residency patterns unrelated to allotted trust lands.
Section 10 -------------------------------------------------------- 285
Contains Task Force report and unanswered inquiry information
relating to the Interior Department. Also has Marlon Brando state-.
ment.




























SECTION I
SUMMARY REPORT AND RECOMMENDATIONS



















Digitized by the Internet Archive
in 2013













http://archive.org/detaiIs/trustresOOunit











SUMMARY REPORT ANDRii,comMENDATIONS
1. INTRODUCTION
This Section contains a summary report of Task Force findings and conclusions, together with its major recommendations regarding the, conduct of national Indian policy, programming, and relations. It may be noted that most sections of the Task Force Final Report do not carry explicit conclusions, and generally are informational and educational in character. Regrettably, time and other factors limited the Task Force from completing its work objectives, and from fully utilizing the massive amounts of current data or much information from the past few decades. In presenting recommendations in this Section, reliance is often placed on such information that is not reflected in the body of the Report.
2. OMISSIONS
Notably omitted from the Final Report of the Task Force are the ease studies relating to Forest Resources Management, 'Treaty Fishing and Hunting Rights, Water Rights Protection, Indian Nontaxability and Trade Rights, and Indian Claims Settlement Processes. In some of their forms or applications, these several subjects have been dealt with in some degree by other Task Forces. Yet, they were primary work objectives of Task Force One. A few of the subjects were reserved from final report writing for purposes of including requested information and statements from federal agencies. The Task Force chairman expects to complete reports on case studies delayed on those grounds for submittal to the Commission in the near future. If the time constraints of the Commission itself preclude late submittal, the reports could readily be transmitted through some other forum. Some references to these issues will be included in this summary in any case.
3. ORGANIZATION Or, SUMMARY REPORT
The general format of this Summary Report and Recommendations will follow a mixed pattern of listing a subject and then stating either the recommendation and its specifies, its rationale or justification, any background information seeming necessary, or other general discussion, in no certain order. The recommendations will be designated as such, although findings and conclusions will generally appear as part of the informational presentations or justifying discussions, if not as recommendations.





2

4. STATE, MENT OF PRIORITY RECOMMENDATIONS
This summary is generally confined to recommendations of major priority, and no fixed order of priorities is set. While national policy principles and objectives are recommended, for instance, their adoption is meaningless in the context of the failure to establish the governmental framework essential to their fulfillment, or in the absence of a national commitment to make them work.
It is concluded that the national trusteeship to Indian people cannot be satisfied under the present system within the Interior Department, and creation of a new independent agency is recommended. However, different methods of addressing iDroblems and issues of Indian interests are required. It frequentAy. is not those problems which might be characterized as being "monumental" in their scope that require priority concern in the lives of many Indian people, but rather a complex of incessant minor deprivations and unnecessary injuries that do not attract the attention of officials with the power to eliminate these burdens altogether; they often are the same persons who mindlessly impose them.
5. SUBJECT: GENEILkL INDIAN POLICY PRINCIPLES A.ND OBJECTIVES
Recommendations
Task Force One recommends that the United States recognize the following principles, objectives, and understandings, as the foundation, and as imperatives, of the modern and f uture national Indian policy:
(1) Indian people possess an inalienable right to maintain an independent societal, and distinct tribal community, existence within the American system.
(2) The rights of Indian tribes and Alaskan Natives to a secure political existence as self-governing communities of a distinct political and societal character shall be guaranteed the promise of permanence, and shall not be denied, in the life of the United States of America.
(3) The dependency and trustee relationship between the United States and Indian tribes was not to be one of governance and plenary control over Indian existence, but was to be, and still should be, one of protection against injuries and losses to the Indian people, and one of material and economic assistance to the tribes as a matter of mutual advantage and advancement.
(4) From its formative stages, and until a relatively recent date, relationships between the United States (including its European and colonial predecessors) and the several Indian tribes were founded upon a mutuality of rights and a mutuality of interests, common to all mankind and to all the world's nations. Treaties were a measure of those rights and of Indian sovereignty, but treaties also were the contract form by which Indian rights might be altered; some were to be diminished, while the remainder were to be protected by the superior power which came to the United States. The contracting, by treaty and agreements, relied upon the willing, or otherwise ultimate consent, of the separate natio-nal parties. Indian treaties should not now be changed except through negotiations with the tribal people contracted by the particular 'treaty and with their consent. The principles





3

that are seen employed in international conventions-and in the labor unions' bargaining in this country-should prevail; nanely, seeking a new contract primarily to secure better terms, or to satisfy broader interests of mutual benefit.
(5) National policy should foster commitments desigped to restore the Indian tribes to a level of viable economic independence iii context with the modern national and complex world economy. "Complete economic independence" for the Indian tribes, together with the goal of revitalized and creative self-government and "self -determination,' was the declared national policy in the depths of the great depression; the nation can better afford its requisite commitments now.
(6) As many as half the Presidents of the United States have declared or reiterated a proposition of broad trusteeship over the Indian tribes, partly premised on the doctrine that "in appropriating to ourselves their territories we have brought upon ourselves the obligation of providing them with subsistence" or sustenance in all basic natiiral and national needs. The principles of law adhered to during the entire treaty-making period required that lands should not be taken from the Indian people to the extent that tribes would be left without the resources for their livelihoods and their economic, institutional, and other community needs. In diminishing the capacity of the Indian tribes below that ability to maintain their societal obligations to themselves in providing for the health, education, welfare, and economic advancement of the various communities, the United States became duty bound, upon its own declared premises, to substitute its means and assistances to satisfy that capacity with an equivalency of present and future resources and aid.
(7) Where justice and equity allows a restoration of losses secured by the use of frauds or deceptive treaties, or treaties which gave effect only to the gains of the United States, national consideration should be given toward making concessions which restore the original conditions. Perhaps one reason President Millard Fillmore's reputation has been lost in historical oblivion is that he sought such considerations for the Indian tribes severed from their lands by the unratified treaties of California, Oregon, and Nevada. The Indian land needs in those States, as well as Oklahoma, should be given high priority under any land restoration policies.
6. SUBJECT: CREATION OF A NEW DEPARTMENT OF INDIAN AFFAIRS AS AN
INDEPENDENT AGENCY OF THE UNITED STATES GOVERNMENT
Recommendation
Task Force One recommends that the Bureau of Indian Affairs be replaced by establishment of an independent department of the government to manage the United States' trusteeship, relations, and obligations to Alaskan Natives, Indian Tribes, and related communities in America. The proposed department should have the name, "Department of Indian Relations and Community Reconstruction," and should reflect the following assignments of responsibility and divisions of function:
(1) The Department should be directed jointly, or subject to the joint control, of a presidential cabinet-level Secretary and a full-time Board of Indian Control, consisting of not more than ten Native per-





4

sons. These executive officers would all be appointed by the Presid(lent, with advice and consent of the Senate, for four-year terms. The President should be required to appoint members to the Board from lists of nominations submitted to him for each position by designated Native American constituencies of the Department. The terms of office of the Board of Indian Control should be staggered so that half the Board is subject to appointment every two years.
(2) The new department should contain the following suggest ed Offices or Divisions. The Board of Indian Control might have assigned oversight functions relating to assigned divisions. or exercise similar types of responsibility in both the Central Office and at the community level. ID)ivisions would include:
A. An aiitonomous Commiqssion o/. India., Education, which would be within the D)epartment. but which would be free from routine control aid supervision of the Department. The form of selecting the most d(lesiralble local and national commission would be spelled out in the legislation. Its budget would require evaluation and approval by the I)epartnlent, b)ult planning, amounts requests. and justifications would originate with the Coniunisssion.
B. An IJndian, II.alth Admimnistation of some sort or quality. At iiiinimmi. there should be a health services planning, evaluation, and coordinating unit in the Department. This would exist even with the Indian Ilealth Service remaining within some other agency. Coordination with the planning and construction of Indian housing and related conuninity facilities on long-range and continuous basis would be a priinary benefit.
C. A Yational Indian Houi.sing and Community Fac'lities Const'ruct;ion and Credit Authlority should be established within the proposed Department. One billion dollars should be appropriated into the U.S. Treasury for use as a basic reserve or trust fund to be used within the first ten years of the Construction and Credit Authority. The fund would be used to maximize the availability of outside capital investmnents. as well as to provide a controlled grant fund for Indian comnmunities. Housing, health facilities, and water sources, sewage, and electrical support systems would have primary reliance upon this Authority.
D. The Department should also have an Economic Assistance and Conniu;ty Der elopment Gr'ants and Loans Fund, including Land Purchasing and Community Planning activities. This Fund should also be initiated with a one billion dollar allocation for potential use within the first ten years of the new Department. As would be the case with the Construction and Credit Authority, planned uses of monies could be projected on an annual and multiyear basis for approval by the Congress in appropriating amounts into the Treasury or for obligating funds on both annual or multi-year basis. Economic Developmnent on Indian Reservations, at least. should be planned in the context of the inalienability and nontaxability of Indian properties. The Fund would attempt again to maximize the availability of development capital. Interest payment subsidies and interest payment bonuses, for example, might be allowed for Tribes or other Native interests who invest their cash resources or credit with other Tribes or Reservations without money resources or insufficient monies to take advantage of investment and development opportunities.





5

E. A. similar start-up billion dollar aPI)ropriat iion should he jlade for aR A6'fuW/d hO'Nou,'c jallthemehW ud / PleOpincu f Film7-;illiIlly Land and Resoirces Siirveys and Triansportation SyStemlS-W ichI
would be administered by the DepaIrtnment. 1The allocation sho011ld be made at the beginning of the first ten years of the )Department. The Fund should include 'monies for coo)peratlive I)r )l ms with nonIndian instittiions and organizations, as well as applied and basic research, elatill to nliatuiral resollurces nIllanaigellltont d111 develo)pille'i t. Forest mnanageluent, fisi and wildlife iamnamilemet, wat er 'reSOlIr'S. lan(d 1se p)lal1in", Xnilleral resoresllfC Illtll{rCIlIt, I li t]e like wvold 1)benefit, froIln this fund. Transportation systems filundini wold 1) coordinated with priority community needs identified by depaIrtmenital a111( tribal processes. According to information stubmitted to Congress, the "large integrated corporations with Siulnificant amounts of income from logging, lumber, plywood. pulp, and various paper products" alone are now receiving a collective "tax subl)sidy estiii ualted to reduce Federal revenues by $130 to $140 million per year." Tribes have been paying administrative fees to the U.S. (Governnent for more than 50 years for mismanaging large masses of their natural resources and developmental potential. This Resources -lanagement and Development Fund would provide the Tribes with a variety of intensive resource management tools, management research, and access to conpetent professional expertise from within and without the Indian community-as well as from the well-subsidized private industry.
It is contemplated that the Department could fund either cooperative or independent activities for such organizations as "Trout Unlimited" or Northwest Steelheaders in fish resources production. research, rehabilitation, activities where Indian-related, common, or supplementary resources are involve ed, as well as in the areas of Managemnient Systems development and evaluation. Most natural resources of both economic and aesthetic value of Tribes have been subjected to an unwarranted neglect or disregard under the Department of the Interior.
F. There should also be an Ofce of Trust Responsibilities and Treties Administration in the new Department, which would also house an Indian Legal Services Fund to process grants and loans to Indian tribes, individuals, organizati ons, or con mmunities. This Office would primarily be a legal rights protection and litigation agency. Virtually all litigation and case development functions presently in the Justice Department should be delegated to this Office-with the exception of Indian Claims Cases against the United States-but remain under the nominal direction of the Attorney General of the United States, through an Assistant Attorney General assigned to the Office. This Office should also administer a system of Assistant U.S. Attorneys working under its direction, although assigned to peirmanent and temporary details in the various judicial districts with considerable Indian populations, or as needed.
The Office should be empowered to bring suits against other executive agencies of the Federal Government, as well as against non-Federal governmental units and private parties, on behalf of the Department, or in the name of the United States, or on behalf of Indian Tribes and persons. Where a Tribe may claim a conflict of interest by the Department's position or claims, the Office may recommend a grant





6

to the Tribe to present its own case; or, resisting the claims of the Tribe, or refusing to modify legal positions in favor of the Indian clain or complaint, may provide either grant or mandatory loan for the Tribe or Indian interest to carry its own litigation and case develqopmfent costs.
From the early Sixteenth Century into the early Nineteenth Centurv. both the Spanish and English Crowns provided for independent lawyers to defend Indian interests where conflicts were evident, and to uphold the rights of Indian beneficiaries when express trust relations were established in the colonies. In the colonial trusteeships, the leaders of the tribes were sometimes named as the trustees or guardians for the persons and properties of the Tribe. Either the trustee or the beneficiaries could require the intervention of the attorney or counsel to press claims in behalf of the beneficiary, whether against the trustee or against third parties. This was not necessarily uniform practice in all the colonies, but there was sufficient frequency in it to characterize the practice as a duty of trusteeship.
The gYeieral concepts may not be a satisfactory substitute for the stylized independent "Trust Counsel Authority" proposal which has l)reviously been considered. However, it is premised partly upon the view that a purposefully committed, responsible advocacy agency, under joint control of a Secretary and Board of Indian Control, could lessen the need for tle Trust Counsel Authority, as well as the incidence of adversary relationships which now arise and exist under the closed system of Federal Indian government. The Natural Resources Manageinent division would have the priniary administrative responsibilities relating to property aspects of the trust relationship, together with greater management responsibilities being vested with Indian tribes, and consolidated or inter-tribal agencies similarly involved.
Other units in the proposed Department, briefly, would include:
G. An Office of Budget and Program Integration, including General Accounting and Programs Operations Evaluations for both the 1)eiartrient and Indian community levels.
IT. General Welfare and Community Services, including financial and technical assistances and support to tribal governmental agencies, and organized or eligible Indians in urban communities.
I. Three-year Commisson on Tribal Recognition, including an Arbitration and Reports Board on Elioibilities and Entitlements to Tribal Memberships: and, a Tribal Constitutions Revisions and Reform Assistance Board.
J. An Office of General Counsel; Legislative Liaison; Appeals; and Departmental ombudsman.
7. ADDITIONAL DISCUSSIONS
(3) Federal Budget for New Department: It is proposed that the independent new agency be established fully by 1980, and that a general budget in the realm of $2 billion per year be anticipated in its first five years of operation. not including the three separate funds discussed above at items C, D, and E. However, funds from the general departmental appropriations should be available for various programs and functions included in those same departmental categories.





7

It is thought that best use of direct grant and related Indian community assistance would not be used most effectively on an immediate crash, or increased, expenditure basis, should a new department be fully in place before 1980.
One contemplates that it would take even the proposed Indian Education Commission sufficient planning time to propose modified uses of existing education resources, additional to formulation of longer range plans and commitments.
It is proposed that Indian tribes and communities be enabled to participate in a general form of "zero-based budgeting" process for the proposed new Department as rapidly as that agencX7 has favorable prospects for establishment. In f act, a general overhaul and redirection of the, funding system and budget expenditures for "Indian programs" should be provided for with full tribal participation with the existing agencies. The Band Analysis system has been criticized and condemned almost uniformly by all witnesses who addressed the problem at Task Force One hearings. A virtual "absolute zero," zero-based budgeting process should be considered as being essential for at least one Fiscal Year in the near future. Hearing witnesses stated strong support for the Congressional Appropriations Committees' "add-ons process" as a useful method of directly informing the Congress of their own programs, plans and aspirations, despite' the frequency of disappointment in failing to secure the requested funds. The Congressional appropriations and budget committees should probably also be directly involved in the planning of a zero-based budgeting effort, alon with Indian representatives.
( Local Agency and Tribal Structures: There appear to be no
-strong sentiments abroad for saving the Area Offices. The question of maintaining full-scale agencies appears to have greatest support with Tribes who have a single-tribe agency, although that also seems to draw varied reactions, along with multiple-agencies on a single reservation. It would seem that, both immediately and on long-term basis, that a number of alternatives should be available. absence of economic resources in the tribal domain. This monumental Department for more direct distribution to the range of Indian communities, preferential consideration should probably be given to an ribsorption of general agency functions into the program and personnel structures of tribal government and community insi tutional activities. The 1834 congressional organization of the "Indian Department" mandated that tribal.members and other Indians be hired for all available jobs in the agencies for which they might qualify or be able to operate in proficiently.
The incidence of present employees holding positions with respon,sibilities for which they-and probably no one in their particular agencies-are neither professionally, technically, nor intellectually qualified was demonstrated at Task Force hearings and through other channels of information. Alternatives to a number of these situations fire absolutely necessary in view of the tribal economic and other interests involved. To fully uphold and fulfill the federal trust responsibilities toward Indian people in relation to resources management even fit the most minimal level of competence and skill will require the hiring of substantial numbers of new personnel by some agencies.





8

Although frequently this will be most appropriately done by the tribes having need for the personnel, there are numerous instances where a shared personnel pool of professional and technically proficient tribal employees would represent a better use and utilization of personnel. It makes little sense to have the needed personnel hired by the agency that has either not recognized their need in the past, or failed to insist upon their hiring and presence as being essential.
The matter of tribal or community size. it is obvious, must be addressed from a number of perspectives. The smallness of a tribe should not present any insurmountable problems, either from tile standpoint of programing or of policy. Small tribes, however, should not be, treated in a nonsensical manner. Automatic funding formulas, generally, should have the flexibility for responding to relities. The formula by which 700 non-Indian counties were distributed their shares of $175 million in U.S. National Forest 1974 timher revenues was grossly inequitable to the local governmental units which received nothing. The range in cumulative amounts paid tribes from Federal Revenue Sharing Funds-from $72 to $5.012 millionis similarly questionable from the standpoint of purposeful programing.
One good example of a tribe utilizing alternatives for satisfying its program funding needs is seen with the Ak Chin Community of Arizona. It has a population of several hundred on its Reservation, where it is providing one of the best models for agricultural farms development in Indian country. It manages its own income and revenues, but it participates in joint programing with the Gila River Reservation for minimizing the personnel needs for securing community services funds. This represents a costs savings to both Reservations in fact. The Puyallup Tribe's operating as a conduit for funding the Indian population of Tacoma. 'Washington, in autonomous prograining is another example; as is the Zuni Pueblos' past sponsorship of statewide service programs. Historically, a number of tribes stood tributorv to others, or under the protection of other tribes. Numerous treaties provide for consolidation of population, resources, and endeavors. If actions or ideas are not unreasonably nor arbitrarily restricted, there are sufficient numbers of alternatives and possibilities for serving the greatest proportion of Indian people needful of the services or periodic assistance.
More critical problems are likely to arise with large, established tribes with scattered villages and rural populations, such as the Papao Tribe and Reservation of Arizona. The inequities in relating to their populations will be dealt with in another account, but beyond the deprivations experienced in that region, the problem of dealing with people as statistics and gross numbers-irrespective of their distribution and living patterns-is evidenced there as well as anywhere.
(5) Regional Planning Councils: A proposal for Regional Councils was communicated in the interim Report of the Commission, naming ten suggested regional areas to stand in place of any legitimately needed Area Office functions. These would be patterned in form and function after the planning and management councils established under the Act declaring the 200-mile fisheries and economic zones off the American Coast. Such councils would be similarly staffed, although





9

most permanent staff personnel could reside in, or rotate among, the various communities and units of government served. If any of the several forms of suggested regional planning, coordinating, and evaluation systems night be considered as viably structured into the overall DI)epartilnental and Indian participation systems, the Task Force would recommend the establishment of three experimental coiuncils in diverse situations. These three councils, whether compared to AIPRO or the oceanic economic councils, would be able to devise different models for functional regional councils. The recouniended regions would be (1) the Indian population of Oklahoima;: (2) the Indian populations of California; and (3) the Indian populations residing within the States presently represented by tribal meimberships in the Northwest Affiliated Indian Tribes.
(6) The General Failure of the BIA: The most notorious failure of the Bureau of Indian Affairs in the programs where it ha comlmitted considerable funds-to be d; stngm"shed fromf ailure to co it either sufficient funds or consistent conscientious effort. as in the atter of water rights protection-has been in the area of inability to create permanent economic opportunities and eimploymient for J ,lian cm('emunities of all descriptions, an(d irrespective of the availability or absence of economic resources in the tribal domain. This imouminental failure to keep most Indian people out of work is all the more shameful in view of the fact that the BIA has had the assistance of so many other agencies-Office of Economic Opportunity; Economic I)evelopment Administration; Office of Minority Business Development; General Services Administration; and the Small Business Administration-in managing monies and tribal economic resources.
The former OEO agency delivered more dollars to Indians above the poverty level than to persons below that level. The agency also fostered favoritism and "buddy systems" of the worst sort. The near 95% failure rate in EDA enterprises has previously been reported to the Commission. In the BIA's old stellar program of the latter 1950's and the 1960's, the Industrial Development Program, only 200 jobs annually were created among the national Indian labor force. Less than $10 per capita was contributed to the reservation income level during its first decade of operations. In this first third of the following decade, job opportunities fell more than 80% short of projections, and delivered an average annual wage of less than $3.000 to those few hundred employed in them.
The testimony received at the Task Force hearing in Albuquerque regarding the intrusion of organized crime figures into economic development projects and speculative property sales in New Mexico and Arizona was not surprising. Neither was the reported fact that a disorganized BIA refused to investigate such matters, but acted in aid of the faulty deals.
It perhaps should be more surprising that there have not been more instances of such occurrences as that involving the delivery of the more than $5 million in Navajo housing monies to a suspect company in Los Angeles directed by a man with a long criminal record in confidence schemes and frauds. The loss of federal and Indian funds in that matter is only one in a series of situations in which tribal treasuries were cheated. In the early 1970's, the highest officials in the Interior

78-127-76-2





10

Department and BIA allowed another man of similar criminal record to push his schemes for draining a South Dakota Tribe of its economic development funds-potentially 30% of a claims judgment award that had grown to more than $8 million before it was released for use to that Tribe.
Area bankers vetoed a number of proposals from other, similar enterprisers recruited directly and indirectly by the BIA. The prime mover in these efforts was the Business Manager for the Tribe. Increased pressures developed in BIA and EDA to finalize a tribal investment. The BIA had its possession an FBI RAP-sheet on the Business Manager, or partner to the tribe, showing a number of fraud arrests and one commitment to an institution for the "criminally insane." The BIA did not disclose its information to the Tribe. A variety of lucky accidents, as well as an untimely death, stalled the tribal investment actions-after it had approved an increased ante in the final proposed plan-until the whole matter was blocked bv community reaction and publicity. Apparently, the BIA also failed to inform a former aide to U.S. Senator -McGovern. who became involved in advising that Tribe on behalf of EDA, of its knowledge of all personalities.
Senator McGovern did, as a routine matter, process the Tribe's funds through the Congress while the aide was on his staff. However, the Senator did disassociate himself with his former assistant, while declaring his good motives, during the time period involved. Other documents from the same period, or shortly thereafter in early 1973, carried the signature of that aide as being a representative of the Senator in exploring land status in Wounded Knee, South Dakota. The Task Force chairman, who assumes full responsibliity for these statements, has full confidence in the integrity of both Senator McGovern and his former aide. Nonetheless, there has been great carelessness-and definite BIA malfeasance-in encouraging these situations.
In another area of the Pacific Northwest, the so-called "Greek Mafia" has approached a number of Indian persons and tribes in order to establsh themselves with Indian fronts in the conduct of a variety of gambling, racing, and other potentially illicit activities on Indian reservations. While it is unknown if there have been any successful entries, the U.S. Attorney and the BIA have refused to act to eject a business operation in trespass on the Puyallup tribal lands that has publicly declared intent to add prostitution to this gambling operations.
8. UNRECOGNIZED AND OFF-RESERVATION INDIANS
The Task Force recommends that national policy recognize its basic duties of trusteeship to Indian tribes in general. Congress repeatedly acknowledges its relationship to Indian people in all parts of the nation, but the courts have periodically stated that Congress has the power to decide when it shall terminate its "guardianship to the Indians." Both the Congress and the Courts have differed on what the nature of that guardianship is, and neither has clearly defined it. The Passamaquoddy case may stand for the proposition that the





11

Congress cannot end its relationship merely by choosing to forget Indian populations. The U.S. Supreme Court has otherwise decided that treaty tribal rights may survive "termination" of a tribe; and some rights have so survived under these rulings reaffirming them.
The Task Force recommends that the proposed unit in a new Indian agency be charged with resolving many of the issues of recognition. It is also proposed that the general issue of tribal membership be explored from the standpoint of national policy, and that those cases of membership denials where the Bureau of Indian Affairs has been the primary agent be reported. The Task Force supports the proposition generally that a tribe possesses the right to decide the issue of membership; but there have been too many abuses in the processes, and there has been an overbearing influence on many decisions by the Bureau. There are also cases of the BIA not responding to reguilated appeals to it for periods of more than one year after the appeals have been submitted. Additionally, the BIA has violated its regulations requiring written consent when acting on its own to strike members.
9. LAND ACQUISITION
The inequities in land distribution, losses, and availability to Indian tribes and individuals should be resolved to conform, as national policy, with laws past and presently on the federal lawbooks for providing land to Indian families and tribes. The New Commiiriities Act of the early 1950's sought to establish new townships oil tyrants from the public domain just at the moment that Congress was gearing up to "terminate" Indian communities and tribal bodies. While many "recognized" Indians in California live with their legacy of "no lands and unratified treaties" for California Indians, we find Nevada Indian populations crowded at the Reno-Spark*-s Colony with 25 persons per acre and no high rises. We find Indian ranchers in South Dakota holding 98,000 acres-which may well not be excessive for successful ranching on range and grazing lands. But we also find proposals in the Congress for keeping young non-Indianm ranch families on their ranches and farms through federal aid. We hear the proposal for the same result in the national political campaigns for allowing a tax exemption on inheritance of small family farms in amounts ranging between $160,000 and $250,000. We have seen nonIndian homesteads on the public domain. And we find that Interior Department policies have prevented countless Indians f rom perfect,ing the rights to similar lands for which they have been eligible, since 1887 and 1934.
Administratively and congressionally, it would be -worthy of the Nation to attempt to restore the Black Hills to the Lakcota at the earliest possible time-even if that be drawn out until the national Tni-Centennial. Similarly, it would be worthy of the U.S. Park Service and the Mormon community of Moccasin to plan conveyance of its lands to the Kaibab Pa jutes.

10. LAND CLAIMS ATTORNEYS
The Task Force is shocked to learn that a sinfrle law firm has earned $15,026,343.69 from its cases decided before the Indian





12

Claims Case since its first recovery in 19. When its final cases are won, the law firm will have received more from Claimns Cases than the United States has sought to pay the Lakota for its greatest loss within the Great Sioux Restervation of 1868. The Sioux do not get interest, and the ten lawyers and law firms who have received more than $1,266.525.25 for their Indian claims work have diminished their tax burden on these monies by extending the cases over thirty years time. The Task Force knows it is too late to investigate the post World War II practice of several of these law firms in hiring an Indian to recruit scores of tribal clients, but we wonder why there was no investigation then when that client recruiter claimed that the comblined( law firms had promised him $10 million for his efforts. Ie subsequently settled with them out of court.

1 1. THiE CONGRESS AND INDIAN INTERESTS
The Task Force reconunends that Congress authorize the organization within its respective IHouses a full Comninittee on Indian Relations, if not a Joint Commnittee of the C(ongress on Indian Relations.
A critical issue has been raised( with respect to the issue of the so-called (Central Arizona Tribes' Water Biglts Bill, introduced into the 1.S. Senate by the Ilonorable Senator from Massachusetts,
Edward M. Kennedy. The Task Force could understand a momentary anger on the part of the IIon. Senator Paul Fannin having caused him to declare in private that he could guarantee that "this bill will not be introduced into the Senate of the United States."
The published reports from Arizona. however, alleging that Senator Barry Goldwater had declared that Senator Kennedy possessed no right to introduce a bill affecting Arizona Indians without the clearance and approval of the Arizona Congressional Delegation raises a substantive issue. Oklahoma Indians could have properly appreciated such sentiments when the Senator from Massachusetts, Charles DTawes, was dispossessing then of their promised-forever lands; or, when the President from Massachusetts. John Quincy Adams, was preparing the groundwork for moving all Eastern Indians to Oklahoma. The issue at this time is one of national obligations and trust responsibilities. Although the Task Force does not see the need for any requirements among the present members of the Congress for any such rule, it would seem that-rather than assuming possessory control of the destiny, riolghts, and interests of Indians residing within a Congressional MAlember's state boundaries-as the supreme or primary superintending trustee for the tribes, that a Member of Congress might more properly disqualify any vested interest in maintaining a local posture over the national obligation. From what state, otherwise, must a President be from to assert any solemn obligations to the Nation's first "wards" ? Many Indians might perhaps feel honored in being treated in political kind with the Nation's federal judges and the Senate protocol on their selection. For too many Indians, there is related parallel: just like Judge Crater: their water is missing.









SECTION I
Contains a general summary of the 'ak Force's work
activities, personnel, and a narrative of problems and issues identified in the course of its work. The basic recommendations discussed are presented in the preceding Summary
Report and Recommendations.
SUMMARY OF TASK FORCE REVIEW
I. GENERAL ACTIVITY BACKGROUND
Task Force One has operated on a one-year revised budget of $89,000.00. The Task Force returned to the Commission more than $:20,000 from its original budget allocation. From the total 18 manmonths worktime allowed members, full-time employment for one year was assigned Chairman Hank Adams (Assiniboine- Sioux), while the remaining six months paid-time allocation was divided between members John Echohawk (Pawnee) and Doug Nash (Nez Perce). Employed on Task Force staff in the final six months were Kevin Gover (Pawnee-Comanche), Roman Bitsuie (Navajo), and Bill Johnson (Umatilla). Bill Pensoneau (Ponca) and Darryl Clark (Assiniboine) were employed 60 days each, while Tony Fast Horse (Oglala Sioux) interned for one month. In the first six months, Bruce Davis (Oglala), Michael Benson (Navajo), and Luann Jamieson (Seneca) worked briefly for the Task Force in research and data collection. Michael Hughes (Hopi-Papago) and Vincent Knight (Ponca) were consultants for work in Arizona and Oklahoma.
The primary assignment of the Task Force from Public Law 93-580, as stated in the Commission Manual, required work involving: "a study and analysis of the Constitution, treaties, statutes, judicial interpretations, and Executive Orders, to determine the attributes of the unique relationships between the Federal Government and Indian Tribes and the land and other resources they possess." Task Force studies have covered a period of nearly 500 years. Numerous foreign, federal, state, tribal, and other Indian and non-Indian documents, records, and report information have been reviewed for possible use in the Final Report. Several different study methods, including case studies and random surveys, have been used to examine contemporary issues and crucial questions of general importance to Indian people and the larger national population.
Field studies, hearings, site visits, conferences, and Indian reservation community interviews have been concluded in the States of Washington, Oregon, California, Arizona, Nevada, Montana, New Mexico, North Dakota, Massachusetts, Wisconsin, Oklahoma, South Dakota, Colorado, Kansas, New Hampshire, North Carolina, and Washington. D.C. Other states were given attention in studies.
(13)





14

IT. GENERAL DISCUSSION OF REVIEW IMPLICATIONS
Tracing the history of legal concepts and policy applications in the field of Indian Affairs discloses a constant stream of abandonment or abuses of law within the executive, legislative, and judicial processes of America. The System works-and how it has worked! Its central balancing feature has been that when good actions have been rendered by one arm of government, the good effects have been checked by another arm or by other hands.
Unfortunately, these statements are particularly true in this modern era. They cannot be relegated to the distant past. "The past is as recent as yesterday,' as one hearing witness declared. Many wrongs committed in prior moments of history carry their own rationalization, or find basis in reasons that may be more readily understood or accepted than actions which are clearly unconscionable-but committed by a self-professed enl ightened people and mature nation.
A central purpose and obligation shared by the Task Force and the Commission is that of helping to frame, or to stabilize the foundations for, a positive and promising future for the Native American people within the life of the United States.
This task cannot be accomplished, or even approached, merely by detailing a near-limitless chronology of wrongs done to Indians. What matters is the future. The Commission and its investigative units shall fail that concern, either if we pursue the most exotic fantasies for which we may find some basis, or if we choose to place our recommendations in commonly expressed, yet most negative, cast: "Indians should be able to make their own mistakes." At minimum, the Task Force results should at least allow someone some chance to do something right!
In analyzing the issues of federal Indian relations, treaties, and trust responsibilities, the Task Force addressed the question of the Indian future at different points in time.
In adopting and amending the Constitution of the United States, what future was contemplated for the Indian people in the future of America?
What future was contemplated in each instance in the making of innumerable treaties with Indian Nations over a period of nearly 400 years throughout the span of two continents.
A trust relationship does not contemplate the utter ruin, demise, or destruction of the trust's human or national beneficiary. What designs for a future must be satisfied by the exercise of trust r-esponsibilities ?
Asking the same questions through the flow of history, we find, provides few constant answers. Yet we do find some constants-some elements which do not change-or which only change by abberrations,. or at fault of deviations froms the standards or values which by reason or morality might most naturally be expected to prevail.
And, yes, we do find some constant patterns. There is some constancy in change: such as changing the rules repeatedly-in laws or outside laws-to the detriment of Native people, and for the advantage of the non-native rulemakers.
What justice, we inquired, can be claimed for an alleged "Right of Discovery?" And, accepting its justness in its vigorous employment, we also asked, what future to Indian Nations did this right allow?





15

From the earliest eras of New World exploration, the great scientists, philosophers, theologians, politicians, academicians, and legal scholars of Europe concurred in a view that 'discovery" permitted a just claim and right to property in the Amiericas. There was common agreement that the Native Nations had appropriated to themselves too expensive an area of the 'World's land masses-vastly exceeding the just territorial needs of the Indian populations. This rationale decreed that the Native people must necessarily surrender major portions to the Law of Nature" and the Creator's Will."
However, when advanced and confirmed in the developing "Law of Nations," under which the United States of America was born, a corollary or necessary right was recognized for the Indian people; one which imposed strict limitations upon claims made by "-discovery."1 The Native people were to be accorded their right to life upon the planet." The aboriginal nations were to remain in possession of a sufficiencyy of land" to provide for all their present and future needs. Several methods were available to the European sovereigns fox' acquiring lands within the limits of preserving to Native people their own national land needs.
Under the principles of law observed internationally at America 's birth, the future of Indian Nations was assured. While the tribes might readily cede or convey additional lands to the young new Nation, there were basic limits beyond which the United States and the Native Nations might not justly proceed. A nation could not alienate or dispossess it-self of territories essential to its own security and survival, its perpetuation and future well-being.
Raising the question of future in 1.976, we find that land has become one of the most crucial and critical needs among Indian people. It can be conceded that the wealth-laden territorial masses-which were once wholly Indian-can reasonably sustain a viable life for 215 million people, as now populate the United States. This is conceded in light of the federal census projections that the resources of the United States must accommodate an increased population of an additional 36,000,000 to 85,000,000 persons by the end of the century.
If the national productivity and resources wealth can satisfy the needs of 251 to 300 million people in the year 2000, what future can it afford to offer or allow Native'Americans now? Also pertinent is the question then, why has this country never been able to provide for its relatively small Indian population?toAeiashrsoflen
The impact of the massive migrationstoAeiashrsoflen
from other countries cannot be denied, whether negative or otherwise. Presently. not counting "illegal" emigrations from Mexico and Canada, immigration into the United States is limited to approximately 400,000 persons a year, having averaged slightly less than that number in recent years. In 1974, 15000 0 leswr auaie snwctzn of this Nation. ,0 leswr auaie snwctzn
Significantly, the general level of annual new entries int-o national population by immigration in the past decade has been roughly equal to the number of American Indians who have been counted as the Federal Government's Native American service -population. The point is not an argument against immigration, nor a denial of the human wealth which the process contributes to the country.





16

Rather, the point acknowledges that there is credence in the proposition that America remains a land of promise and near limitless opportumity to a steady influx of newly-arrivin, aspiring citizens-in yearly numbers comparable to the lifetime, resident Indian service population of the United States, who yet have only the dimmest prospects for a promising future in their own homeland.
Never in its history has the United States made available the economic or other resources necessary to satisfy the most basic human, individual, family, community, or national needs of Indian people. In fact, the United States has seldom allowed, or enabled, Indian tribes or individuals to secure the benefits or gains potentially available to them from the considerable land and other economic resources base still held by. or retained in the ownership of, the collective Indian community.
Control of Native American resources has remained in the hands of other people-as has the destiny of Indian people. It is with that experience that so many Indian people look to the American Indian Policy Review Commission with hope while so many others look upon it suspiciously as just one other form of threatening jeopardy.
I11. IDENTIFICATION OF PROBLEMS AND ISSUES
A. So 'vere;gnty
Th issue of sovereignty, incltiding a definitional analysis of the character and status of Indian Nations, is central to many of the concerns or problems being addressed by the Task Force. Matters regarding treaties, trust relations and trust responsibilities, and the very nature of Federal Indian relations, are strongly influenced and largely formed in relationship to the attributes of sovereignty possessed by the Indian people.
Sovereignty exists at many levels; sovereignty of the individual being among the most sacred and at the base of national sovereignty. National sovereignty derives itself from a people being joined in social and political compact, and encompasses their obligations and duties to themselves and to others-and, in a larger sense, to their universe and all of humanity. These obligations and duties give rise to their rights by which their responsibilities may be met. Territorial rights and the. rights of self-government are principle among these, as is the governing of relationships with other people and other sovereign entities.
A major problem at the heart of many other problems to be addressed is the breakdown in the national character, or nationhood and sovereigmty, of Indian people during the past 200 years. Whatever the character of motives, the breakdown has come in consequence of the erroneous ,and repeated exercise of unjust powers.
Without modification in relations by treaty or other means, Indian nations were, acknowledged as possessing similar character and the smime national rights as adhered to the United States when forming its republic under the Constitution. As expressed fifteen years before the beginning of the American Revolution: Every nation has an obligation to labor for its own perfection and the happiness of its people, to satisfy their wants and needs and potential from the natural, land, territorial, economic, and trade resources available to the nation.





17

The standards of law and principles of governmental and territorial rights confirmed to Indian tribes prior to and at the time of the establishment of the United States, when stated in context of deteriorations in those standards and rights, provides a delineation of issues and problems which exist in varied forms today.
The successful prosecution of numerous claims against the United States for a multitude of wrongful actions against Indian people provides evidence of both deliberate and unintentional national errors in dealings with Indians. However, it also can be demonstrated that inany long-standing practices and actions of doubtful validity also gave rise to erroneous doctrines of national law for the oppressive governing of Indian people and properties-which have been sustained primarily by the precedents and repetition of unjust actions and fault judgminents. These doctrines call out for correction in order that national p)oli(v may be freed from their deleterious impact in seeking the just objectives of the nation, while accommodating the aspirations of Indian people.
Rather th'ain enumerate these injurious dloctrines having questionable validity, limited reference will be made to several in the followiii" discussions of identified current problems and issues:
(1) Tribal Soveref/n.ty a(/H Terrtor~al R qhts.-Iiiherentlv. the Tribes pos ses the rights to self-government and self-determin action. America's founding fathers recognized, with respect to the national character of the separate Indian people and in the formative development of relations with them, that the Tribes should not be compelled to protect by force or power those qualities of nationhood which vested with the Indian Tribes by right. As stated above, these basic rights evolved from the existence of obligations and duties of a nation to its people or itself.
The territorial rights of the Indian nations were associated with these same obligations and duties. Whereas the governmental rights and obligations were framed by accepted definitions, territorial rights were naturally limited by physical dimensions or finite boundaries, while being founded upon inimemorial prescription and use or possession. Although just claims for acquiring lands from the Indian Tribes was validated by the Doctrine of Discovery, that doctrine mandated that Indians should be maintained with a sufficiency of land to satisfy their duties and obligations to themselves-including their future development and security, or future well-being.
Among the sovereign governmental and territorial rights and obligations recognized to exist with the Indian nations by the laws and treaties of the pre-Revolution era and during the early decades of the United States, were the following categories of rights-which, by subsequent disregard or infringement, are now modern issues:
(a) Adequacy of Land Base
The Tribes possessed -a right to convey their lands to another nation, while possessing the equivalent right not to convey such lands. Treaties were the recognized form for conveying lands between nations, and for certifying boundaries. Land conveyances, absent decrees by conquest, were contingent upon mutual consent. However, a basic limitation against the alienation of lands also carried in the law. There existed no governing authority with capacity for transaction or consent





18
to alienate such quantities of land or territory as would leave a Tribe or Nation without a sufficiency of land to accommodate the present and future needs of their people.
While the individual allotting of Indian Reservation lands took its first form in treaty provisions, together with allowances for alienation of certain unallotted lands, the general design of the 1887 General Allotment Act and the various Surplus Indian Lands Acts likely were subject to serious questions of validity and legitimacy in the exercise of federal powers.
The loss of lands to Indian Tribes, and the landless state of many others, through various forms of alienation and dispossession, is among the most serious problems existing among Indian people today.
(b) Water RIP.qts
Legal confirmation of the water rights existing in the Indian Tribes or Nations was well established when the United States came into being. The Spanish and English had affirmatively recognized the Indhan water rights, and had also declared their "inalienable" character. The federal failure to accommodate Indian Tribes' claims to water rights (Winters Doctrine), or to the delivery of water, represents the single greatest failure of government-within the complex of current Indian problems-to meet its obligations, or to follow the paramount law.
(c) Hunting and Fishing Ptghts
These issues have become needlessly complicated by inter-racial conflicts, inter-governmental contests in rights supremacy claims, misapplied case law developments, and general public miseducation regarding the resources and the competing interests involved. Hunting rights problems may become incidental to resolutions of other issues, such as jurisdictional questions and territorial relationships, including mobility. Commercial fishing issues are a separate and distinct problem, closely related to the national rights of the Tribes. As with water rights, and certain forestry issues, commercial fisheries are subject to long established principles of "imprescriptability" or "inalienability" as part of the wealth or economic rights of Indian Tribes, appurtenant to territorial rights. When ceding a portion of the right, or admitting others to the fish resources, a priority right in timing and harvest quantity prevails with the first possessor. The critical problem evolving with this issue is the threat of Indians' rights being subordinated to other interests.
(d) Tidelands and Shorelines
Numerous situations exist where tidelands and shorelines issues will be drawing increased attention, along with related questions of lakes ownership and waterway boundaries. A problem arises itself from the fact that these issues have generally been very poorly litigated when carried into court, and the results have been extremely contradictory from state to state and jurisdiction to jurisdiction. Court decisions, while generally lived with, have been indecisive in settling issues with any finality, partly due to the character of the litigants and questions of absence of "indispensable parties." The United States has evidenced great dereliction in pursuing these issues in behalf of tribal claimants to rights, or been a primary transgressor, as shown in Court Claims cases on the issues.





19

(e) Boundaries and S uveys
Indian land title questions continue to be greatly aggravated by the federal failure to maintain an adequate land and boundary survey force for determining exterior reservation boundaries and allotment lines. The issue of erroneous surveys operating to di finish reservation lands, while enlarging the national public domainn of federal reservations, is one which should be subject to clear public policy and actions for just resolution. The monumental backlog in surveying activities has had advere economy ic iimupact on numerous reservations; has contributed to trespasses, wrongful property use, and major property thefts; has stifled land use and other economic p lanning; and has deprived Indian land owners the beneficial use of
-their resources and property.
(f) Terv'ritorial Jurisdiction
The problems of jurisdiction within Indian Reservations affect numerous other issues when jurisdictional disputes become more acute and intense. The general disposition of jurisdictional matters in the second century of the national history bears little resemblance to the applied jurisdictional concepts preceding it.
Originally, there were few variances from the proposition that, within an Indian Tribe's territorial domain or within the exterior boundaries of an Indian Reservation, the Tribe possesses jurisdiction over all properties, all orders of people, and all manners of activity. Unless otherwise provided by treaty or other valid measure, the Tribes are vested with the right of determining who may be admitted, and of deciding whether or not any alien person may possess or own lands or other permanent properties within its dominion boundaries. Similarly, persons admitted to a sovereign territory enter being subject to all the jurisdictional laws within that territory. The early laws and treaties in America do not evidence any other rule, nor sanction any wholesale ,exceptions to it.
Among the first few hundred treaties-in the various categories of alliance, commerce, friendship, tribute, protection, or dependencydistinct lines of separate Indian and non-Indian territorial jurisdiction are maintained. Neither Indian nations nor Indian individuals were considered subject to any superior jurisdiction outside the Indian community. The first grantings of personal jurisdiction over the subjects of one nation by another had the design of severing personal offenses from national actions and causes for war. The measure was reciprocal.
The first federal laws under the Constitution made no pretense of asserting jurisdiction over members of Indian Tribes, within Indian territories, or over the tribal nations themselves. Control over trade and relations with Indian Tribes was asserted through exercise of jurisdiction over the actions of non-Indians or citizens of the United ,States within its own territories and under its governing authority. MIodifications came through express treaty provisions.
As the United States added new territories to its general domain, its laws provided that Indian lands would remain excluded from the new territories and the states formed within them, until the particular tribes consented to being included within the federal territories and subsequent new states. All Indian rights, tribal and individual, were to





20

remain illimn)aired, until they might be modified or extinguished by treaty. These laws renlain on the statute books today. The Courts rendered contradictory ruflin!s on their affects upon the Tribes anl( upon the several states and the Nation.
B. Question, of Idwn l tle
The particular character of lands owned by Indians, and the cliaraeter of Indian title to properties, has posed many questions and provided nimany indefinite answers throughout the history of FederalI ndian relations. Currently. a debate as to whether Indian lands are to be considered "public lands," "private lands," or "federal lands." is ongOing and causes variously in judiial proceedins and in administrative decisions reg(ardin, the application of general laws to In(lans. Examples where this issue has arisen may be seen in the application of the National Environmental Policy Act (NEPA) to Indian land use andl leasing, and in the waiver of sovereign immunity to state court adjudication of Indian water rights under a federal jurisdictional law relating to "federal" water and property rights.
Any definitive analysis of the issue of trust responsibilities necessarily must involve an examination of the disturbing implications of land "title" questions, or the numerous contradictions in judicial, legislative, and executive or administrative decisions that revolve about the "title" issue e. The contradictions have created monumental )p'Oblems.
(a) ZaxatwuOn and Tox IMm /iiun;ts
The maxim that "the power to tax is the power to destroy" may be kept in mind when surveying the modern condition of the American Indian. While a general notion persists that Indians drain the public dole while escaping the grips of taxation, it may be better demonstrated that the Indian population has been among the most overtaxed in the nation.
The continuous battles between state and tribal governments over the issues of taxation constitute a major problem which should be addressed by the Congress.
(b) Rights to Sec 'luity and Econom Independence
When forming relations with the Indian Tribes, their national character and attributes of sovereignty were fundamentally and formally recognized by the United States. Even the removal treaties with the Five Civilized Tribes acknowledged their essential sovereign rights, as reflected through the vesting of absolute title to Indian territory lands with these tribal nations. The great Sioux Reservation evidenced similar commitment. Among these were their basic rights to economic independence, a viable right with the land bases originally secured to them.
The treaty negotiations and general provisions signified such purposes and promises on the part of the United States. Similarly, their rights to security-being their freedom from external obstruction of their national preservation, perfection and happiness-remained intact and assured for the future with the treaties. The transgressions against these rights are relevant to the assumption of future obligations by national commitment, there being no lessening of the obliga-





21

tions to satisfy the just needs of the tribal populations by arbitrary actions diminishing the Indian capacity to meet responsibilities.
(c) Indian lbt;gh oN of Trade and Co in mece
While Indian Tribes are inherently vested with certain rights o.f commerce and self-rerulated trade,-(onfirnned repeatedly in a inult itude of treaties-both the contemplated riglits referenced in the (onstitution and those expressly secured by treaties have become a dead letter as a matter of sovereign right; untaxed rights; or a viable economic asst.
C. The Question of T)-ust IlelatioashIps
The legislative, executive, and judicial branches of the Federal government have failed throughout the national history to give definitive form or statement to the specific character and force of the trust relationship that exists between the United States and Indian Tribes or people. Confusion still reigns in the continuing discussions of the relationship's applications, and in adjudging its genuine source or sources.
Recent court decisions have rendered contradictory opinions on identification of the origin of federal trust responsibilities to Indians. One ruled that the. First Congress established the trust relationship in the first Federal Indian Trade and Intercourse Act in 1790. The other equivalent court of another circuit depicted the relationship as one being founded in fiction, evolving first in the judicial opinions o~f Justice John Marshall of the U.S. Supreme Court in the 1830's, but then attracting substance subsequently when being traded between the courts and the Congress as a firm governing legal doctrine in Indian affairs. Besides judicial precedents relied upon in the rulings, both views are partially substantiated by historical truth.
(1) Indians as Dependent Domestic Nations.-Justice Marshall's onion that Indian Tribes might best be denominated as being "domestic nations" incorporates the notions of, and importantly the conditions of, a trust relationship. The relationship was established between separate and distinct national entities or communities, consisting of sovereign peoples possessed of territorial domains.
According to John Marshall, and the authoritative legal texts relied upon by him, one nation might subject itself to the protection of another, or become dependent upon it, without necessitating any surrender of its sovereignty. Its internal sovereignty would remain intact. Any extinguishment, or diminution, of the external sovereignty of the protected nation could be exacted as a just price for the grant of protection. The degree of diminution of external sovereignty would be controlled by the instruments of forming or formalizing the protectorate and trustee relationship-generally being the instrument of treaty.
The clearest legal authorities and expression of law cited by Marshall in the early 1830's, when rendering decisions in the so-called Cherokee cases, had been published in 1760 and had been drawn into general usage prior to the issuance of the Declaration of Independence some sixteen years later. The early Indian Trade and Intercourse Acts have been held to have imposed a trust relationship between the Nation and Indian Tribes, simply by affecting the conditions of a





22

trust while subjecting the Indian nations to a legal incapacity affect ing' their abilities to dispose of lands or properties possessed by the Tribes.
The Trade and Intercourse Acts had simply prohibited any person or state from acquiring title to any Indian lands except by process of public treaty undertaken and secured by authority of the Unit( States. The. Acts had categorically applied to all Indians 1)y indirection, having their direct force solely upon the persons of nonIndians and the several states in proscribing certain activities by them, or their transactions with Indians.
These positive laws of the United States had their first applications within the territorial limits of the new nation, and secondarily within the expanded national territory secured from, or ceded by, Indian Tribes and European Nations. It can be demonstrated amply that the Trade and Intercourse Acts of their own force did not operate to
divest Indian Tribes of their attributes of "independent sovereignty" and "nationhood," nor to render any Tribes outside the original boundaries of the United States, if anywhere, as being "domestic dependent nations."
The more basic question is whether or not the organic and fundamental laws, or Constitution, of the United States established a trust relationship between this Nation and the Tribes.
In the strictest sense, the same conditions imposed by the Tradeand Intercourse Acts prevailed under the terms of the U.S. Constitution, by the very assertion of an incipient or presumptively "ultiinate dominion" over the territories of the Indian nations. The NonIntercourse Act did not deprive states and non-Indian citizens. or others, of authorities or capacity which they might have exercised or utilized in the absence of the legislation; rather, these laws were punitive measures, or provided sanctions against the exercise of authorities and the undertaking of certain transactions which were disallowed under the constitutional sovereignty and dominion of the United States. The examination of "Indian title" land questions sheds the necessary light upon the "dominion issue" for showing that the essential elements of a trust relationship between the United States and Indian Tribes were effectually incorporated into the Constitution.
(2) Indians as Incompetents and as Vard., Under G"ardianhip.
In the same instance of adjudaing IDdiqn Tribes as, perhaps, being "domestic dependent nations." Chief Justice John Marshall had stated an explanatory view that "their relation to the United States resembles that of a ward to his guardian." This analogy is the "fiction" alluded to by the Ninth Circuit U.S. Court of Appeals in 1975 has having evolved into the foundations for the more frequently applied "trust relationship" with Indians-one being wholly undisciplined in its development by the three branches of the government.
Government officials who had disregarded the specific rulings in the. final Cherokee decision rendered by Marshall, nonetheless, seized upon the guardian-ward concept immediately as the guiding "principle" for further public policy toward Indians. The concept was relied upon to' cut through the sovereign shield of the Indian nations, ultimately to subject Indian individuals to "wardship status" "in a state of pupilage." Although the guardian-ward concept was not given full force and play until after the end of treaty making with Indian nations in





23

1871, it asserted a solid impact constantly in public dialogue and political decision in the intervening years of a half-century.
While several Commissioners of Indian Affairs invoked the "warid ship status" of Indian Tribes as reason for declaring them and their territories as being "colonies of the United States," and to be admninistered as such, other public figures sought to give the status different oppressive meanings.
The guardian-ward concept did give rise to references regarding trust relationships and reslpofsibil itie_ s within increasing frequency. The usages generally resulted in increased control over Indian persons and properties. Treaties, already made and continuing to be made, had the major moderating influence for restricting adverse exercises. of legislative and administrative power's against Indian people. However, the treaties themselves operated to deliver more Indian properties to the Federal government for direct control or management.
The clearest expression of federal trust responsibilities "during the treaty-making era, was made with respect to Indian funds or the variouis tribal treasuries. Indian monies were held in trust by the United States, subject to several different methods of control and forms of use. Indian lands became subject to explicit and express trust status at a imich later stage, and then in context with the guardian-ward concept in its most negative state.
Long before passage of the General Allotment Act in 1887, the process of allotting tribal lands, as well as some public lands, in severalty to Indian families and individuals was authorized in numerous treaties. In the latter portion of the 1800's, however, and particularly. after the national termination of treatymaking with the Tribes wasaifected, the allotment process became strongly intertwined with issues of incompetency, taxability, and citizenship. Incompetence became an imagined necessity for creating individual trusts for holding, real' property; and the creation of the temporary trusts in lands for Indians established a condition of taxability for the previously non-. taxable lands at expiration of the trust period.
One doctrine sometimes flowing from the trust relationship-while having clear sources in other instances-which has had some of the more curious attributes when employed, is that of the "plenary powerof Congress." There has been speculation that it is a powerr wellgrounded in the Cherokee Tobacco farms, the Black Hills gold of the Lakota, and the Indian oil fields of Oklahoma." The implication ofthat statement is that the exercise of "plenary power" over Indian people and properties was not evidenced within the first hundred year's of Federal Indian relations.
This "plenary power" doctrine has been drawn in context of theguardian-ward concept, and declared to arise incidentally and necessarily with the trust responsibilities: withh the obligation arises the power to carry out the duties imposed by the responsibility." When advancing to the forefront as the primary force in Indian "affairs in the first few decades of America's Second Century, this power w,'s invoked in the name of "trust responsibilities" to override the provi-. sions of treaties or to abrogate some outright.
(3) E stablishmn~t and Termnin ation of Trust Rela t'onips.-Several forms of trust relationships were established in the colonial pe-





24

riod of America. In sole instances, non-Indians were designated as trustees. In other cases, Indian governments were recognized as truslees for their people and community properties. Frequently, enforceable standards and systems for enforcement were set forth, or provided for. under law. Some trustee and protectorate, as well as tributory st ate. relationships were also maintained by treaties.
While the assertion of ultimate federal title to Indian lands had strong influence in the development of the "trust relationship," and afforded additional rationale to the "guardian-ward" doctrine, the Federal government ultimately came to assert an overriding authority and power in claim of its "trust responsibilities" even in cases where absolute title or ownership to lands had been conveyed or confirmed to Indian tribes. In the case of several Oklahoma Indian nations, the trust responsibility was construed as vesting the United States with superior power for abrogating treaties, reconstituting tribal governments, anId resuing control of Indian properties, after the land title and trust responsibility had been fully vested in the Indian governmentS.
The termination policy and legislation subsequent to World War II created its own set of problems, and framed new questions regarding trust relationships and treaty rights. A variety of questions are emerging from the litigation processes involving termination issues. In addition, the 1971 Alaskan Native Claims Settlement Act has posed numerous unresolved issues relating to trust responsibilities and status relationships. Where treaty or other tribal rights have been recognized as having survived the cut of termination legislation, there are continuing questions of the nature of any trust status which may yet reach the rights that are resource based.
The termination policy can be demonstrated to have been little more than the strains of a malformed. self-serving philosophy of non-Indian interests dating back to America's colonial history. Its pervasive presence and influence was the cause of most failures in national Indian policy.
D. Indians Under the U.S. Constitltion
While the Commerce Clause of the federal Constitution has often been regarded as a source of congressional power over Indian people and property, the history of national Indian relations does not disclose any early claims of direct authority by Congress over either. The matter of conmmnerce and trade, and its regulation, is central to the sovereign rights of a country, and directly related to the issues of national wealth, security and preservation. The early Indian Trade Acts, again, operated to control the activities of citizens or nonIndians-not those of Indian tribes, except indirectly through the restrictions upon citizens and aliens.
In Federal land acquisitions from the Tribes, the United States sow,',Df only to secure tTrade agreements with various Indian nations by method of treaty. A series of federal acts authorized treatymaking attempts for the explicit purpose of acquiring trade pacts, and to discourage Indian trade with foreign interests and with other Tribes considered unfriendly to the United States. The Indian trade was not legislated or regulated by the Congress. Major federal expen-





25

ditures were allowed to create a governmental monopoly in the potentially lucrative Indian trade. a virtual monopoly that was maintained for decades. The full value of the monopoly was not realized, however, because of the refusal of citizens to be controlled and restricted by the trade and intercourse laws.
The constitutional reference to "Indians not taxed," for purposes of congressional representation, had distinct application to Indians in the original states and territories, besides the later application given it.
E. Federal and Indian and State Relations
For the larger portion of the national history, Indian country or reservations were technically excepted out of, or exempted from being within, the states and western federal territories, until such time as the particular Indian tribes agreed otherwise by treaty or consented to be included within the territory of one of the several states. Likewise, the federal judicial districts aid not generally extend into Indian country who were often under the jurisdiction of an adjoining, or several adjacent. jurisdictions.
The provisions of Statehood Enabling Acts and state constitutions, forever disclaiming jurisdiction over Indian Tribes and Indian lands, has had the concurrent effect of causing most states to disallow any affirmative recognition of the positive standing or rights of Tribes in their legislation or statutory constructs. Although this might not have been necessary. it has generally been the case. Even in instances where Tribes have repeatedly forced the states to recognize their tribal rights in recent decades by litigation, the general laws of most of the states still fail to acknowledge the existence of the Tribes.
Federal funding processes which rely upon state distribution channels and approval procedures probably have aggravated the ambivalent relations between Indian communities and states that have long existed. In part, this has intensified certain hostilities or mutual antipathies. The restoration of a tri-partite system of positive relationships is now essential.
F. United States Treaties with Indian Nations
The principles involved in treaty-making were not only anticipated to be an integral part of formalizing and governing relationships between the United States and the Indian Nations. but were to be observed conscientiously as a distinctive feature of the moral foundations and just ideals of a new American Nation desirous of reflecting "undecaying luster on our national character." These bilateral relationsbips, initially observed, did acknowledge the national character and rights of Indian Tribes, while pursuing relations based upon a mutuality of interests.
In stating that one nation does not surrender its "independence" by joining with another and coming under its protection, when characterizing the Indian Tribes "within the acknowledged boundaries of the United States," Chief Justice Marshall had repeated the maximum relating to such alliances: "to the more powerful, is given more honor, and to the weaker, more assistance."
While the United States can claim with justifiable pride that the greater area of this country was secured by legitimate purchase from

78-127-76--3





26

the Indian Tribes, the accommodations made by the Indian people to the extravagant needs of the colonial and American settlement and expansion should also be noted. The Indian land cessions, as well as the Indian trade, contributed substantially to the development and wealth, or treasury, of the young United States and its financial institutions. The sizeable loans of Indian monies to several of the original and new states, as well as to a variety of business interests and corporations, were in character with relations between nations. The assistance granted by the Tribes was, perhaps, more conformable with the "Law of Nations" than the actions of the other interests involved.

IV. GENERAL DISCUSSIONS OF FORMATIVE RECOMMENDATIONS
This general discussion necessarily includes further identification of problems and issues.
A. General Policy Principles and Objectives
Past public policy of the United States toward Indian Tribes and people lave recognized few controlling imperatives or principles, and hasseldom operated toward the achievement of definite objectives regarding the constructive advancement of Native American communities in forms consistent with the Indian will and the natural rights to a secure future.
Based upon information gathering, discussion. and research, a number of priorities or issues have emerged in the form of principles or objectives which merit conscientious consideration:
(1) Indepeudeint Societal and Secure IPolitical Existence.
(2) Complete Economic Independence and Development Assistancc.
(3) Promise of Permanency in. the Life of America.
(4) Qualitative Reform in Governmental Systems and
Relations.
(5) Protection of Basic Indian National and Territorial
Rights.
These priorities are heavily inter-related with one another, and with the primary subject matters of the Task Force: Trust Responsibilities; Federal-Indian Relations; including Treaty Review. B. Treaty Relations and Trust Responsibilities
Yihile treaties were predominantly utilized for purposes of acquiring more Indian lands, they also framed or modified relationships between the contracting nations. Some series of treaties reflected the contemporaneous national policy, as well as broader national purpose and commitments. Often these found clearer expression in the negotiation process-including related congressional or executive instructions-than in the actual treaty provisions.
(1) Rights to Decent Health, Education, and Housing.-An assumption of obligations and responsibilities by the United States to sustain or fulfill the rights of Indian people to decent health, education, and housing provisions are founded both in treaty-making processes and in the establishment of trust relationships. This is more true with respect to health care and education than it is for housing.
Regarding housing, it can be shown that federal treaty negotiators repeatedly promised the means or supplies for individual and family






27

housing for Indians in the course of transacting most treaties after 1850. The promise was seldom placed in the treaties, but it was constantly used as an inducement for accepting reservation settlenlent, and additional land surrenders. Congressional Indian Alairs coinmittee members discussed it often.
Caring for the health of its members, and providing for the education and self-fulfillment opportunities of the people, are a inol g the paramount obligations a society owes to itself or its nation. To the extent that there exist resources to provide for them, there is a duty to afford their benefits to the people as both national and inelnbership rights. While there are frequent references to educatiomil provisimns, and some fewer references to health services, in the explicit terms of many treaties, the provisions are also implicit in the relationships formed.
The treaties of protection and dependence did not divest lie Tribcs of their national character, nor diminish the paramount obligations for health care and educational opportunities entitled to the Indian people. However, to the extent that the Indian Tribes' capacities were diminished for meeting those obligations, either immediately or subsequently, the basic responsibility in some measure would necessarily shift to, or be shared by, the United States. The more extensively the land and resources base of any Tribe or Indian Nation might be reduced, or otherwise relinquished by whatever method, the more likely it would be that the Tribe would suffer diminished capacity in this respect, and thus become more reliant upon this N-ation for assumption of a larger measure of the inherent responsibility.
(2) Unratified Treaties.-Persuasive showings can be made in support of the proposition that a number of United States treaties made with a number of Indian Tribes, which were not formally ratified by the U.S. Senate, should nonetheless have been accorded the full respect of ratified treaties; or, otherwise a duty to act toward restoring conditions as nearly as possible to their original state or standing was vested with this country. C. Reform in Governmental Systems and Relations
The overriding issue in the formulation of new policy proposals and directions is the fundamental question of whether or not Indian people, and the people of the United States, can insist upon and secure the basic elements of good government in the field of Indian affairs and matters of public policy and interests.
(1) Current Climate of Indian Admiistration.-In early 1933, the late columnist Drew Pearson began a public campaign in suppor-t of a federal-policy outline for "complete economic independence and self-determination" for the Indian Tribes. Now that a "Policy of Indian Self-Determination" has been in place for nearly six years, analysis indicates that the policy does not incorporate a concept of elf-determination, but rather means little more than "potential selfadministration, inherently limited." Task Force findings demonstrate more serious faults in federal administration and tribal government, however, than a misnamed and poorly implemented policy.
There is substantial evidence in support of the complaints that the climate and conditioning of the Purcau of Indian Affairs, as well as tribal government in general, encourage corruption and reinforces





28

or rewards incompetence. There appear to be virtually no processes of accountability in either arena for providing remedies to either condition, much less to provide systems for early, if any, detection which could lead to effective remedies or correction. It stands to the credit of most Indian people, and most tribal officials, that relatively few persons in tribal government have taken advantage of their positions and situations of non-accountability.
Federal services and funding delivery systems are notoriously inequitable to major portions of the national Indian population, and to a majority of tribes. This serious deficiency has been exacerbated by a number of personality and systematic or mechanical factors, ra a'iXg from internal favoritism within established friendship cults to transient political considerations granted precedence over human rights and known law.
(2) Undivided Respons;bdility in a New Ind;an Department.-The general weight of Task Force findings and conclusions favor and support arguments for a reasonably rapid, phased-out abolition of the Bureau of Indian Affairs in its present state and character--contingent upon its replacement by a phased-in Department of Indian Affairs (or whatever it might be called). The operational and control structure of the new Department should be an agency of both the United States and the several Indian Tribes, and should reflect a restored condition of bi-lateral relationships in administration and in continuing policy development. The following represent preliminary ideas:
(a) Joint Control: Although under the direct administration of a cabinet-level Secretary of Indian Affairs for at least ten years, the charged functions and general administration would be subject to "joint control" by an "Indian Board of Control," consisting of persons appointed by the President from nomination lists submitted by Indian people in a prescribed and representative manner.
(b) Regional Councils: Some number of regional councils, representing every Indian Tribe with a voting member of their own selection or election, permanently staffed and supported similarly to the management and planning councils established for the purposes of implementing the 200-mile territorial fisheries and economic zones or extensions in the Atlantic and Pacific Oceans, for program planning, coordination, monitoring and evaluation purposes. Budget development and personnel control or staffing recommendations relating to tribal and inter-tribal activities or programs, and other representations, would be made from the regional councils to the new Department.
(c) Tribal Autonom: The autonomous rights of the respective Tribes to self-government would not be relinquished by establishment of the Board of Control or Regional Council, and the rights to make direct representations to the Congress and the President or Executive agencies should not be impaired or diminished.
(d) Consolidation of Federal Resources: Without exception, virtuallv, all Indian programming and federal funding assistance should be consolidated in. and channeled through, the Indian Department.
(e) Legal Division: The Department would contain its own legal staff of attorneys empowered to act in behalf of the Indian Depart-





29

ment, and the Regional Councils. Apart from legal staff detailed to the Regional Councils, the Department would detail regional attorneys, on permanent and temporary basis to U'.S. Attorneys' Offices, and in some manner to the Justice Department in Washington,I)C Independent provisions for aiding Tribes in financing the cost of litigation development and prosecution, including attorneys' fees, should be established.
(f) Appropriations Levels: With establishment of the Indian Departmnent, a five-year authorization for appropriations of not less than two billion dollars per year for the first five-yea r period should be allowed for the Department, including Indian Health Services programs. Additionally, three other separate funds of one billion dollars each might be committed under a ten-year authorization (but immediate appropriations into the U.S. Treasury) for the several purposes of financing some form of the following:
(f.1) An Indian Housing and Community Facilities Construction and Credit Authority.
(f.2) An Economic Assistance, Land Purchases and Community
Development Fund.
(f.3) A Transportation System, Surveys, and Natural Resources Management and Development Fund.
(3) T1ribal Government Reorganization and Reform Options.-An administrative commission, or other unit, should be established with in the new Indian Department to facilitate, aid in, and ratify for federal purposes, any constitutional revisions or tribal government reorganizations which might be submitted to it under prescribed processes within a three-year period after establishment of the new Department. At a time when non-Indian governmental units are being reviewed for possible revision and reorientation to simplified processes, numerous Tribes around the country are involved in grovernmiental revisions that appear needlessly complicated and overly burdensome for all people involved. Some Tribes-in sharing the experience of most states and other types of local government-often have found themselves forced into restructuring for more bureaucracy and unwanted changes by Federal government eligibility and program requirements.
The same administrative unit or commission might also handle some of the issues of federal recognition of Indian Tribes on a continuing basis.
(4) Relations with the Congress.-Tracing the relationships between the Indian Tribes and the Congress reveals some of the most dramatic changes in the nature of Federal-Indian relations, and transformations in powers to be exercised. 'With the emergence of the asserted "plenary power over Indians" evolved the judgment that the Congress itself was vested with the greatest measure of trust responsibilities toward Indian people.
(5) Questions R~elating to Courts-Jn the period between 'Worldi 'War I and 'World 11War 11, the firm belief that the established federal and state, court systems were inadequate for accommodating the unique situation of'Inidiqn people with any clear prospects for justice in either criminal or civil matters was,6xpressed by leading fig-ures in the Congress and by several national Administrations.





30

Some extremely serious charges and complaints have been voiced against processes and philosophies employed in the State Courts in the handling of issues having impact upon Indian rights. The Task Force review of the establishment of the Indian Claims Commission, and its subsequent history, also produced some very disturbing implications relating to manipulations and suspect motives in the prosecut ion of cases.
(6) Relations withb the President.-The Presidential role in Indian affairs was the most domninating' role throughout most of the first century of the United States' existence. The proposal for a cabinetlevel Indian Department Secretary is partly premised upon a view that a Presidential presence in the conduct of Indian affairs on a continuing basis is once again essential toward oivi co*eesb stance to any .national commitment for ensuring Indian people a future in America. If elevated to thiat level. a minimum period of ten years should be tried in the undertaking before any reduction in executive level by reorganization might be allowed. D. Trust Relations Beyon~d the Indian Reservations
Strong authority exists that a, trust responsibility extends to Indian persons in migration or mobility away from their reservations and remaininog members of their Tribes. E. Trust Responsibilities and Economic Rlesaurces
The performance record of the Department of the Interior and Bureau of Indian Affairs in tackling the trust responsibilities and legal obligations involved in the management and control of tribal and individual Indian economic and natural resources presents some very dismal and distressing information. On the other hand, some of the most exciting and promising activities within the general Indian community today can be found within the resources management and economic development field.
It seems certain that there have been many artificial barriers ,,established for the purpose of obstructing the natural advancement and sensible economic development of Indian reservations and communities. As Indian Tribes generally have been drawn into a state of increased or increasing negative economic dependency upon the United States, other interests have been deriving the primary economic benefits from Indian resources. Direct economic assistance to Tribes has been modest, however, while most poposals for "massive aid" have called for delivery by indirection.
While the problems of permanent unemployment and uinderemployment remain among the most serious of those facing Indian communities-with the number of jobless Indians increasing each year as on incident of population growth-the lack of employment opportunities in many respects has been induced by federal control over Indian people and properties, and by decisions at odds with the fundamental standards of the federal trust responsibilities. In the case of most 'Tribes and Indian Reservations, the remedial actions requiire extremely conscientious federal treatment, and relationships no less demanding than the best which might be accorded any "developing nation" of the world.



























SECTION II
THE PEOPLE AND A WEALTH OF THE AMERICAN LAND












SECTION II
This Section relates Indian population distributions, and tribal land and economic resources, to other populations of the United States inl their economic development.. Future public policy philosophies are discussed in the context of inter-relationships between Indians and other populations, and from the standpoint of comparisons in budget commitments.

INTRODUCTION: THE PEOPLE A-ND A W~EALTHI OF AMIERTCA.N LAND
In a 1942 article for the Georgetown Law Rleview, Felix S. Cohen, the respected authority on legal matters relating to American Indians and American Government, wrote:
To trace the origins of our Federal Indian law is a difficult task. The law of the United States with respect to Indian -tribes is a curious historical patchwork in which may be found the product of many looms and many weavers. One may divide this strange patchwork into its component patches and find nearly four hundred federal treaties with Indian tribes, about four thousand federal statutes, and an even larger number of judicial and administrative decisions which, by and large, attempt to interpret and to, apply these treaties and statutes.
This task is no less difficult in 1976. The legal patchwork has become more complex in the intervening years. Hundreds of new laws affecting Indian people have been enacted, and thousands more administrative and judicial decisions have been rendered. Several different national policies have been directed toward Native Americans in the interim period, producing a diverse range of impacts and varied results. While the number of treaties between the United States and Indian tribes has not changed. the numbers of unsettled issues involving rights and resources secured by treaties has increased.
It has been common to refer to "Federal-Indian relations" in terms of a special and "unique relationship," even while wondering what are the attributes or characteristics of that relationship. Similar references and questions are evidenced with respect to matters of "trust relations and trust responsibilities" and to "treaties and treaty relationships." Vague or abstract notions and indefinite answers about the character of these relationships, and their requirements upon the conduct of public -policy, have permitted Federal-Indian relations to assume a variety of forms, while committing public policy to broad fluctuations and insensible applications. When firm understandings or explicit definitions have been framed for construing the nature of the Federal-Indian relationship, additional imagined and real problems have frequently been interposed to operate ag'aintaycsiet p plication of policy or practice. ntaycnitn p
For most Americans, the United States has ever been and remains a "land of opportunity." According to a survey reported by the international Oreanization for Economic Cooperation and Development, the United States ranks, third behind Switzerland and Sweden as the
(33)





34

wealthiest income earning nations in the world, in terms of per capita income. According to the OECD, "per capita income in the United States in 1975 was $6,600 compared to Switzerland's $6,970 and Sweden's $6,880." By comparison, the annual median family income for all Indian people in the United States for 1969 was only $5,832, with half the Indian families-not individuals-relying on total incomes of less than that amount.
In latter 1975, the "population clock" of the U.S. Census Bureau regi stered the count of the national population at 215,000,000 people. In June 1970, the U.S. Public Land Law Review Commission had this to say about the national history and the advancement of prosperity for the people:
In the 100 years after the United States became a Nation, it was presented with an unparalleled opportunity by the acquisition of lands. Seven of the original states ceded their western lands to the Federal Government. These lands generally included those between the original states and the Mississippi River. Following this, the acquisition of the lands between the Mississippi and the Pacific Ocean and finally the acquisition of Alaska in 1867 provided the United States with a vast area of largely unsettled lands that in the main had not been committed to private ownership or use. The acquisition of these lands and the desire to dispose of them to encourage settlement of the West took place just at the time that the railroad was making it possible to open these lands to settlement and use. And the lands generally were rich in resources and producive for farming so that it was possible to settle the West. The policy of making these lands available to those who would develop them must be judged as highly successful. In good part because of this policy, the United States now has the highest standard of living of any nation on earth.
Not ithstanding that procureinent of success without parallel in the experience of mankind, there is also truth in the June _8, 1976. statement of Pennsylvania's Governor Milton J. Shapp that : "If one thing is clear, it is that equal opportunity in this land of freedom has somehow evaded the first Americans."
There are more than 500 Indian tribes and Alaskan native villages in the U)nited States. The "stark conditions" of native people as being the most poorly fed and housed citizens of the country, while suffering the worst health of any racial group, have been described in innumerable reports and statements issued from the Executive and Congr.essional branches of government in recent years. It scarcely requires repeating that American Indians are burdened with the most negative economic, education, and employment rates or statistics of any race, taken collectively, in the nation.
On Census Day 1970. the Native American population in the United States was counted as including 763,594 people. Eighty percent of these were identified as "belonging to a tribe" o~f Indians by the persons providing information to the census takers, who relied upon a system of "self-identification" for compiling, information on racial background. This census included 7.282 Indians from Canada, Mexico. and Latin America. Within the total Indian census population, "477.000 lived on or near reservations and were recognized as eligible for Indian services by the Federal Government."
A concentrated population comparable to the national Indian census population can be found in Washington, D.C. The mid-1975 resident population for the District of Columbia was estimated at 721,800 persons, of which 559,100 were determined to be "non-white persons."





35

According to the Statistical Services Section of the District g('vernnment, figures onil the number o. black citizens were niiot readily available, but could be calculated by "subtracting the non-black port ion of the non-white populat ion"-which approxmiated onwe percentage in 1970-to form an estimate of there being 451,900o black people in Washington, D.C.
The operating budget for the home-rule government of the District of Columbia for Fiscal Year 1976 amiounited to $1.042,142,700 from Federal and District revenues. The operating budget request for Fiscal Year 1977 is for $1.092.280.900. According to the Bureau of Indian Affairs ( BIA) and the Office of Management and Budget (OMB), the curriiient budget level in federal funds being appropriated to its agendcies in the name of Indian programs and activities amounts to about $1.403,000,000 per year.
Both this latter figure and its categorization as "Indian funding" has been challenged from several quarters as being inaccurate. As previousI V noted, somewhat less than a half million Indian persons are "recognized as eligible for Indian services by the Federal Government," whatever the actual amounts being expended. Furthermore, "eligibilit y" does not denote an actual receipt of services or funded assistance, nor imply its entitlement or availability, to native persons within the "ei uible" category.
From the approximate $400 billion currently planned for expenditure under the Fiscal Year 19,77 federal budget, the 1970 census and the above Indian eligibility figures alone indicate that a minimum of 85.000 Indian persons will not be "eligible for Indian services by the Federal Government" under that record national budget. This number of "ineligible Indians" is undoubtedly conservative, if the February 9, 1976. letter to the Task Force from Michigan's Governor William G. Milliken may be regarded as a reliable guide for gauging the actual needs. The Governor stated:
I have previously expressed a desire for the federal government to review its Indian policy in light of the fact that 27,000 Native American Indians are currently ineligible for federal programs designed to serve them.
Governor Shapp's later address in June to Indian representatives from across the nation echoed that concern through his declaration that:
The problems of the American Indians are not being solved by our present national policy. In the Bicentennial year, this Nation's leaders must find a new way to right the wrongs committed against our first Americans.
Actually, the U.S. Census Bureau disputes the figures of the Indian population referred to by Governor Milliken: and, Indian organizations and tribal representatives contest many of the Census Bureau's population counts of Indians in many cities, rural areas, and reservations. The fact is that many Indians who are counted, whether eligible or ineligible, are not served by federal or local programs.
The federal administrative processes for accounting $1.403 billion in present federal expenditures to "Indian spending" perhaps can be better understood, if not discredited, by reviewing the results when the same processes are applied to the seven Western states whose 1970 Census populations ranged in numbers below the total national Indian population:





36

(1) Alaska: Population. 300.000: Received $1.326,800,000 in federal dollars in Fiscal Year 1975: Received $4,422 in federal dollars for every person in the State. after having paid only $1,815 per capita in fe(leral income taxes.
(2) Idaho: Population. 713.000; Received $1,140.899,000 in federal dollars in Fiscal Year 175; Received $1,600 in federal dollars for every person in t1whe State, after having paid only $1,236 per capita in federal income taxes.
(3) Montana: Population, 694,000: Received $1,.163.941,000 in federal dollars in Fiscal Year 1975; Rleceived $1,677 in federal dollars for every person in the State, after having paid only $741 per capita in federal income taxes.
(4) Nevada: Population. 489,000; Received $933.120,000 in federal dollars in Fiscal Year 197,5; Received $1,908 in federal dollars for every person in the State, after having paid only $1,437 per capita in federal income taxes.
(6) South D)akota: Population, 666,000; Received $984,837,000 in federal dollars in Fiscal Year 1975; Received $1,830 in federal dollars for every person in the State, after having paid only $886 per capita in federal income taxes.
(6) South D)akota: P1opulation. 666.000: Received $94,837,000 in federal dollars in Fiscal Year 1975: Received $1,478 in federal dollars for every person in the State. after having paid only $713 per capita in federal incomine taxes.
(7) Wyoming: Population. 332.000; Received $604,808,000 in federal dollars in Fiscal Year 1975: received $1,821 in federal dollars for every person in the State. after having paid only $1,037 per capita in federal income taxes.
Other Western states having substantially larger total populations, but also including sizeable Indian populations, likewise are found to have been on "the federal dole" for reason of having received considerably more funds in total federal outlays in FY-1975 than their citizenries and business communnities supplied to the nation in tax revemnues. California. by this accounting, "received" $8 billion more in federal expenditures than it paid in taxes. Arizona received almost $2 billion more from the federal government than it provided in taxes to it: New Mexico. more than $2.5 billion. Washington State's federal )onus amounted to slightly less than $3 billion, having received $2,086 for every person in the State after paying only $1,255 per capita in federal income taxes.
The deficit federal expenditures over revenues from these latter four states alone amount to more than $15 billion, or enough to finance ten years of federal "Indian spending" at the purported current rate of $1.403 billion annually. However, the determination and accounting of these total "federal outlays" are filled with many fictions.
On the other hand, the tax revenues produced for the federal treasury by the respective states clearly are more accurate and are subject to verification. In the case of Pennsylvania, more than $17 billion dollars were paid into the Internal Revenue Service from that Commonwealth. This was more than $2.5 billion greater than the amounts the Federal government claimed to have expended in, to, or for, Pennsylvania. New York's contribution of the same nature was slightly less than that amount.





37

In Michigan, however, where Governor iMilliken has actively sought the acknowledgement and assumption of federal obligations for Indian people in that State, and met federal resistance, the people of Miclhigan in FY-1975 paid more than $5-) billion above the amount that was returned to then in claimed federal outlays. 'Ilat contribution to the U.S. Treasury was exceeded only by the State of Illinois, whose l)(p11lation paid $7.5 billion more in federal taxes tlian ere returned III outlays. Federal services have been restricted for, or deniedd to, iiiany of the more than 10,000 Indians residing in Illinois.
With respect to all the states discussed above, it should be noted that claimed expenditures for Indians are included in the designated fedIeral outla3s. Likewise, federal taxes paid by Indians are included iM the revenue amounts paid to the U.S. Treasury.
The population growth of the United States has bad decisive impacts upon the formulation and conduct of national Indian policy in the past, and can not be ignored as a factor for consideration in addressing the future. The "acquisition of lands" to provide "an unparalleled opportunity" for an American population of 215 million people, as reported by the Public Land Law Review (7onimission, had tremendous impact upon all Indian tribes and people. In establishing the 50 States of the Union, the 2.2 billion acres of land within the United States were either directly or indirectly secured from Native American people, including the native Hawaiians.
The Public Land Law Review Commission focused its attention on the one-third of the nation's lands which remain in federal ownership. Ironically, in formulating policy recommendations for the future of these 755.3 million acres of territory, their final report noted that the federal lands "cover an area equal to the size of Indian." In detailing its assignment from the Congress, that Commission explained that 'only Indian reservations were excluded from consideration." The Report offered this added detail at its fifth footnote:
The United States holds legal title to Indian reservation lands for the benefit of the Indians. A body of law has developed for these lands wholly separate from those commonly termed public land laws. For these reasons, Indian reservations were specifically excluded from the Commission's study by the Act establishing the Commission.
These lands comprise approximately 2 percent of the territory within the United States. The Indian trust lands total an approximate 53-million acres, not including the 40-million acres of additional lands reserved, upon certification of selections, to the ownership of Alaskan Natives by their territorial claims settlement with the United States in 1971.
In his publication of the Wealth of Nations in 1776. Adam Smith discussed how the Native American people had come to be mistakenly known as "Indians," in a preface to predictions of unprecedented prosperity for the established colonies and new American States.: But the countries which Columbus discovered, either in this or any of hi. subsequent voyages, had no resemblance to those which he had gone in quest of. Instead of the wealth, cultivation and populousness of China and Indostai., he found, in St. Domino, and in all the other parts of the new world which he ever visited, nothing but a country quite covered with wood, uncultivated, and inhabited only by some tribes of naked and miserable savages. Ile was not very willing, however, to believe that they were not the same with some of the countries described by Marco Polo, the first European who had visited, or at least






38

bad left behind him any description of the East Indies: and a very slight reseni1)I)ne(\ such as that which he found between the iiaie of Cibao, a mountain in St. ,,mingo, and that of (ipango, mentioned by Marco Polo, was frequently sufficient to make hii return to this favourite piopossesion," though contrary to the clearest evidence. In his letters to Ferdinand and Isalbella, he called the countries which he had discovered, the Indies.
In evaluating the "Causes of the Prosperity of the new Colonies," Smith expressed these views:
The colony of a civilized nation which takes possession either of a waste country, or of one so thinly inhabited, that the natives easily give place to the new settlers, advances more rapidly to wealth and greatness than any other human society.
But there are no colonies of which the progress has been more rapid than that of Ihe English in North America.
Plenty of good land, and liberty to manage their own affairs their own way, seem to be the two great causes of the prosperity of all the new colonies.
In his famed treatise on economics of commerce and nations, Smith was greatly symn pathetic to the increasing pressures for an American separation or independence from England, and certainly was a harsh critic of the English economic policies toward the American colonies. But, as seen in the statements below, he was also critical of the treatment accorded the native inhabitants of the American continents from Columbus' time and onward:
In consequence of the representations of Columbus, the council of Castile determined to take possession of countries of which the inhabitants were plainly incapable of defending themselves. The pious purpose of converting them to Christianity sanctified the injustice of the project. But the hope of finding treasures of gold there, was the sole motive which prompted to undertake it.
The policy of Europe, therefore, has very little to boast of, either in the original establishment, or, so far as concerns their internal government, in the subsequent prosperity of the colonies of America.
Folly and injustice seem to have been the principles which presided over and directed the first project of establishing those colonies; the folly of hunting after gold and silver mines; and the injustice of coveting the possession of a country whose harmless natives, far from having ever injured the people of Europe, had received the first adventurers with every mark of kindness and hospitality.
Although adjudging the policies of England as being "only somewhat less oppressive than that of any of the rest" of the
European nations, Smith declared that:
The colonies owe to the policy of Europe the education and great views of their active and enterprising founders; and some of the greatest and most important of them, as far as concerns their internal government, owe to it scarcely anything else.
However, it was Smith's admiration of the vomicg statesmen and intellecutals emerging upon the scene in pre-Revolution ary America which made him confident that the native people might be accorded some economic justice in a future time. He optimistically concluded:
The discovery of America, and that of a passage to the East Indies by the Cape of Good Hope, are the two greatest and most important events 'recorded in the history of mankind. Their consequences have already been very great: but, in the short period of between two and three centuries which has elapsed since these discoveries were made, it is impossible that the whole extent of their consequences can have been seen. What benefits, or what misfortunes to mankind may hereafter result from those great events, no human wisdom can foresee. By uniting, in some measure, the most distant parts of the world, by enabling them to relieve one another's wants, to increase one another's enjoy-






39

inents, and to encourage one another's industry, their general tendency would seem to be beneficial. To the natives, however, both of the East and XWest Indies, all the commercial benefits which can have resulted from those event., have been sunk and lost in the dreadful misfortunes which they have occasqioned. These in isfortiintes, however, seem to have arisen rather from accident thain from anything in the nat ure of t hose events themselves. At the part iclhir time when these discoveries were made, the superiority of force happened to be so great on the side of the Europeans, that they were enabled to commit with impunity every sort of injustice in those remote countries. Hereafter, perhaps, the natives of those countries may grow stronger, or those of Europe grow weaker, and the inhabitants of all the different quarters of the world may arrive at that equality of courage and force, which, by inspiring mutual fear, can alone overawe the injustice of independent nations into some sort of respect for the rights of one another.
Two hundred years later, history has vindicated Adam Smith's judgments regarding the potential future, wealth, and prosperity of the colonies which were to become known as the United States of America. Resources, wealth and national productivity, however, have not satisfied the wants or needs of the native people who were in first possession of its lands. A summary of past growth and future population projections of America was stated in the chapter, "Demographic Changes and the Legal System,"" b.y Professor Philip ]M. Hauser, Director of the Population Research Center at the University of Chicago and a former member of President Harry S. Truman's Council of Economic Adi-isors, when proposingr a Bill of Rights for an American urban society in 1975:
From 1790 to 1950 the population of the United States doubled five times, increasing from less than 4 million, as recorded in the first census, to over 150 million as recorded in the seventeenth decennial census in 1950. The first three doublings each required approximately twenty-five years: the fourth doubling occurred during the first half of this century. In 1970 the census recorded a population of 205 million. It is still possible, despite our present depressed birth rate, that the United States will achieve a sixth doubling to 300 million persons, if not by the end of this century then shortly thereafter. The Bureau of the Census gives as possible total population in 2000 a range of figures from 250 million to 300 million. This range in future population, mainly by reason of the unpredictability of the birth rate, could result in a population increase of from. 38 to 87 million persons between 1975 and 2000. IThe promise of opportunity has been fulfilled for a multitude of new immigrants into the country, and their progeny as well. In affecting the population growth of the nation, the process has drawn heavily upon the bounty of its resources. Yet, doubtlessly, immigration has contributed immeasurably to the national productivity and wealth, from which waves of immigrants benefitted before adding, in their turn, their own new dimensions to the promises of opportunities for other citizens and new generations. Professor Hauser provides the following information on past immigration impacts:
From, 1820, the date at which the federal government first began to count immigrants, through 1973 some 46.3 million persons came to this nation, mainly from Europe. The, high point in immigrations was reached during the first decade of this.,century when about 8.8 million immigrants were admitted. The flow of immigrants greatly diminished during World War I. Under present statutory provisions, immigration is generally restricted to a maximum of about 400 thousand persons per year and in recent years has averaged something between 300 thousand and 400 thousand persons annually.
Oddly, the greatest loss to Indian tribes of land masses reserved to them by law during the last century coincided in time with the largest





40

influx of new immigrants during the same period. Settlements upon these lands, however, was severely restricted in availability to the new arrivals. They were freely available for acquisition by naturalized and born citizens nonetheless.
Significantly, the number of annual new entries into the national population by immigration, counted for any single year at its highest level in the past decade, has been roughly eqIual to the cumulative or lifetime, resident Indian service population of the United States. At its lowest level, the immigration count has been comparable to the remainder of American Indians who have been regarded as being "ineligible"' for federal program assistances and services altogether. And while the total Indian census population only slightly exceeds the total of 718,000 illegal aliens who were expelled from the country in 1974. the actual Native American population is but a fraction of the number of "illegal aliens" estimated to be living permanently in the United States.
The point of some of this population data is that the United States has, and must. sustain a viable life in the fiiture for many millions more people than the 215 million who now populate its territorial land and resources base. But additionally it addresses the point that the nation should be able, and find it readily in its capacity, to afford a viable life and future to less than a million, or as many as a million, Native Americans in the land. However, reciting the facts of Indian poverty in the present era does not serve to distinguish Indian people from millions of other Americans in this country.
Government economists have estimated that 24 million Americans other than Indian people, or more than ten percent of the national population, were poor in 1974. That many fell below the so-called Orshansky index of poverty, the formula adopted by the Office of Management and Budget (0MB) in 1969 as the official measure of comparative poverty.
It is not an unfair assumption to believe that some few million of these non-Indians are as equally poor by any measure. and often more so, than are the less than half million American Indians who reside within the poverty classification. In fact. perhaps while being fair statistical representations. the often stated litany of Indian poverty may partially obscure, or aid in the misrepresentation of, the intensity and severity of poverty conditions afflicting the lives of greater numbers of people within each the white, black. Chicano. and Puerto Rican populations of America. Thus, the negative superlatives used to describe the intolerable conditions of the collective Indian community are less informative to a quantitative analysis of poverty in America than they are an indication that deprivations and adversity have remained more uniformly distributed, or settled and unbreached, within the Indian population than in others.
The national conscience should not accept maladministration of governmental service delivery systems which, for example, address the health problems of a heavily populated Indian reservation by treating the malnutrition of an Indian baby upon finding that its body weight at six-months of age is less than it was at time of
birth. Nor should it ignore the health requirements of a young white child of Appalachia whose dietary deficiencies and recurrent starvation introduce such high-level pain to lier teeth that it becomes toa





41

painful to eat when there is food, or to sieep, or to do much of anything other than cry, or to try to sleep both day and night as a me(_ans of escaping the pain. Rational public policy can not be founded up1)01 choosing to aid in one case at the expense of the other', either on grounds that one is of the majority race, or that the, other's race is poorer. Unfortunately, present policy does not preclude a denial of aid to any such cases, or assure its provision.
In contrast to other racial populations, the poverty among Indians has not been materially distorted in statistical appearance by the development of a stratified society of distinct classes to include the wealthy or super rich, upper middle-class to lower in iddle -cl ass. aii the omnipresent poor who may suffer in the shadow of the statistical well-being of the overall society. Recent, governmental actions, to erasethat distinction by establishment and the favoring of a "cream of the crop Indian elite"' will be discussed elsewhere in this report. (Certainly, the dichotomy and differences between Indians and other people in the United States must be drawn, or explained, upon soin basis other than the fact that most Indian people are. "poor."
The distribution of Indian people in the nation is important toward understanding some of the problems. Of the eighteen states havingan Indian population of more than 10,000 persons, the 1970 census indicated as follows:
1. Oklahoma---------------96,830 10. Minnesota ---------------- 22. 3222. Arizona ------------------ 94,310 11. Wisconsin ---------------- 18, 7T76
3. California ---------------- 88, 263 12. Texas ------------------- 16, 9211
4. New Mexico ----- ---------71, 582 13. Alaska ------------------- 16, 080
5. North Carolina--,--------- 44, 195 14. Michigan ----------------- 16. 012
6. South Dakota ------------ 31, 043 15. North Dakota ------------ 13, 56;--)
7. Washington --------------30, 824 16. Oregon ------------------ 13, 210
S. Montana ----------------26,1385 17. Ftah -------------------- 10. 151
9. New York ---------------- 25, 560 18. Illinois ------------------ 10. 304
The following are, States which counted fewer than 1,000 Indian persons among their populations in 1970:
1. Vermont -------------------------------------------------------- 229
2. New Hampshire --------------------------------------------------:361
3. Delaware----------------------------------------------------- 6"6
4. West Virginia --------------------------------------------------- 51
There were also 956 Indians counted as residents of Washingrton, D.C., being from Indian tribes from throughout the U~nited States;. and mainly being employees o~f federal agencies, primarily the Bureau of Indian Affairs and the U.S. Public Health Service's Indian Division.
The 1970 Indian population by census within other states. not named above, which comprised the original thirteen States of tie, Nation, were shown to be:
1. Rhode Island --------------- 1, 390 6. Maryland ----------------- 4. 23!)
2. Maine1--------------------- 2, 195 7. Massachusetts ------------- 4, 475
3. Connecticut ----------------2 222 8. New Jersey --------------- 4, 700
4. South Carolina ------------2.,241 9. Virginia ------------------ 4, 853
5. Georgia -------------------- 2, 347 10. Pennsylvania---------------5, ;-)3 -,
ILMaine, of course, was not one of the original thirteen states. It is Included here inas-much as it was formed In major portions of Its land base by cession from Mlassaehusetts. Some other states, not listed above, were formed in part through other land cessilons fromn the original thirteen states also.
The 53-million acres of Indian trust and reservation lands are, located in 26 different states, ranging in cumulative acreages from
78-127-76-----4






42

262 acI('s ill Louisiana to 1 9.8-.1) 117 areis ill Arizolla. Addtitioal lands aiid ieservt ions are locate(l in a few ad(ditiojlal states, suich as Maine and New York, but have been classified in the past as "State Indian Reservations," or not generally considered as being "under the jurisdiction of the federal Bureau of Indlian Affairs." Generally, Indian lands are either owned bY the tribes or by individual Indians iti seJ)lrate allotments. Some, reservations have both tribally-owned and individually-owned lands within their tribal domains.
The following list shows the Indian tribes or reservations, as well owned lands:

Tribe or reservation, State A ores
1. Navajo, Arizona -------------------------------------------- 13, 345, 312
2. Papago, Arizona ------------------------------------------ 2, 814, 871
3. Hopi, Arizona ---------------------------------------------- 2, 474, 254
4. San Cralos, Arizona --------------------------------------- 1, 53, 841
5. Wind River, Wyoming ------------------------------------- 1, 664, 872
6 Fort Apache, Arizona ------------------------------------1, 776, 136
7. Hualapai, Arizona ------------------------------------------- 991, 680
8. Uintah and Ouray, Utah ------------------------------------- 990, 085
9. Colville, Washington ----------------------------------------- 958, 027
10. Cheyenne River, South Dakota ---------------------------------911, 467
11. Yakima, Washington -------------------------------------- 842, 978
12. .icarilla. New Mexico --------------------------------------- 742, 315
13. Red Lake, Minn -------------------------------------------- 564, 426
14. Flathead, Montana ---------- ------------------------------- 562, 277
15. Ute Mountain, Colorado ---------------- --------------------- 557,878
16. Warm Springs, Oregon -------------------------------------- 480, 196
17. Pyramid Lake. Nevada -------------------------------------- 475, 086
18. Mesealero, New Mexico -------------------------------------460. 384
19. Laguna Pueblo, New Mexico ---------------------------------412, 211
20. Rosebud, South Dakota ----------------------------------- 409, 321
1 The Navajo Reservation Is located within the four States of Arizona, New Mexico, Utah. and Colorado. The above total includes so-called off-reservation Navajo lands in Arizona and New Mexico.
Both the Navajo and Hopi tribal land totals above apparently include acreages involved in the so-called Joint Use Area, as well as disputed land areas formerly claimed by each tribe.
The Indian Reservations having the largest acreages of individually owned or allotted lands are similarly shown on the list below. Several were included on the preceding list of twenty reservations having the most tribally owned acreage.
Tribe or reservation, State Allotted acres
1. Crow. Montana ----------------------------------------------1, 209, 949
2. Pine Ridge, South Dakota -------------------------------------1 157, 338
3. Blackfeet, Montana ------------------------------------------- 775, 413
4. Navajo, Arizona ----------------------------------------------722, 854
5. Fort Peck, Montana ------------------------------------------645, 114
6. Standing Rock, North Dakota ----------------------------------542, 700
7. Rosebud, South Dakota ---------------------------------------- 540, 112
8. Cheyenne River, South Dakota --------------------------------503, 483
9. Fort Belknap. Montana ---------------------------------------427, 580
10. Fort Berthold, North Dakota ----------------------------------372, 259
11. Yakima, Washington -------------------------------------------247,988
12. Fort Hall, Idaho ----------------------------------------------- 257,666
13. Comanche-Kiowa, Oklahoma ----------------------------- 2-29, 926
14. Osage, Oklahoma --------------------------------------2------- 16, 9.94
15. Northern Cheyenne, Montana ----------------------------------- 171, 298
16. Choctaw, Oklahoma ----------------------- ---------------------134,296
17. Quinault, Washington ------------------------------------------124, 279
18. Wind River, Wyoming ---------------------------------------- 109,334
19. Sisseton, South Dakota ---------------------------------------- 105 172
20. Gila River, Arizona ------------------------------------------ 97, 467





43

Both the tribally owned hinds and the individually owied allotted lands listed above'are held in trust by the goveiiiient of the Unte(< States for the benefit and use of their Indian owners, as are the lands of other tribes and tribal members not listed here. The significance of this "trust status and relationship" will be explained at length in another section of this report. In brief, the administration of this trust for the management and control, superintendency and care, of these landed properties themselves has been vested with, or entrusted to, the U.S. Secretary of the Interior, and the Commissioner and Bureau of Indian Affairs, bv the legislative acts of Congress delegating that authority and responsibility.
In part, it is the status and character of Indian lands which forms a unique relationship between the people and government of the United States on the one hand, and the Indian tribes and people on the other. But equally important to the establishment and maintenance of that unique relationship and its character are the attributes of Indian people themselves, their cultural and political existence as self-governing societies, and the evolvement of the Indian heritage and history.
In approaching an examination of the history and development of Federal-Indian relations, it is appropriate to review briefly the present and past usage of the term itself in the context of the Federal-Indian law which has governed national Indian affairs.
Under an Act of July 9. 1832. the Congress of the United States assigned a general authority to the Commissioner of Indian Affairs for administering governmental concerns relating to Indian tribes and people. As presently codified in the United States Code, Title 25, at Section 2, that law now reads:
The Commissiover of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, hare the management of all Indian affairs and of all matters arising out of In dian relations.
The position of Commissioner of Indian Affairs itself had been established previously by federal law on January 24, 1823. This action followed congressional protests that the title had been conferred upon 32 year-old Thomas L. McKenney in 1816 on appointment by Secretarv of War John C. Calhoun without lawful sanction or legal creation of the position. The Indian Commissioner, which replaced the predecessor Superintendent of Indian Trade, operated within the War Department, where the office remained until creation of the Department of the Interior in 1849.
Congress enlarged the authority of the President for acting with greater scope and flexibility in Indian matters, and consequently broadened the powers which might be delegated or exercised by an Administration's Indian Commissioner, when providing for the "organization of the department of Indian affairs" by its Act of June 30, 1834. The 1834 lecrislative measure also remains operative in the codified federal law of 1976. at 25 U.S.C., Section 9:
The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for
-the settlement of the accounts of Indian affairs.
A summary review of Title 25 of the U.,S. Code of Federal Regulaf;ovs illustrates that these ancient laws have been transformed into a broad-ranged base of federal power over Indian people and properties.





44

The 197 edition of these federal regulations sets forth a number of categories of regulated subject matters which centrally rely upon the 1832 and 1834 federal statutes in citing a source of authority for their application. Sometimes additional laws of more recent vintage are cited as added authority, or to indicate a legal reason for acting in the matter.
Included within the C(FR regulations titled, Indians, are Interior Department -and Bureau of Indian Affairs regulations governing:
The use or development of any real or personal property, includivng water rights;
Law a(rd order on Indian Reservations, including Courts of
Indian Offenses;
Tribal enroll imenlts and compilations of tribal membership rolls,
as well as approval and appeal procedures for contested enrollment actions;
Responses to petitions from tribal voters for calling certain elections or changing tribal constitutios;
Off-reservation coninmerccW fishing, as well as certain on-reservation ishing activities:
MaIanagement, harvesting and selling of Indian timber and forest
lands resources;
(Grant;ing of leases and permits for use of Indian agricultural
lands own ed by tribes. individuals, and tribal corporations;
Disposition of individual Indian money accounts under the control of the government.
This abbreviated listing of administrative powers which may,. wrongly or rightly, be exercised over Indian people and properties represents only regulation categories which invoke the 1832 and 1834 statutes as a basis of authority. Some are narrowly limited in their app)lication, or are conditioned upon the emergence of specific circumstances for their employment; but others seemingly are unrestricted in their breadth of operation and in their claims of governing authority. Nonetheless all these are objects of or subject to the exercise of federal powers which are presently perceived to be within the sphere of "the management of all Indian affairs and of all matters arising out of Indian relations."
Being but a small part of the massive body of Federal-Indian law,. the "Indian relations" laws and regulations give only partial understanding of the nature of Federal-Indian relationships. While the. legitimacy of certain of the regulations is definitely questionable, thefact of their operation is the point for consideration here.
These statutory laws and administrative regulations begin to demonstrate the pervasive presence of federal control over Indian lives and communities. Also, they provide an important focal point for the study of the development of Federal-Indian relationships, and their various impacts.




























SECTION III
'TRUST RESPONSIBILITIES IN STATES OF CONFUSION

















SECTION III

This Section contains diverse current views on tbe origin
and. nature of the federal, trust responsibility to Indians, togethier with historical deterinant ion of these issues. Concurs with the concept~ of a literal trulsteeship that, is persoiial in nature, and which only second~arily concerns itself with property.
IlIlustrates duties of trustee.

TRUST REspo-NSIBILITIES IN STATEmS OF CONFUSION

On February 9, V974, the NKational. Tribal Chiairmnen's Association, under the direction of its former President, Governor Rlobert E. Lewis of Zunii Puieblo. declared that issues of federal trust resI)onsibil cities to Indian people constituted the number one priority for aittent ion in public policy and in governmental actions. The NTCA statement descr'ibing their view of the nature of the trust responsibilities warrants 'lull recitation. It, said:
The Federal Government's trust responsibilities are threefold: First, there is a special relationship derived from the Constitution of the United States. various treaties, and statutes of the United States which recognizes tribal sovereignty. There is a trust responsibility in thle United States to protect this sovereignty of Indian Tribes, so there is no further erosion of tribal sovereignty and to support tribes in their efforts to enhance tribal sovereignty.
-Second, the trust responsibility of the United States should emphasize the protection of tribal assets and allow the Indian owners to assume the major role in the management of their funds and natural resources,. The trustees should spend less time and energy protecting these resources from their Indian owners and more time protecting them from outside interests, including the Federal Government itself.
And third, flowing from the above there is a trust responsibility for providing the means by which the tribes can provide community services to the members of the reservation communities.
Inherent in the protection of Indian assets in accordance with the trust responsibilities of the United States is an obligation to fully, vigorously, and without reservation, advocate the position of Indian Tribes when their assets are threatened no matter what the source of the threat. In order to do this the responsible government officials of the United States must be charged fully with this responsibility and must be freed of any constraints on full and vigorous advocacy. The efforts to eliminate or minimize the conflict of interest of the Federal Government is laudable. However, everything that could be done to eliminate or minimnize the conflicts of interest under existing law has not been done.
Thus, NTCA has adiudzed that the trust relationship) is derired from the Federal Constitution, as, well as treaties and statutes effected under its provisions. That organization identifies three basic functions or obligations of the federal trust responsibility: (1) Protection and support of tribal Sovereignty; (2) Protection and proper management of Indian resources, properties, and assets; and (3) Provision of community and social services to Indian people, or tribal members.
This report section will assess the validity of these expressed beliefs, as well as other views which have stood in contradiction to them, or
(4T)






48

wh17ich have been ini partial disagreement with any of the perceived obligations attributed to the trust responsibilities, treaty rights, or other law.
Several of the divergent opinions relating to the origin and developmnent of the trust responsibility concepts are set forth below. Trhe first, in disagreement with NTCA with respect to provisions for social services and programs, was prepared by the Interior Solicitor's office in early 1.973. On March 7, 1973, career Interior Department employee Newton Edwards characterized its formulation as "the best statement I have seen of what constitutes the Secretary's Indian trust responsibility." The pertinent extracts read:
The~ phrase "trust responsibility of the Secretary" is not only generally misunderstood and misapplied, but also undefined in any treatise or statute. It has ain emotional meaning when used by Indians and their advocates but it also has a legal meaning. It is generally used in two broad contexts: in connection with Indian lands and governmental social programs, but only with respect to the lands and related property is the phrase appropriately applied.
1. Indian lands.-Certain Indian lands, mineral resources, and water rights, put in Indian ownership by treaty or statute, and income derived therefrom are heldl iii trust by the United States for the benefit of the Indian Owner, whether it be a tribe or an individual. This "trust" relationship between the Secretary an(I the Indian owner is similar to that between a bank which has been named trustee under a trust agreement and the b~eneficiaries of the trust. A distinguishing feature of the Secretary's responsibility, however, is the manner in which h1e exercises it. That is, his decisions are made not unilaterally but in conjunction with the Indian beneficiaries. The responsibilities of the Secretary in this connection are well defined in the common lawv and can generally be said to impose a high degree of care upon the Secretary in the handling of these trust properties. Without Congressional consent, the Secretary may not turn these responsibilities over to others, including the Indians themselves even though the Indlians may be necessary participants in the actions taken. * *
2. Social programs.-Because of the exclusive power under the Constitution to reg-ulate commerce with Indian tribes, the government historically has providled for the social needs of the Indian Tribes and their members. These programns, which continue today by way of specific statutes and annual appropriations, do no create any trust relationship in the strict legal sense of the word. Rather, such prog-rams are identical to other government programs which put upon the agency the responsibility to implement the program and insure that the funds are spent for the purpose for which they were appropriated. To the extent that this Department contracts with Indian Tribes with regard to the performance of a particular program, and in that connection turns over appropriated funds to the tribe, there remains in this Department a contractual right
-and a statutory obligation to insure that the contract obligations of the tribe
ar ulilei.e.. the funds are used for the purposes for which they were appropriated. In the context of social programs, therefore, no trust responsibility exists, the Secretary's responsibility for those programs being the same as it is for the non-Indian programs of the Department.
At first glance, the above statement appears to be an oversimplification of the trust responsibility in denying any, or all. relationships to social proaramns for Indians. This philosophy seemingly imposes tI)e highest obligations and performance standards -upon the Indians tribes thernselives., exceeding any obligatory requirements acknowledged for the Secretary in the administration of his trusteeship over Indian resources and property rights, or even in his letting of contracts to tribes. Implicitly, the widest discretion in acting in any manner is available to the Secretary for ill or good; Vet contract performoane and compliance can be compelled or enforced against the tribes. Standards should apply in both quarters.






49

Two months after issuance of the above memoranda, Messrs. Marvin Franklin, William Rogers, and Theodore Taylor, all assistants to former Secretary of the Interior Rogers C. B. Morton, prepared a departmental memorandum for 0MB Associate Director John C. Sawhill on the same subject matter. The 13-page, May 4, 1973, memo was written in response to OMB questions relating to a "proposed reorganization of the BIA Central Office" submitted by Director Sawhill on April 24. The departmental attitude on trust responsibilities was expressed in the section titled, "Comments on Indian Responsibility and Secretarial Responsibility," as follows:
"Self-determination" has been widely used without specific definition. This has led to a great deal of confusion.
Nobody is completely self-determining-the environment, social con trols through statutes, and various degree of dependency relationship exist for all peoples and all nations. When there Is a specific subsidation involved, the degree to which a given group can "determine" their actions and decisions is likely to be more limited than in instances where a subsidy is not involved. This is because the persons providing the subsidy generally want to be assured as to the effective use of the subsidy and may wish to indicate the purposes for which it is to be used.
Both Presidents Johnson and Nixon called for "self-determination" and the elimination of "paternalism"--both terms undefined.
(T)he Washington Post quoted an Indian from the Dakotas as saying that he could not lease or sell his land without BIA permission-saying that this was. undesirable, "paternalistic" action. However, it is the essence of the Secretary's trust responsibility.
If there is one thing that federal reservation communities agree on. it is this :The Secretary should retain trust responsibility for Indian land-tribal and individual. The drive for termination in the 1950's made clear the adamant opposition of'Indians to this policy. The exercise of a trust is paternalism. Indian leaders, government officials and the general public should understand that the Indian demands that the government continue its trust responsibility for Indian assets inescapably involves paternalism. The government has to approve proposed uses or disposition of the assets under its trust responsibility. To do otherwise i,; to violate the trust. If the Indians want to do otherwise-that is, have complete freedom for use of their assets-they should request legislation terminating the trust responsibility.
The Indians themselves and the general public need to do some clear, hard thinking on this subject. They should not be misled by loose phraseology (such as "self-determination" and "paternalism"), demagogic attempts to exploit the, general public sympathy for Indians (both on the part of non-Indian and Indian individuals), and the frequent tendency of all of us to simplify a complex problem and be tempted to believe that there is a "panacea" that will solve it simply and quickly.
This memorandum also illustrates that the solemn federal trust
responsibility might readily be undermined and mis-defined, when operating as a function of adverse attitude-or of personalities, piffle and pique. Fortunately, the approved "Realignment of Central Office. Functions and Responsibilities of the Bureau of Indian Affairs," directed by Secretarial Order No. 2954 on May 11, 1973, reflected a more detached view in providing its basic charge of obligations to the BIA's Office of Trust Responsibilities. The Order provided:
The Office of Trust Responsibilities performs Central Office functions related to the Bureau's trust and. legal responsibilities: (1) for- the protection of the rights of Indians in their trust property and those rights affecting trust property that are afforded by tribal autonomy; (2) for the exercise of the authorities vested in the Secretary of the interior by various laws concerning Indian trust property and for providing to Indians the services necessary for them to make decisions required 'of them in the application of these various laws'; and (3) for administration of programs established to facilitate the trust. The rights involved include water rights, land titles, boundaries, use, hunting and fishing rights, and





50

contractual rights; the rights afforded by tribal autonomy Include tax immunity or exemption and the right to regulate hunting and fishing, zoning and other land( use.
This later Interior Department document was issued publicly and, therefore, was subject to public scrutiny. It merely states an outline of activity categories in which the Trust Responsibilities Office of BIA will operate. It dToes not prescribe any standards of performance; leaves the nature of the trust obligations indefinite; and, pronounces nlo clear objectives to be sought or secured by either the operation of trust responsibilities or the conduct of public policy.
There is no convincingr evidence that the charge or assizcnment of f unctions cited from Order No. 2954- of the Secr'etary is any more controlling on departmental or Buriieau of Indian Affairs actions, or re,(ard, relating to trust responsibiIi ties than are the two other Interior IDepartment documents from 1973, quoted before it. On the other hand, there are, strono- indications that the Speretarv of Interior's Office, or the Department in general, has resisted the for-mulation of any formal or official "Definition of the TDepartment's Trust Responsibility to the Indians." Dr'afts of such "definitions" or legal analysis of the controlling obligations imposed upon the Secretary, as well as other Interior agencies besides the BIA, have been rejected repeatedly by the Interior' Secretary or the Solicitor (luring the past two adcministrat ions.
Thle purposes of rejecting any formal statement of obligations, performance standards, or basic definitions, can be many. The effect has been to permit the subordination of trust responsibilities to the intervelition of overriding political considerations when framing actions for particular situations; allowing other governmental agencies to undertake actions in utter disregard of the trust responsibilities; increasing the chances for other interests, in conflict or in competition with those of Indian tribes, to be improperly favored at the expense of Indian interests: and to allow both governmental officials and attorneys to act, or to recommend actions, without regard to any established or defined ethical considerations.
Two attorneys in the Department of the Interior and Bureau of Indian Affairs, Mr. William H. Veeder, and Mr. Reid P. Chambers, have written extensively on the issue of the federal trust responsibilities and each has produced a series, or several, legal analyses of the trust relationship. To a major extent, both writers are in substantial agreement with the position stated by the National Tribal Chairmen's Association in the beginning of this section; and, in their writings. are often in agrreement with one another. Several of the Veeder and Chambers opinions are shown below. The selections illustrate, in part, the confusion or uncertainty which continues to linger around
-the issue of trust responsibilities.
On January 18. 1974, Mr. Chambers. Associate Solicitor for Indian Affairs, submitted memoranda to the Interior Solicitor and Secretary regarding "the attributes and legal obligations encompassed within the Secretary of the Interior's trust responsibility to American Indians." He wrote:
But for a well established doctrine, the origins and scope of the trust responsibility are exceedingly murky. I1 conclude that the trust responsibility is basically derived from treaties with and statutes concerning the various Indian tribes,






51

.and (after the treaty making power was limited by Congress in 1871) from the later executive orders and agreements with Indian tribes. The legal effect of these treaties and agreements was the cession by the tribes of almost all lands which had been aboriginally used and occupied by them. Early case law and the executive practice of the federal government recognized that Indian tribes did possess a kind of legal title to those lands habitually possessed and occupied by them; consequently, treaties and agreements were necessary to accomplish the extinguishment of that title and opening of the lands to non-Indian settlement. A contrary notion, that Indians were mere tenants at will or sufferance of the United States and held no lawful claim to the lands they possessed, was definitely rejected by the Supreme Court in the early Cherokee cases.
Therefore ,the treaties and agreements represented a kind of land transaction, contract, or bargain. The ensuing trust relationship was a significant part of the consideration for the bargain offered by the United States.
This analysis and summary was not transformed into an official document to provide formal guidelines to the department. The summary statements relating to (1) "ordinary fiduciary duties ;" (2) "~conflict of interest problems;" and (3) "non-property aspects of trust responsibility: self-determination," are in agreement with the NTCA position declarations. Only weak support for the position of NTCA on sociall services" is found there, however.
In a September 19, 1968, memorandum relating to Indian forests mana geinent, William H. Veeder, then a Water Conservation and Utilization Specialist in the Bureau of Indian Affairs, declared:
By the Constitution, as acted upon by the Congress, construed by the courts, ,effectuated by the Executive Branch of the Government, the Nation entered into a trust arrangement with the Indians and Indian Tribes. It is an executed covenant acted upon by the Indians, who relinquished their vast domain in consideration for assistance from the Nation.
Stemming from the Constitution; subject to the principles of the separation of powers among the three great Branches of Government, the trust relationship partakes of the elements of a private trust arrangement only in the most general way. As distinguished from the private trust, the officials fulfilling the Nation's fiduciary obligatios to the Indians must look to the Constitution, the Congress which makes the laws and appropriates the funds, and to the courts which interpret the laws relating to the trust. They are, moreover, caught up in the milieu of politics-essential to a democracy.
In a study prepared for the congressional Joint Economic Subcommittee on Economy in Government, released January 18, 1970, Veeder ,asserted:
It is the Constitution which established the Nation's relationship with the Indians-the courts have interpreted it as constituting the Nation a guardian and the Indians the wards under a trust responsibility.
In 1972, Mr. Veeder repeated his thesis in a report to the U.S. Commission on Civil Rights relating to actions of the, Departments of Tustiee and of the Interior "in clear violation of the unique trust relationship established by the Constitution among the United States of America and the IndIan Tribes." One can note that Mr. Chamber's more recent examination of the "murky" origins of the trust relationShip was wholly silent with respect to the U.S. Constitution as its probable primary source.
As has been stated elsewhere in this report. federal courts in the First Judicial Circuit have recently ruled with respect to the Passamaquoddy Tribe of Maine, or "any Indian nation or tribe of Indians," that the First Congress of th~e United States established a trust relationship between the United States and Tribes by its enact-






52

ment of the Indian Trade and Intercourse Act, also known currently ,is the Indlianl -Nonn cus Ac.Ta c, -now codified at Title 25,
United States Code, Section 177, reads:
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the salme lbe made by treaty or convention entered into pursuant to the Constitution.
The sole issue in that case. it should be remembered, was whether or liot a, trust relationship had been created, ini fact, between the LUnited States and the Passamaquoddy Tribe.
Although the California case of Santa Rosa Band of Indians v. Kings County, decided November 3, 1975, lby the Ninth Circuit U.S. Court of Appeals, involved a different, issue of interpreting the statutorv construction of Public Law 83-280 concerning the scope of federal jurisdiction on Indian lands, it nonetheless regarded a discussion of' the trust relationship as being important to its decision. The court presented the following "backdrop" for reaching its decision:
To resolve that ambiguity in Public Law 280, we begin with the fundamental, postulate, enunicated in Worce'ster v. Georgia, sce 31 U.S. 393, that ambiguities in Federal treaties or statutes dealing with Indians must be resolved favorably to the Indlians.
It is an interpretive device, early framed by John Marshall's legal conscience. for ensuring the discharge of the nation's obligations to the conquered Indian tribes. The Federal government has long been recognized to hold, along with its plenary power to regulate Indian affairs, a trust status towards the Indian-a status, accompanied by fiduciary obligations. See Seminole Nation v. United States, 316 U.S. 286, 297 (1942) : United States v. Kaqaima, 118 U.S. 375 (1,886); Bceher v. WIcthcriy, 95 U.S. 517, 525 (1877) ; Cherokee Nation v. Georgia,. 30 U.S. (5 Pet.) 1., 12 (1831). While there is legally nothing to prevent Congress from disregarding its trust obligations and abrogatig treaties or passing laws inimical to the Indians' welfare, the courts, by interpreting ambiguous statutes to the DIdians, attribute to Congress an intent to exercise its plenary power in the mni-ner most consistent with the nation's trust obligations. See Squirc v. ('apociman, 351 1U.S. 1, 7-8 (1956).
Land held ini trust for the benefit of Indians bas long played the central role in Federal policy towards Indianis. Cohen, 8upra, at 94. 'While the manner in which trust property is held and may be used has been in part defined by statute, a great many of the most significant incidents of the trust property relationship are not statutorily created. but rather a result of judicial definition. The doctrine of Federal ownership of Indian land stems from .Johnson d Graham's Lessee v. M1crntoshl 21 U. S. (8 Wheat.) 240 ( 1823), which held the general government obtained title through the right of discovery exercised by colonial predecessors. The rudiments of the wardship or trust status of Indian tribes was announced in Cherokee Nat ion v. Georgia, supra, at 12-a consequence of Federal ownership of title to lands the Indians occupied. The exclusivity of Federal jurisdiction over trust lands, whether based on an ownership theory. United, States v. Kagaina, supra, or commerce clause theory, Worcester v. Georgqia, supra, was likewise recognizedl by Court decision. Most importantly for our purposes here, the immunity of Indiani use of trust property from state regulation, based on the notion that trust lands are a Federal instrumentality held to effect the Federal policy of Indian advancement and may not therefore be burdened or interfered with by the state, is a product of judicial decision. United States v. Rickert, 188 U.S. 432' (1903). Each of these judicially defined characteristics of Indian trust pro perty remained implicit in subsequent congressional, enactments dealing with trust property.
IThe preceding opinion' extracts demonstrate that the matter of federal trust responsibilities and relations to Indian people remains in a ponderous state of confusion. Judgments regarding the orio'ins of the trust relationship are f requently contradictory, and conclusions





53

definincy its nature as of ten are inconsistent. Nonetheless, one can find support in authority and evidence for each of the viewpoints-even those, reflecting the most negative attitudes. All contain elements of truth; all contain elements of incorrectness. It is evident, however, that the greatest imbalance against truth is carried in those statements of March and May of 1973 which generated in the Offices of the Secretary and the Solicitor for the Department of the Interioragents vested with administration of the most substantial trust responsibilities.
The Task Force study on trust responsibilities also suffers some of the deficiencies of incompleteness in examination of the trust issues and all the ramifications. This review does aftenipt to address the basic issues and central questions assigned to the Task Force and contained in the legislation creating the American Indian Policy Review Commission.
Accordingly, the following segments of this section relate to the historical development of Federar-Indian relations, with its antecedent influences; the relative rights of Indians and other people under the law; rationales of significant policies; and cogent principles of responsibility employed, or disregarded, in the chain of events affecting changes in policy or the development of relationships.
PEOPLE AND PROPERTY IN THE ARENA OF TRUST
It has been generally accepted among leading authorities on the subject of Federal-Indian law that the established relationships between Indian tribes and the United States are "deeply rooted in international law." A primary source of legal authority cited, and heavily relied upon, by the U.S. Supreme Court in deciding early cases relating to Indians were the various texts on the "Law of Nations; or Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns." Considerations of that body of law, as it stood contemporaneously with the birth of American Independence and the United States, are important to the understanding of current relations between the nation and Indian people.
It may be less well acknowledged, perhaps, that the European colonial experiences in North America, as well as the United States' policies toward Indian Tribes in its early history, have had significant influence, on the formulation of policies relating to aboriginal peoples elsewhere for the better part of the past two centuries. Instructive to this point, and to the examination of federal trust responsibilities to Indian people, is a report written at the request of the U.S. Departnient of State in 1919 by Alpheus Henry Snow, and titled, "The Question of Aborigines in the Law and Practice of Nations." While the overall work embraces an imperialist view that power supersedes the rights of weaker nations, and obviously attempts to justify extensions of American authority over various island nations of the world, the report examines the Indian trust relationship at length.
Although Snow's analysis was written for the purposes of foreign policy formulations and applications, his introduction notes that lie has enlarged upon his instructions from the State Department regarding the time periods to be covered, inasmuch as the ending of the






54

so-called French and Indian War "is in this study taken -is the beginfling of modern law on the subject." 'With reference to North American Indians, he writes:
The peace of 1763 between Great Britain and France, involving as it did the transfer of territory inhabited by aboriginal tribes, would seem to have beeji thioccasion of an investigation into the law of nations on this subject which resldte-d in the formulation of the basic principles subsequently applied by the European nations and the United States.
In his chapter on the "Powers over Tribes and( Colonies," Snow draws the following conclusions with, respect to trust relationships, stating:
That the relationship which each of them bears to these (dependent) c'w.nmunities is of an essentially personal character, though it exteii~lds to p~roporty as well as person-the State as a personality exercising power over these e -omnmunities as personalities under its jurisdiction ; that the power is exercised by special legislation as may be "needful"; that the power is "adequate" to the needs of these personalities: and that it is limited by their needs an(1 by the fu':damental principles recognized by all civilized States and embodied in their constitutions.
That it is a relationships) which has it-s source in the sovereignty of the State. and not in the domestic constitution of the State, is also recognized that the domestic constitution may properly specify how the legislature, executive, and judiciary of the State may impose proper restrictions on their action.
Tt is also recognized that the legislature is properly the supreme superintending organ of the State in exercising the power, though the executive is also almost invariably recognized as the proper ordinary organ for this purpose. either by specification contained in the constitution, or by implication from the grant of the executive power, or by delegation by the legislative of sublegislativ-e power to the executive.
When "trusteeship" is used in this sense, it has not the meaning of trusteeship in the private law, but is used in a broad sense conforming to the literal meaning of the word. In the private law a trusteeship is the relation between persons. arising out of the deposit of money or property by one with the other, with the object of having it produce an income to be paid over by the trustee in a specified manner to specified persons, or having it used in a specified manner for the benefit of specified persons or for specified objects. It is thus, in the sense of the private law, essentially a relationship concerning property rather than a relationship between persons. A trust, in its literal sense, is a relationship of an essentially personal character. In its modern derivative sense, especially as used in the p~olitico-legal language of the present day, the word "trust" covers all the relations of a fiduciary character in which a person assumes a relationship of responsibility for or to another, as both the Oxford and Century dictionaries testify. In this broad sense, trusteeship is a generic term including all the fidunciary relationships relating to person or property, and thus includes the relation-ship of parent and child, husband and wife, guardian and ward, patron and apprentice, master and servant, as well as trustee and cestui que tru4f. a gent and principal, bailee and bailor, depositary and depositor, partner and copartner, etc.
'Using, trusteeship in its literal sense and also to some extent in this generic sense, it seems to be the most appropriate word to describe the relationship betwoo~n a civilized State and all its colonies and dependent communities of whai tever character.
The trusteeship of a civilized State for its colonies and dependencies is, however, a trusteeship. essentially relating to person rather than property, and. therefore. the closest analogies which the private law furnishes for determining the- problems of this trusteeship are those derived from the rules of the private law relating to patron and apprentice, and guardian and ward. The analogy of the relationship of parent and child, though often applied, seems to be figurative awl inexact, though there are implications in the adjective "paternal" that are not without value by way of analogy.
It would seem, therefore, that the general nature of the jural relationship which a civilized State exercises over all its colonies and all its dependent coii-.







55

munities, whether these communities be in colonies, or within its domestic territory or located externally to both, is best described by the word trusteeship, using this word iii its literal sense as implying a fiduciary relationship essentially personal, though extending to property as well as person. tha~t the fiduciary power is plenary, in the sense that it is adequate to the needs of the situation of the particular personality to which it is applied though limited to thfese needs; that as a pow-er over political personalities it is an incident of the sovereignty of each civilized State, and is governed by the law of nations, though not by the body of rules w'hichi apply between civilized State to which the name internalional law is properly applied ; and that the cloest analogies to this relationship which occur in the private law are those of patron and apprentice and guardian and ward.
In the same section, Snow also attributes a similar character and xneang to the words "protectorship" and "protection."' inasmutch as these words are common to most treaties with the Indiain tribes, his statements on their Significance also bear repeating:
The word "protectorship" implies a fiduciary relationship of a personal character, but is in its literal sense limited to defense against injury, and does not imply personal influence and control. In its literal sense1, th,,i',,efore, it is not applicable to describe the jural relationship of a civilized State to all its colonies and dependencies, since that relationship implies not only defence but active and continuous education and guidance. It is to be noted, however, that the French and English word "protection," the Ger-man word schiutz, were legal terms in the feudal law, from which they apparently came into the public law of Europe. In the feudal law, protect ion or 8cliutz implied a personal relationship between a sovereign or a lord having the dominion or domain over territory and th~e imperium or empire over its inhabitants, whereby a complicated body of reciprocal rights and duties arose; the sovereign or lord being regarded as the protector of the rights of person and property of his subjects or vassals, and they reinderir12 service, or compensation in lieu of service, in return. In this sense, protect ion or schutz had very nearly the meaning of trusteeship, using that word in it's broadest sense.
Tfhe conclusion which would seem to follow from this whole survey is that the power which a civilized State exercises over all its colonies and dependencies is, according to the law of nations, a power of trusteeship, and that the power of guardianship over its dependent aboriginal tribes is one of the manifestations of this general power."
The implications of these statements will be discussed further in the context of colonial period, and United States, treaties. The general meaning of the term "jural relationship" used here refers to those of law, or legal relationships, and those relating to rights or ob~ligzations.
The Snow treatise strongly supports the theory that the trusteeship and guardian relationship imposes a. duty upon the trustee nation to provide for the education, health, and material well-being of native dependencies.
An 1821 report to the Secretary of War, prepared une-er the direction of President James Monroe, makes similar characterizations of "these duties, which grow naturally out of our relation to Indians:" and, "as the Government assumes the guaradian ship of the Indians,
** this relation provides for their proper education."1
Also significant for consideration from the 1919 report for the State Department are the following statem ents relating to dependent sove reignty and the purposes of trusteeship:
That a State is an artificial personality having such a corporate character in the law of nations that it is capable of trusteeship under the law of nations, is well settled. (The United States) has, in f act, executed trusts of a most important kind, going even to the extent of holding sovereignty in trust.





56

No well-founded legal doctrine readily becomes an "ingenious juridical means"# by which an act recognized to be morally wrong becomes legally rightful. Conisidering interventions of civilized States in the affairs of semicivilized States as anl extension of national sovereignty and regarding all extensions of national sovereignty as regulated by that part of the law of nations which is concerned with the social relations of States and countries, which law is based upon the fundamental principle of trusteeship, there would seemi to be no possibility of civilizedl States legally engaging in the work of demoting any community from the status which it has acquired by general recognition. The trusteeship is for conservation. and elevation of status. A conservator or guardian can find in the private law no warrant for altering for the worse the social status of the incompetent person or the ward. Hi-s duty is to alter it, if possible, for the better.
Tel analysis of trusteeship, in both domestic and international contexts of development, generally corresponds to, or becomes inclusive of, all the different viewpoints expressed by the National Tribal Ch a irimen's Association and Mssrs. Reid Chambers and Willijam Veedler, in the preceding pages. It remains at odds with the narrow views expressed by the political appointees, and their staff assistants, in the D epartment of the Interior. Additional to the prior statements of this sort, cited from iMarch and. May of 1973, is testimony supplied by Assistant Interior Secretary John I-I. Kyl, in U.S. Senate hearings held ,on May 7 and 8, 1973, indicating the critical difference in the varied positions, namely that property is the sole object of the trusts involved. Secretary Kyl explained:
As you know, the UT.S. Government is charged with a trust responsibility with regard to Indians. This termi is often misunderstood. It applies to resources, not to persons. This trusteeship is tied to the protection, preservation, and development of tribal and individual Indian resources, such as land, water, fishing, and hunting rights, mineral development, and timber.
This trust responsibility is frequently compared to the duties of a private trustee, such as the administrator of anl estate. But the analogy is faulty because of a unique feature in the U.S. Indian trust responsibility; the assets of this trust must be managed and administered with the consent of the beneficiarythat is, the tribe or individual Indian.
In the combined Secretarial view, we have the trust responsibility, then. divorced from people andl not. involving any obligations for social services or programs whatsoever. By this view, it applies solely to property and propert-y rights, subject only to some uniidefined measure of Indian consent to management actions. Yet, as Interior informed OMB,~ "paternalism" is regarded as being the "essence of the trust." Plus, there is that allegation of a "subsidized" existence f or the. Indian people, which the chief administrators of the trust responsibility in recent years have considered as providing sufficient r-eason to impose, the greatest limitations upon the operation of "Indian self -determi nation," or to justify denials of consent. It requires veryr little additional analysis of the Interior Department's public and P1 lvte statements regarding trusteeship to conclude that their con.ceptualization of the federal trust relationship and trust responsibilities to Indian people is extremely "faulty," if not designedly mischievous.
INDIAN TRUSTEESHIP AND TRUST FUNDS
In the colonial period of the formative United States, explicit terminology of trusteeship, or the term "trustees," is found as early as 1631 in the documents reviewed by the Task Force. An express trust was established by a United States treaty with the Seneca Nation in





57

1797, when $100,000 was "vested in the stock of the bank of the United States, and held in the nane of the President of the United States, for the use and behoof of the said nation of Indians." Earlier United States treaties with Indian tribes can be construed similarly as inplying a trust relationship and, as has been discussed previously, earlier federal statutes have been construed as having imposed the qualifying conditions of a trust relationship.
In 1849, the U.S. Attorney General brought suit against private Inarties in Mississippi in the name of John "Tyler, as "President of the United States, and Successor in Office of Martin Van Buren, and Trustee" for unnamed Choctaw Indians. The President sought payment on a bond purchase of lands reserved by the 1830 Choctaw Treaty for Indian orphans, which lands were "to be located under the direction of the President, and with his consent the same may be sold and the pro eeds applied to some beneficial purpose for the benefit of said orphans." Although the U.S. Supreme Court decided the case priilarily on the basis of the contract for payment expressed in the languange of the bonds themselves, the case was argued on the issue of whether the President of the United States held any legal authority to stand as a trustee to Indians. The President had lost the case in the lower court on the basis of Mississippi trust law. In the successful a,,-,runents before the U.S. Supreme Court, the Attorney General maint;P}ned that the trust relationship between the President and the Indian beneficiaries "stands upon general principles," and that the trustee could bring the suit in his own name as President, or even omit any description of the cestui que trusts as being "entirely immaterial" to his standing as the trustee.
At that time, or by the 1850 accounts of the Department of the Interior, the United States held $5,273,100.00 in trust for a number of treaty tribes. Another $2,178,721.32 in Indian trust monies had been loned out to various States of the Union, including Alabama, Ind iana, Kentucky, Maryland, Michigan, Missouri, and Tennessee, as l 1as the United States itself. Beyond the loans and investments in States bonds. other monies were made available to the railroad comaies. A decade later, $890,000.00 worth of Indian investment bonds and securities were embezzled from the Interior Department; and, v additionally, the cumulative amount of $1,247,666.00 in owed interest payments were disclaimed or defaulted on, primarily by states secedin, from the Union and engaging in the Civil War.
The federal budget for the Office of Indian Affairs prepared in 1 50 for the following year called for appropriations from the U.S. T- asury of an amount totalling $2,420,722.66 for all purposes and for meeting the costs of administration, treaty obligations, and mak]ing new treaties rid land purchases. Of this, $747,945.00 was specifically irentifled as providing for "payment of annuities and other objects provided for by treaties with various Indian Tribes." Only $121,500.00 wa' budgeted for the salaries and expenses of the Indian Department, including buildings and repairs at agencies. The remaininfr amount of .I ,551,397.66 included expenses for services obligated under existing treaties, interest payments, treaty making, and contingency expenses. The 2.4 million dollar budget for all matters relating to Indian Affairs is misleading, however, inasmuch as it included the $380,461.32 owed to tribes in interest payments from the states and national gov78-127-76-5




58

enment; and additionally allowed that as much as 50%, or more, of the appropriated funds could become added "investments" or reinvestments in federal or state stocks, bonds, and loans.
A "trust relationship" was definitely in place by 1850 with respect to Indian tribal funds. Virtually all costs and services to Indians were provided as obligations under treaties, or as consideration price for the sale or surrender of additional lands. At that time, virtually no Indian lands were held in trust by the United States-unless they all were generally so. The tribes were "paying their own way in the American system and, apparently, were "subsidizing" the development of several states and the nation with at least 75% of the available tribal treaty, or trust, funds on hand or owed in any given year of the, early 1850's. Percentages reached higher.
In the same decade, the areas of Indian lands westward of the Mississippi River, exclusive of Texas, California, Oklahoma, and portions of the Dakotas were estimated in territorial size, and assessed in value, for acquisition by treaties with the tribes. It was estimated that slightly less than $30,000,000 would be required to purchase an approximate one billion, seventy-five million acres from the western Tribes. The handling and usage of the Indian funds, and the interest-level percentage of amounts actually expended or delivered, is referred to in notes accompanying the land purchase estimates, as later reported in 1855:
The proceeds of the lands of the Kansas and Nebraska tribe are amply adequate to educate the tribes, to provide them with cattle and other stock, and 61ricultural implements, and pay for the service of persons to teach them agriculture and the arts.
The plan of paying them anything but the interest of their funds, In annuities. is so destructive in its effects that it is hoped that this illusory system will be abandoned. By its continuance, they are surrounded with influences which tend to keep them in the hunter state, and leave them, essentially, in the hands of persons who thrive by the Indian trade.
In fact. the tribes were -etting fewer cents on the dollar from monies obligated to them, including goods and services equivalents, in treaty payments than they were receiving as price per acre of land. Their own monies, or obligated payments and land purchase considerations, were often used more than once to accomplish a series of land purchas( transactions, without monetarily or materially increasing the oblizatios of the United States. Ultimately, the Congress enacted a law in 1875 requiring that "ll able-bodied male Indians between the ages of eighteen and forty-five" perform labor at a "reasonable rate" or wagre to again earn any share or distribution of annuities and rations Paid to the tribes under treaty payments and obligations from the United States. The "purpose of inducing" Indians to labor and become self-supporting" was considered sufficient justification for the
reov.irement.
However. more. than half a century later, the 1928 Meriam Revorf discovered that Indians were still "Paying and double-paving their own way" in the American system. Whether education services mirht be provided to Indian persons under obligation of treaties. or ,s an incident of a trust responsibility and obli gatory duty, the Indian Service had determined that education should not be provided as a "gratuity." :At the federal boarding schools, they found:






59

The boarding schools are frankly supported in part by the labor of the students. Those above the fourth grade ordinarily work for half a day and go to school for half a day. A distinction in theory is drawn between industrial work undertaken primarily for the education of the child and production work done primarily for the support of the institution. However, teachers say that much of it is as a matter of fact production work for the maintenance of the school. The question may very properly be raised as to whether much of the work of Indian children in boarding schools votld not be prohibited in many states by the child labor laws, notably the work in the machine laundries. Not enough consideration has been given the question whether the health of the Indian children warrants the nation in supporting the Indian boarding schools in part through the lalr of these children.
Additional detail is provided from the body of the Meriam Report:
If the labor of the boarding school is to be done by the pupils, it is essential that the pupils be old enough and strong enough to do institutional work. Whatever may once have been the case, Indian children are now coming into the boarding schools much too young for heavy institutional labor. The result is that the institutional work, instead of being done wholly by able-bodied youths of 15 to 20 nominally enrolled in the early grades, has to be done, in part at least, by very small children--children, moreover, who, according to competent medical opinion, are malnourished. Indian Office reports speak of the introduction of labor-saving devices as if they were an accomplished fact, but actually little has been done in this direction; there is no money. In nearly every boarding school one will find children of 10, 11, and 12 spending four hours a day in more or less heavy industrial work-dairying, kitchen work, laundry, shop. The work is bad for children of this age, especially children not physically well-nourished: most of it is in no sense educational, since the operations are large scale and bear little relation to either home or industrial life outside; and it is admittedly unsatisfactory even from the point of view of getting the work done.
Finally, the Report stated the government's own justification:
At present the half-day plan is felt to be necessary, not because it can be defended on health or educational grounds, for it cannot, but because the small amount of money allowed for food and clothes makes it necessary to use child labor. The official Course of Study for Indian Schools says frankly: In our Indian schools a large amount of productive work is necessary. They could not possibly be maintained on the amounts appropriated by Congress for their support were it not for the fact that students (i.e., children) are required to do the washing, ironing, baking, cooking, sewing; to care for the dairy, farm, garden, grounds, building, etc.-an amount of labor that has in the aggregate a very appreciable monetary value.
The term "child labor" is used advisedly. The labor of children as carried on in Indian boarding schools would, it is believed, constitute a violation of child labor laws in most states.
In 1920, the Indian tribes from throughout the United States collectively had a monetary holding of $233,863,916.00; however, these tribal trust funds were held in the custody, and under control, of the United States. The Congress. in trustee capacity and by virtue of constitutional control over appropriations of monies delivered into the U.S. Treasury, possessed the power of determining whether these
funds might be used for Indian education or not be used for any purpose. In 1928, the year of the Meriam Report, the total federal. appropriations for Indians nationally amounted to $15 million. Indian treaty funds or tribal obligations were the source of more than $5 nillion of the total amount. roughly equal to the government's own expenditures on Indian education nationally, or in all the states. The "very appreciable monetary value" of the boarding school child labor was not accounted to either contribution. Tribal funds amounting to in additional $17 million had been used. or scheduled for use, to meet community level needs and services, also in fiscal year 1928.






60

While the Federal government's gratuiit y appropr'iat ions for Indian programs and administration accounted for only $9.7 million of hie alproximnate $0'2 million in tribal and governmental funds availale for those purposes in fiscal year 1928, one additional factor merits attention. In tribal claims cases against the United States, the governmient has been able to recover certain "gratuity funds' appropriated for the benefit of the tribes in the past. While the Congress limited the liability of tribes for repayment of "gratuities" as off-sets or re'coVeries to the United States under the Indian Claims Commission Act of 1946, prior claims suffered substantially from these "counterclaims" of the United States. These off-set recoveries are not wholly eliminated in the Indian Claims Commission; and, although reduced to exclude certain categories of past federal expenditures, federal attorne-vs routinely make claims and cases for the disalloweded" recoveison the chance that the Commission or appellate courts might grant them against the tribal judgment awards. This matter is discussed elsewhere in this rel ')ort.
A 1927 study of the federal Office of Indian Affairs by the Institute for Government ]Research of the Brookings Institution offered the view that "the education of the Indian is a function of the national government as long as he remains as ward of the government and pays no taxes. As long as land belongringr to Indian tribes or individual Indir,.,iis is exempt from taxation the, several states cannot be expected to provide schools." The coupling of the subjects of wardship and taxation with that of Indian education is not uncommon in considering the issue of federal trusteeship, either in that realm or in relationship to other applications to the persons or properties of Indians.
The, Supreme Couirt of the U~nited States in 1907 provided a useful discussion of treaty and trust funds, when it decided that Indian monies could he used to pay for sectarian education of Indian children despite a congressional declaration that public monies could not be used for that purpose. In a series of Indian Appropriations Acts subsequent to 1896, it -was declared "to be the settled policy of the government t~o hereafter make no appropriations whatever for education in any sectarian school." Earlier in that decade. federal fundingT of churches and religious institutional schools had consumed between 21 and 27 per cent of all appropriations for Indian education. As was to be the case later, a considerable portion of the monies being used were the Indian tribes' own funds. However, in response to the congressional directive. Commi-issioner of IndianAfisD M.
Browning on September 30, 1896, ruled that support of the churches' Indian schools should cease.
The so-called "Browninog Ruling"' was ordered revoked by President McKinley in 1901, who directed that "tribal funds" be used for the continued support of sectarian schools on Indian reservations, althougrh it was agreed that no public funds could be expended for that purpose. This usage of Indian monies continued to be disputed within the departments of the government, and challenged by various tribal members and governments. In 1904, the Bureau of Catholic Indian Missions carried the issue to President Theodore Roosevelt, who took the matter up with his Cabinet on January 22, 1904. This Attorney General, Mr. Knox, advised:





61

Notwithstanding the declaration of Congressional intent not to make appropriations in the future of public moneys of the American people for sectarian lstitutions, the previous laws giving the Secretary of the Interior descretion to 2se certain moneys of the Indians held in trust in any way that he might see it, including assistance to sectarian schools, were not repealed, and consequently alis discretion remained.
In his own decision, President Roosevelt pointed out that "there ire two kinds of Indian funds involved in this matter. One is the trust
Fund, which requires no appropriation by Congress, and which clearly Ls to be administered as the Indians themselves request. *** The other Fund consists of moneys appropriated by Congress in pursuance of :reaty stipulations. As to these moneys it is uncertain as to whether )r not the prohibition by Congress of their application for contract schools applys-that is, whether or not we have the power legally o use these moneys as we clearly have the power to use the trust Funds." However, the President directed that the appropriated treaty Funds be used in that fiscal year, ending June 30, 1906, but that no iew contracts be made "unless there is authorized by Congress or ;ome determination by the courts."
The Rosebud Sioux Tribe challenged the expenditures in that same fiscal year. The appropriated treaty funds were to fulfill the pro7isions of Article VII of the Sioux Treaty of 1868, which provided
hat a school house and a. competent teacher would be provided for very thirty children of the total Sioux population or Nation. The )ermanent "trust fund" of $3 million was established in the U.S. Treasury in 1889 by the Congress, which had directed that the interest paymentss would be used for "industrial and other suitable educaion," and the other half for purposes as shall "most contribute to he advancement of said Indians in civilization and self-support," eluding "cash payments per capita."
The U.S. Supreme Court denied the bid for an injunction against he Commissioner of Indian Affairs, and the Secretaries of Interior nd the Treasury, in the case of Quick Bear v. Leupp. Its opinion stated:
The validity of the contract for $27,000 is attacked on the ground that all contracts for sectarian education among the Indians are forbidden by certain rovisos contained in the Indian Appropriations Acts of 1895, 1896, 1897, 1898, nd 1899. But if those provisos relate only to the appropriations made by he Government out of the public moneys of the United States raised by taxtion from persons of all creeds and faiths, or none at all, and appropriated gratuitously for the purpose of education among the Indians, and not to "Tribal 'unds," which belong to the Indians themselves, then the contract must be stained. One class of appropriations relates to public moneys belonging to the government; the other to moneys which belong to the Indians and which is administered for them by the Government. These appropriations rested on different grounds from the gratuitous appro-iations of public moneys under the heading "Support of Schools." The two objects were separately treated in each act, and, naturally, as they are essentially different in character. One is the gratuitous appropriation of public ioneys for the purpose of Indian education, but the "Treaty Fund" is not public money in this sense. It is the Indians' money, or at least is dealt with y the Government as if it belonged to them, as morally it does. It differs from Le "Trust Fund" in this: The "Trust Fund" has been set aside for the Indians nd the income expended for their benefit, which expenditures require no annual appropriation. The whole amount due the Indians for certain land cessions 7as appropriated in one lump sum by the act of 1889, 25 Stat. 888, chap. 405. his "Trust Fund" is held for the Indians and not distributed per capita, being







062

held as property In common. The money Is distributed'in accordance with the discretion of the Secretary of the Interior, but really belongs to the Indians. The President declared it to be the moral right of the Indians to have this "Trust Fund" applied to the education of the Indians in the schools of their
,choice* B ut the "Treaty Fund" has exactly the same characteriste,4. Thoy are moneys belonging really to the Indians. They are the price of land cede-d by the Indians to the Government. The only difference is that in the "Treaty, Fund' the debt to the Indians created and secured by the treaty is paid by annual appropriations. They are not gratuitous appropriations of public moneys, but the payment, as we repeat, of a treaty debt in installments. We perceive of no jus-tification for applying the proviso or declaration of policy to the payment oif treaty obligations, the two things being distinct and different in nature and ha virg no relation to each other, except that both are technically appropriations.
The "Treaty" and "Trust" moneys are the only moneys that the Indians eafl lay claim to as matter of right; the only sums on which they are entitled to rely as theirs for education; and while those moneys are not delivered to then in hand, yet the money must not only be provided, but be expended, for their benefit and in part for their education: it seems inconceivable that Congress should have intended to prohibit them from receiving religious education at their own cost if they so desired it; such an intent would be one "to prohibit the free exercise of religioin" amongst the Indians, and such would be the effect of the construction for which the complainants contend.
The cestui8 que trust cannot be deprived of their rights by the trustee in the exercise of power implied.
In late 1923, the federal Board of Indian Commissioners were to state in their annual report:
Half a century ago Congress doled out small appropriations for Indian educatio'n mostly to aid mission schools. Congress now annually appropriates approximnately $5,000,000 for Indian education. And yet, we maintain, this sum is not sufficient to carry out the obligation laid on the Government by its peculiar dual relationship as guardian and trustee of its Indian wards.
In that same report, the Board commented on education and Indian religious activities on the Rosebud Reservation of South Dakota:
Serious questions are raised by all mission school. Religion is a very real and important part of life. The Government cannot take part in sectarian activities, and its work must be supplemented by that of the religious denominations if the Indian character is to be rounded out. The vital question is as to whether the educational standards and equipment of such schools are up to the proper plane.
The Rosebud Indians have to fight an influence which is doing a great deal in so much of the Indian country to demoralize them i4nd to drag them back from what degree of progress they may have attained. I refer to the fairs with all their demoralizing influences and attendent "dances" attractive to the Indian but degrading from every viewpoint. It would seem that there ought to be in local communities citizens of influence whose interest could be enlisted in behalf of removing from the Indians the demoralizing attendant upon these fairs and who would insist in so molding local public opinion that the Indians would be released from this further effort and debauch them.
Regarding the neighboring Pine Ridge Reservation, the Board dere1ared:
The influence of the "medicine man" is hard to counteract and undermine. It is one of the great forces looking back to savagery and recalling the red man -to old-time ways. When will we wake up and meet this Issue squarely, take up the gauntlet the medicine man throws down, and, with the healing -arts of modern science, overcome the magic of his incantations?
Their general advancement, reports Chairman Vaux. "is remarkable when we think that only 33 years ago was the period of the 'Messiah craze, the ghost dance, and the Wounded Knee massacre, in all of which this band was particularly engaged."






63

It is fully apparent that the Supreme Court's 1907 direction that treaty Indians could not "be deprived their rights by the trustee" to the "free exercise of religion" did not extend to any Indian religions, or held true only for the adoption of the Christian faiths to the extent afforded by the availability of tribal trust monies.
Another court decision of 1909 grew out of an arrrest and detention of By-a-lil-le, a Navajo Indian, on orders from the Interior department, apparently on the general char es of I eing" a troublemaker. The arrest and confinement commenced in 1907. The decision of the Supreme Court of the Arizona Territory speaks to the respective powers of the Congress and the Executive Branches of the Governmrnent, or the United States as an entity, in the relationships to Indians ,.s wards. The pertinent part states:
It is urged with great earnestness that the Indians are but wards of the -overnment, and therefore are subject to administrative correction of their conduct as are other wards to the correction of their guardians; that the disposition which has been made of these Indians is pursuant to a long-followed policy of the Departments of the Interior and of War, and that it is highly salutary in safeguarding the relations of the Indian to the government and to their white neighbors and, indeed, among themselves. However salutary in its results and desirable such a method of dealing with recalcitrant Indians may be, and however long such a system may have prevailed, it cannot be sanctioned, unless there is authority for it in the acts of Congress. Indians are not wards of the executive ofcers, but wards of the United States, acting through executive officers, it is true, but expressing its fostering will by legislation. We may pass, as unnecessary to determine, the question whether Congress may constitutionally vest in executive officers such summary authority as is here sought to be exercised. Our attention has not been directed to legislation expressly authorizing such summary methods. (Emphasis supplied.)
This decision corresponds to the Alpheus Snow analysis of 1919 for the State Department, particularly with respect to the trusteeship being held by the nation, and that the national legislature or Congress stands as "the supreme superintending organ of the State in exercising the power" as trustee.
The Interior Department's action against the Navajo Indian's concluct and personal behavior, as well as the Board of Indian Commissioner's remarks relating to the duality of guardianship and trusteeship within the realm of national obligations for Indian education, provides additional force to the perception that the trusteeship is not, a-nd generally has not been, limited to matters of property exclusively. It has carried far beyond property.
The assertion of national "guardianship over the Indian wards" has extended to the person, or personality, of every Indian in the matter of liquor uise or possession. Although most treaties provided for exclusion of alcoholic beverages on Indian reservations, the federal laws in force until after World War II to prohibit liquor sales to Indians througho t the nation, and on reservations not established under treaty proviqon, were jus1tified in the courts on the basis of the Federal zovernnment's guardianship and protecting power over Indian tribes and individuals. International assemblies and conventions, incidentally, when attempting to determine the "duties and obligations" of muardiarnship over aboriginal or native populations during the past 150 years, have concluded that limitations upon availability of alcoholic beverages or use by native peoples was a permissible act of national





64

guardianship; similarly to determinations that providing education and health services to native peoples is an obligatory duty of national trunsteeship.
The fact that the Interior Department and Bureau of Indian Affairs periodically continues to abuse its discretionary authorities and to exercise arbitrary powers of summary punishment against "recallitrant Indians," in the manner repudiated by the courts in the By-alil-le case of 1909, is attested to by the federal regulations adopted in 1967 to control "use of Columbia River Indian in-lieu fishing sites." Part 255 of the current Code of Federal Regulations, Title 25. were issued by the Secretary of the Interior on the request of regional administrators in the BIA and Solicitor's Office. who formulated the regulations to allow the BIA to destroy the homes of several long established, but small, Indian communities, whose members were adjudged to have displayed "unacceptable. mutinous attitude" against the BIA's Portland Area Office and Yakima Indian Agency.
The punishing regulations decreed that no permanent dwellings for Indian families were to be permitted in the homesites set aside for tribal members in replacement for similar communities flooded over and submerged by the reservoir waters of Bonneville Dam on the Columbia two decades previous. The 1967 regulations provided that temporary tents or teepees might he used at the sites. In prohibiting the continued use of the homes already constructed, notably at Cooks Landing, the regulations provided that: Any structure; erected or maintained in violation of this section may b'e removed. demolished or otherwise disposed of, with or withour prior notice, as determined by the Area Director. and the cost of such disposition shall be assessed against the person responsible for the structure.
The 1832 and 1834 laws granting authorities to the President of the United States and the Commissioner of Indian Affairs to act in ".ll matters arising out of Indian relations" was cited as the federal source of authority in issuing the regulations. Serious doubts must arise in the proposition that those early Congresses contemplated the need for a standby, unlimited authority for the President or BIA to deal in such manner with Indians exhibiting a "mutinous attitude" at Cooks Land(ling on the Columbia River. The regional officials for the Interior Department, when meeting with the Indian people to discuss the threatening regulations. proclaimed their powerlessness to resist the regulations, and declared their duty to carry out the orders and directives issued by the Interior Secretary. Reluctantly,. the same officials admitted that they had drafted the regulations and requested their issuance by the Department.
These federal regulations have not been rescinded. However, their implementation was blocked by the combined force and influences of a Playbo i Maaazine account of the matter-prominently positioned with a public letter of former Interior Secretary Walter HickeL callin' for "simple justice" for the Indian neople-and the condemnation of the proposed action by former UT.S. Representative Julia Butler Hansen. Mrs. Hansen. in fact, was able to convince the Tnterior Department and Public Health Service that their agencies had an obligation to improve the permanent housing and facilities systems of those small Indian communities. Nonetheless, the claimed power to raze and





65

destroy even the new homes, with or without notice and at cost to the Indian owners, remains on the books for the Interior Department.
A larger question of federal responsibilities, or any assumed obligati.on on the part of the Federal government to provide for Indian housing, is considered elsewhere in this report.
Additional discussion of the earlier quoted statement that "the education of the, Indian is a function of the national government as long as lie remains as ward of the government and pays no taxes" is warranted here.
The subject of "tax losses" to states and non-Tndian local governments on account of untaxed Indian properties, and nontaxable Indian activities has lonior been overplayed and seldom been devoid of gross misrepresentations of facts, calculations and projections. It has been a game of mirrors and rank mythology, played upon a field of false premises and fiscal mirages. this becomes apparent from review of several congressional studies and government reports concluded in the period between World War I and the Indian Reorganization Act of 1934.
A first example is found in the Brookings Institution's 1927 Report examining the Office of Indian Affairs. It stated that,"as long as lands belonging to Indian tribes or individual Indians is exempt from taxation the several states cannot be expected to provide schools." In a footnote to the statement, the following information is provided:
Tn a report on the results of a survey of education in Oklahoma made under the direction of the United States Commissioner of Education, it is estimated that the untaxed Indian lands in that state would yield $1,283,000 for school purposes if taxed. For the fiscal year 1922 the total expenditure for schools in Oklahoma from federal and tribal funds amounted to $855,000, leaving $428,000 as the loss to educational funds as the result of the exemption of Indian lands from taxation.
The State of Oklahoma regarded the "tax loss" as being incurred by itself. Yet the State and county contributions to Indian education were negligible at the time. Total State expenditures for Indians in all categories of spending, including health, welfare, education, and roads, by Oklahoma in 1929 was estimated at $47,431.12 by a Senate Report in 1933.
The same Senate Report, titled "Tax-Exempt Indian Lands," involving a national study of the issue, also reported that of the 94,000 school age Indian children in the continental United States in 19,30, more than one-third, or 34,000, resided in the State of Oklahoma. Yet in. that year, Oklahoma was reported to have contributed only $53,959.05 in State tax monies for the education of Indian children. None,theless, Oklahoma claimed its total tax loss in education revenues to be, in the amount of $2,328,066.68 as a result of Indian lands not being subject to its 3.5 mill, or $.0035, school tax levy.
In 1929, the twenty-two states in which federal Indian reservations were located claimed a school levy tax loss of $7,911,673.78, cumulatively, on account of the nontaxability of Indian lands. A total tax loss to the States was fipired at "$11.5 million. because of an estimated actual spending by these 22 states for all direct and indirect Indian purposes-again ranging from highways to welfare-amounting to an approximate $3.5 million altogether.





66

Indian Tribes having treaty or trust funds with the United Statcs Government were spending substantially more money for the costs of their children's education in the same period. In fiscal year 1930, the various tribes were expending $4,977,576.32 in trust funds alone for Indian education; another $1,105,797.63 from treaty funds; and asuming a charged indebtedness to the United States for an additional $2,094.706.57, also strictly for Indian education costs. The Federal government itself was paying substantial sums to the states for the 43,562 Indian students enrolled in local public schools. The basic tax burden for Indian education, it is clear, fell upon the Indian Tribes themselves and their limited resources.
Comparatively speaking, the 225.544 Indians enumerated under the jurisdiction of federal agencies in these twenty-two states-as well 0= the added number of 88,999 Indians who were declared to be "under the jurisdiction of the Bureau of Indian Affairs but are not enrolled"-were being taxed more heavily for their children's education than were the non-Indian populations of the nation. The grant from the United States of land sections in each township across the country for public education and university systems in each state were nt regarded as having contributed to any charge for the education of Indian students.
The actual state of conditions and spending by the Tribes and the Federal and state governments in that same time period-when major political efforts were being made by the states and in the Congress to eliminate all Indian tax immunities-can be illustrated from c.gressional testimony in 1927. Then, several bills had been introduce, 1 in the Senate to provide that "funds appropriated for the care and relief of Indians" should henceforth "be expended through certain public agencies of the States of California. Wisconsin. and Montana." These measures were intended to provide models for channellingz Indian monies through other states as well.
The testimony of attorney Albert A. Grorud. representing nonIndian "Indian interest organizations" and "various councils of ver.ous reservations in Montana". is the most instructive on the proent points. After concurring with the testimony of a California citizen. Mr. John Collier. who was 1,eter to become Commission of Inmian. Affairs with subsequently modified views, Mr. Grorud commented:
I will state that the Montana Indian death rate per thousand is rapidly increasing. It was 22.7 in 1921; 26.A in 1922; 24.5 in 1923, and 34.5 in 1924. These figures are taken from the mortality tables of the United States Census.
There are 13.273 Indians in Montana. There are 3.800 Indian children of school age, of whom 3,504 are eligible for school and 3.339 are in school.
Of the Indian children, 833 are in reservation and nonreservation Indian boarding schools: 496 in mission boarding schools; 216 in Government day schools: 106 in mission day schools: and 1.688 in public schools.
Tuition is paid by the Indian Bureau to the local public school system for
1.160 Indian pupils, at the rate of 35.90 a year per pupil, totaling 841.737.
The per capita cost of the Blackfeet Indian boarding school is 8214 per year: of the Fort Peck Indian boarding school, $262 per year; of the Tongue River Indian boarding school, $240 per year.
The Indian Bureau expenditure on Montana Indians totals $918.025 annually: that is. for the year ending June 30. 1926. Of this sum $292.636 is taken from tribal funds belonging to the Indians: $140.091 is reimbursable, to be collectr from the Indians, and $52.624 is paid in fulfillment of treaty obligations, whiuh means that it is the property of the Indians.





67
In other words, the Federal expenditure on Montana Indians consists of $485,3M, representing Indian property expended for Indians, and $432,673 representing gratuity appropriations from the United States tax budget.
This per capita total of $69 a year pays for the administration of property guardianship and the maintenance of schools and all social service.
As the Indians themselves pay for about 53 percent of the service given them, obviously they should have a voice concerning the Wheeler bill, which proposes that State agencies shall be used in the health, educational, and other human services as distinct from property guardianship.
The rising Montana Indian death rate, now nearly three times the death rate of the general population. threatens the extermination of the Montana Indians, and calls for emergency action.
It was not surprising to find that the Bureau of Indian Affairs. in its testimony supporting the transfer of functions to state agencies, had reinforced the view that the Indian population as wards were on the "'public dole." contributing nothing to the costs of t hir "burlensome existence." The Assistant Commissioner of Indian Affairs had testified:
In addition to the other advantages of the education of Indian children in the public schools there only the tuition is paid, it is much less expensive than in educating them in Government schools where the entire cost of the student's living is borne by the Government instead of by the parents.
By 1930, Montana was claiming a tax loss of $1,081.941 as result of the nontaxability of little more than 6 million acres of Indian land in the State. However, the State and counties were collecting more tax revenues from taxable lands within reservation boundaries than was being expended by their governments and districts for Indian education.
A final example can be found with respect to the Quinault Reservation in the State of Washington, where a tax loss to the State and Counties of Grays Harbor and Jefferson amounting to $91,000 was claimed for 1930 on basis of nontaxibilitv of Quinault lands. The total county expenditure for Indian education* that year was $10.115.49. This was hut a low fraction of tax revenues received by the State and counties from fee patented lands and taxable forest harvests on the Quinault Reservation at the time.
In fact those tax revenues were being lost to the Quinault Indians,
until the Taholah Public School District was subsequently established in the latter 1930's after enactment of the Johnson-OMalley legislation. The school district is contained within the boundaries of the Quinault Indian Reservation. Special levies and regular local school taxes, thus. have been drawn from the treaty reserved reservation land base of the Quinaults, first for maintaining the local elementary school, and more recently a junior high school addition. The student population has consistently had an Indian student enrollment exceeding 90% ; the school board has been all-Indian since its inception.
There of course has been a regular State allocation to that local ehool district corresponding to other public school districts of the State. It has not been exempt from the general problems facing school systems around the country with respect to funding supports and limited local revenue sources and tax base. However, in its basic charieter, the school district has been a function and institution of local communityy government. The county stands nonetheless as the tax-collecting agency for the district. This is because, whatever the realities of





68

the --ituation or character of the school in the community, education has been divorced from Indian tribal self -governiment. Similarly, in.herent taxing authorities of local government over established territorial domains have been severed from most Indian tribes. The losses in such situations have not been incurred by the states; they have been incurred or sustained by the many f ndian communities. In large measure, this has been due to a misconstruction and misapplication of the federal trusteeship for the Native American people, or Indian tribal communities.




























SECTION IV
EARLY AMERICAN ROOTS OF FEDERAL-INDIAN LAW















SECTION IV
This Section discusses the continuing debate among competing interests and influences for controlling the destiny of Indian people historically. A range of different ideas and philosophies are presented in another historical summary which shows that, even when Indian people were not involved, the tribes were the sure losers in the debate and in the exercise of
governmental powers.
A debate on the character of Indian people and the legitimacy of Indian rights under law has continued in the non-Indian community for nearly five centuries. In the national history, the arguments have never suffered for want of emotional intensity, nor for partisans committed to a multitude of nefarious views, and their counterpartsoften pursuing their own erroneous, sometimes overly-righteous, desin s. When the greatest harms have been rendered upon the separate or collective communities of Indian people by the well-meaning or elfish and self-serving, objectives of other people or the national government, history has generally borne the blame. Succeeding generations have each discovered all necessary compensating grounds for absolving themselves of complicity in any obvious injustice; for satisfying themselves of the injurious actions' necessity; or for justifying the consequential result as being preferable to worse results which did not, but which could have, happened. Too frequently the Indian fortunes have rested upon the turn of the debate, and the power of processes or partisans having none of the native peoples' interests to uphold.
In the time of Thomas Jefferson, it was an accepted tenet that, among the duties of a nation to itself, fundamentally "a nation ought to know itself. Without this knowledge it cannot make any successful endeavors after its own perfection. It ought to have a just idea of its state, to enable it to take the most proper measures; it ought to know tuie progress it has already made, and what further advances it has still to make-what advantages it possesses, and what defects it labours under, in order to perserve the former, and correct the latter." The principle is as true for Indian Tribes as it is for other nations.
In this sense, an historical perspective is essential to a proper construction or understanding of issues and matters involving Indian treaties, trust relations and trust responsibilities, and the very nature ef Federal-Indian relations in America. In 1885, the U.S. supreme Court remarked that: "The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character." Chief Justice John Marshall had earlier noted in 1831 that: "The condition of the Indians in relation to the
United States is perhaps unlike that of any other two people in existence."
(71)






72

JTudgments on America's history of dealin~rs with. Indian people can be colored to suit many diverse purposes. or be concIH(1edl with the most contradictory results. In latter 1974, for example. U.S. IDistrict Judge lWarren K. UrhToin wrote in a decision relating to the 1868 Treaty with the Sioux that the nation had "systematically" shriveled the n-ative populations and "d isem bowel ed their tribal bodies" by &'wars, diseases, and treaties pocked by duplicity." His c'onclulsion: "It is ain ugly history. White Americans may retch at the recollection of it'l"
On the other hand, other public officials and writers on the subject have claimed that Indians have fared quite well in the American system, all things considered. or when compared to what has happened to natives elsewhere. This latter attitude is reflected by Jay P. Kinney, the organizer and chief administrator of the BIA's Forestry Service for three decades after 1.908. and then a Justice Department employee for another twenty years working on defenses in Indian claims cases against the United States. In his 1936 hook, A Continent LostA Civilization Von:~, Indian Land Tenure in America, Kinney wrote:
Many books have been written regarding the social, political and economic status of the American Indian. Most of them have had as a motive the exposition of the failure of the Federal Government to fulfill its obligations to a dependent and unfortunate race or the indictment of the methods and policies pursued in tho effort of a dominant race to regulate the conduct and ameliorate the condition of a people who by the very force of circumstances occupied the p)ositionl of a conquered race. Bungling and ineffective as the methods may have been, unscientific and temporizing as the policies of the dominant race surely have been. much of the criticism heaped upon the legislatve and executve branches of the Government has been essentally unfair and unjust and in many instances the implied condemnation or open denunciation of public officials charged with the duty of administering Indian Affairs has been wholly unwarranted.
In an attempt to apprase the :success attainedl, or the failure experienced, in efforts to improve the conditions of life among the Indians, either in the past or in the future, one must not overlook the fact that certain qualities conducive to intellectual, moral and economic progress are lacking or strangely dormant in many Indians: and that the best of intentions, carried into execution with zeal and intelligence, frequently produce mediocre results.
IAn earlier careerist in the nation's Indi an Service, H-enry R. Schoolcraft, had assessed federal policies in 1852, and particularly the practices of purchasing lands f rom Indian tribes by treaties of cession, as follows:
It is a documentary history of our dealings with the Indian tribes, which will outlive all accusation: arid must serve to convince the world, that they have been treated. under every question of the conflicting triplicate jurisdiction, between "Themselves," the "States," and the "United States," with justice, a high regard for their natural rights, and a degree of patient magnanimity, beyond the aborigines of any people whose history has been preserved.
Another perspective was incorporated in the 1881 message of Sitting Bull addressed to the President of the U1.nited States:
What treaty that the whites have kept has the red man broken? Not one. What treaty that the whites ever made with us red men have they kept? Not one. When I was a boy the Sioux owned the world. The sun rose and set in their Litnds. They sent 1O,OOU horsemen to battle. Where are the warriors today? Who Rlew them? Where are our lands? Who owns them? What white man can say I ever stole, his land or a penny of his money ? Yet they say I am a thief. What white woman, however lonely, was then a captive insulted by me? Yet they say I am a bad Indian. What white man ever seen me drunk? Who has ever come to we hungry and gone unfed? Who has ever seen me beat my wives or abuse






73

my children? What law have I broken? Is it wrong for me to love my own'. Is it wicked in rue because my skin is red ; because I amn a Sioux : because I was born where my fathers lived; because I would die for my people anid my countrylt
A government report published in 1900 for the Bureau of American Ethnology offered one of the rationales commonly expressed for the taking of Indian lands, by whatever methods, legal or otherwise, in the course of the national history, Its conimentar y was preceded by a showing of Indian population estimates for fifteen different years,, including that of America'S Centennial year, as follows:
1S20------------------ 471, 036 1855------------------ 314, 622
1825------------------ 129,366 1857------------------ 379, 264
1829-------------------- 312,930 1860------------------ 254,300
1834------------------ 312, 610 1865------------------ 294, 574
1836------------------ 253,464 1870------------------ 313, 712
1837------------------ 302, 498 1870------------------ 313,371
1850------------------ 388,229 1875------------------ 305, 068
1853 ------------------400, 764 1876 ------------------291, 882
The report then declared:
Examining these estimates at the different dates, we see that the average, in round- numbers, is 315,000. Now, assuming this to be a correct estimate, and allowing five persons to a family, this would give 63,000 as the whole number of Indian families in the United States. Assuming the area of the United States. exclusive of Alaska, to be 3,025,000 square miles, this would give to each Indian family a manor of 48 square miles, or 30,720.acres. Now, supposing, for further illustration, that the families were distributed uniformly over the whole territory, the State of Rhode Island, which now supports a population of 345,506 persons, or 69','101 families (allowing five persons to a family), would be apportioned among 26 Indian families; the State of Delaware would be allotted to but 43, and the whole State of New York, which now supports more than a million families, would be assigned to 1,025 lordly savages.
It is apparent, therefore, that the requirements of the human race and the march of civilization could not permit such an apportionment of the soil of the American continent as this, even were the estimates trebled. It is true that practically no such equal distribution of the lands as that mentioned would be possible. Moreover, it is also true that some portions are unsuitable f or the ordinary purposes of life; but the supposition given will be understood as an illustration of the theory of the Indian claim, and is correct in principle. That a population whose territorial needs would be amply supplied by the area embraced in the single State of Illinois should, on the score of being first occupants of the country, be allowed the exclusive use of the whole territory of the United States is inconsistent with any true theory of natural rights. Moreover, it is not required by humanity, religion, nor any principle of human rights.. This must be conceded.
An 1802 oration in similar vein by John Quincy Adams, later to become President of the United States, deserv-es attention also. The influence of the Adams' family of Massachusetts upon public policy in the early days of the United States has drawn renewed interest in modern times through the media of public television. The followingview by Adams, coming after his father's retirement in 1801 as the second President of the United States, is pertinent because the younger Adams, as a rising political figure and leading attorney of the tinies, successfully carried his arguments to the U.S. Supreme Court some years later. In the 1802 speech, he argued:
There are moralists who have questioned the right of Europeans to intrude upon the possessions of the aborigines in any case and under any limitation whatsoever. But have they maturely considered the whole subject? The Indian right of possession itself stands, with regard to the greatest part of the country,


78-127-76-6






74

upon a questionable foundation. Their cultivated fields, their constructed habitalions, a space of ample sufficiency for their subsistence, arid whatever they had annexed to themselves by personal labor, was undoubtedly by the law of nature theirs. But what is the right of a huntsman to the forest of a thousand miles over which he has accidentally ranged in quest of prey? Shall the liberal bliuntie.s of Providence to the race of man be monopolized by one of ten thousand for whom they were created? Shall the exuberant bosom of the common mother, amply adequate to the nourishment of millions, be claimed exclusively by a few hundreds of her offspring? Shall the lordly savage not only disda-in the virtues and enjoymefits of civilization himself, but shall he control the civilization of a world?'Shall he forbid the wilderness to blossom like the rose? Shall he forbid the oaks of the forest to fall before the ax of industry and rise again transformed into the habitations of ease and elegance? Shall he doom an immense region of the globe to perpetual desolation, and to hear the howlings of the tiger and the wolf silence forever the voice of human gladness? Shall the fields and the valleys which a beneficent God has framed to teem with the life of innumerable multitudes be condemned to everlasting barrenness? Shall the mighty rivers, poured out by the hands of nature as channels of communication between numerous nations, roll their 'waters in sullen silence and eternal solitude to the deep? Have hundreds of commodious harbors, a thousand leagues of coast, and a boundless ocean been spread in the front of this land, and shall every purpose of utility to which they could apply be prohibited by the tenant of the woods? No, generous philanthropists! Heaven has not been thus inconsistent in the works of its hands. Heaven has not thus placed at irreconcilable strife Its moral laws with its physical creation.
The issue of Indian ownership rights in the American soil was presented to the U.S. Supreme Court in 1810, in the case of Fletcher v. Pe ck.
In brief, the question was whether a proclamation of October 1763 by the King of Great Britain creating several new colonies and annexing more lands to Georgia had confirmed or vested title to portions of these lands in the Indian Tribes of the region by containing "a clause, reserv Iing, under the dominion and protection of the crown, for the u Ise of the Indians, all the lands on the western waters, and forbidding a settlement on them, or a purchase of them from the Indians." In 1795, the legislature of the State of Georgia asserted ownership to the reserved areas as being part of its unappropriated State lands, -and authorized their sale to private persons. The transaction was challenged on the grounds that the lands had never been part of Georgia, but had been acquired in the Revolutionary War from Great Britain "for the j Ioint benefit of the United States, and not for the benefit of any pafticular state," and nonetheless remained subject to the Indian title to it.
John Quincy Adains, with Joseph Story, had argued the case before the United States Supreme Court in behalf of Georgia's claims of rights and power to dispose of the lands as the legrisla ture had' done. They asserted:
What is the Indian title? It is a mere occupancy for the purpose of hunting. it is not like our tenures; they have no idea of a title to the soil itself. It is overrunh by them rather than inhabited. It is not a true and legal possession. It is a right- not to be transferred but extinguished.
In upholding the validity 'of the legislative transaction of Georgia,, Chief Justice Marshall had cited an influential practical consideration:
The question, whether the vacant lands within the United States became a joint property, or belong to the separate states, was a momentous question which, at one time, threatened to shake the American confederacy to its foundation. This important and dangerous contest has been compromised, and the compromise i's not now to be disturbed.







He then cautiously concluded with the uncertain statements:
It was doubted whether a state can be seised in fee of lands, Subject to the ]Jiiian title, and whether a decision that they were seised in fee, might not be
--trued to amount to a decision that their grantee might maintain an ejectueat for them, notwithtanding that title.
The majority of the court is of opinion that the nature of the Indian title, w .h is certainly to be respected by all courts, mutil it be legitimately extingishedI, is not such as to be absolutely repugnant to seising in fee on the part of Phe state.
The case was important, not for what was decid(l, but for what influences its indefinite suggestions had upon the subsequent public p'hcies of both the nation and the several states. Also, it laid a prece lent foundation for the Court's decision in Johnson v. ill Intosh ti- teen years later, when the nature of "Indian land title" was expoun(led on to greater degree. By Fletche,.r v. Peck, the national (i vermnent was encouraged to pursue its methods of extinruishing Eian title to lands by the process of public treaties. Georoia on the dtwr hand, was encouraged to regard Indian rights and property claims as being very tenuous in nature; or insufficient in force to prevent the succeeding legislative assault against them by that State in its famed controversies with the Cherokee Nation.
Both the 1810 and 1823 cases were to be looked to in the future as re erve weapons for placing Indian claims to rights and resources in dcAubt. Relying on no other or additional authorities, the U.S. Sup!reme Court in 1874 cited these cases as basis for ruling that Indian Tribes had no ownership rights to forests and timber on Indian reservatiois: that the timber and income produced from its harvests and sales belong to the United States. That decision of United State8 V. Cook4 was firmly rejected by the Supreme Court later, but not until '1S in United States cases against the Shoshone and Klamath Tribes re.spectively. In those cases, the U.S. Solicitor General unsuccessfully a rgued that neither Indian title to lands nor Indian reservations included "the ownership of the timber and mineral resources thereon." Several generations of Indian people had been adversely affected in their interests in the interim, and denied the benefits of their few available resources.
Referring back to the root cases of Fletcher v. Peck and McIntosh v. John-on, we find that there were no Indian parties, either tribes or iIdividual, involved in the cases at all. No one was advocatina any claim of Indian rights, or asserting an affirmative definition of their character and positive force. The readings given to Indian rights doubtlessly were not properly drawn, and periodically were miscon,trueid in the future to weaken the Indian Tribes' positions in respondin" to a range of political, military, executive, legislative, and judicial actions. The dissenting opinion of Justice Johnson in the earlier of tie two cases reflects upon the influence of the attorneys presenting the matter, including John Quincy Adams, in these words:
I have been very unwilling to proceed to the decision of this cause at all. It appears to me to bear strong evidence, upon the face of it, of being a mere feigned case. It is our duty to decide on the rights, but not on the speculations of the parties. My confidence, however, in the respectable gentlemen who have been engaged for the parties, has induced me to abandon my scruples, In the tselief that they would never consent to impose a mere feigned case upon this court.





76

Justice Johnson's opinion on the rights involved in the decision ultimately, or in large part, have been embraced by subsequent courts and the political arms of the government. It is instructive to the continuing debates on Federal-Indian relations:
To me it appears that the interest of Georgia in that land amounted to nothrig more than a mere possibility, and that her conveyance thereof could operate legally only as a convenant to convey or to stand seised to a use.
Tlihe correctness of this opinion will depend upon a just view of the state of the Indian nations. This will be found to be very various. Some have totally extinguished their national fire, and submitted themselves to the laws of the states; others have, by treaty, acknowledged that they hold their national existence at the will of the state within which they reside; others retain a limited sovereignty, and the absolute proprietorship of their soil.
The latter is the case of the tribes to the west of Georgia. We legislate upOfn the conduct of strangers or citizens within their limits, but innumerable treaties formed with them acknowledge them to be an independent people, and the uniform practice of acknowledging their right of soil, by purchasing from them. and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their right of soil. Can, then, one nation be said to be seised of a fee simple in lands, the right of soil of which is in another nation? It is awkward to apply the technical idea of a fee-simple to the interests of a nation, but I must consider an absolute right of soil as an estate to them and their heirs. A fee-simple estate may be held in reversion, but our law will not admit the idea of its being limited after a fee-simple. In fact, if the Indian nations be the absolute proprietors of their soil, no other nation can be said to have the same interest in it. What, then, practically, is the interest of the states in the soil of the Indians within their boundaries? Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to wit, a right of conquest or of purchase, exclusively of all coipetitors within certain defined limits. All the restrictions upon the right of soil in the Indians, amount only to an exclusion of all competitors from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves. If the interest in Georgia was nothing more than a pre-emptive right, how could that be called a fee-simple, which was nothing more than a power to acquire a fee-simple by purchase, when the proprietors should be pleased to sell?
The selling of Indian lands, or the transferring of ownership to others, was not always to be pleasing to the tribes or at their will. An 1884 Congressional document shows the rapidity of land losses in a short space of time, at the beginning of the Congressional report's preparation and in the final revision before its completion. For the earlier year, it relates:
The total number of Indian reservation. in the United States, June 30, 18SO. was 147, two-thirds of the area of which will eventually be restored to the public domain for sale and disposition, after purchase of occupancy title from the Indians, and setting aside portions of the same to be held by the Indians in severalty or otherwise, as may be ordered by Congress.
These reservations contain 154,436,362 acres, with an estimated population of 255,938, or about 603.41 acres to each Indian.
The revised figure for the three years later shows:
The total number of Indian reservations in the United States. June 30. 1RS3, was 137. containing 13,5,998,101 acres, with an estimated population of 259&2, or about 529 acres to each Indian.
The rapid loss of lands to the tribes amounted to some 18.5 million acres in three years' time. This was not at the tribes' pleasure, but the result of the operative plan of Congress.
The reported activities and actions of non-Indians in seeking to claim Indian lands after the federal taking of some 2 million acres,






77

fr-om the Rosebud Sioux between 1904 and 1910 was described by the Eighth Circuit Court of Appeals in a 1975 decision as being representative of a recurrent pattern and "indicative of the public pressures existing" upon the Congress.
The Court cited the following report :
By the time of the "opening" of Gregory County, congressional desire for Indian lands was reaching a crescendo. The Gregory County Act provided for approximately 2.412 homesteads of 160 acres each. About a quarter of a million (P-Ple descended upon the local land offices at Bonesteel, Fairfax, Chamberlain, and Yankton. and 106,308 of these completed applications to be eligible for these 2.412 homnesteads. At the Yankton Office, where 57.434 applications were filed, 1he crowd broke all previous records. Hundreds slept in line at the land office, day and night, for a considerable time, to be in readiness to make their filings. On one day in July nearly seven thousand people were thus registered. It was estinmated that nearly one thousand people were in line one morning at one time, having slept there all night. At 4 o'clock in the morning the lines were joined by 1,000 more until they extended one block and a half from one office and nearly as far ... at another office. A carload of ready eatables came from Sioux City and was sold to the men waiting in line. The rush in the city and especially on the trains was something that had never been witnessed before in this state. The same is true for the Tripp County and Mellette County Acts. A total of 114,769 persons applied for 4,000 homesteads in Tripp County and a similar ocvurrence was the stoy of Mellette County.
There had evolved by 1900, of course, a great departure from the policy enunciated by the first President of the United States George Washington, when he had explained the effects of the nation's Indian Trade and Intercourse Acts to the Seneca Nation in December of 1970. The same law remained on the statute books in 1900, but had lost its effect in policy and practice by then. President 'Washington had declared :
Here. then, is the security for the remainder of your lands. No State, no person, can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but it will protect you in all your just rights. But your great o ject seems to be, the security -f your remaining lands; and I have, therefore, uln this point, meant to be sufficiently strong and clear, that, in the future, you cannot be defrauded of your lands; that you possess the right to sell, and the right of refusing to sell, your lands; that. therefore, the sale of your lands, in future, will depend entirely upon yourselves. But that, when you may find it for your interest to sell any part of your lands, the United States must be present, by their agent, and will be your security that you shall not be defrauded in the bargain you make. That, besides the aforementioned security for your land, you will perceive, by the law of Congress for regulating trade and intercourse with the Indian tribes, the fatherly care the United States intend to take of the Indians.
The First Circuit Court of Appeals recently upheld a 1975 M.aine US District Court opinion which ruled that the nation's 1790 Indian Trade and Intercourse Act established a trust relationship between the United States and Indian Tribes, by creating the conditions of a trust, or "the most literal kind of guardianship." The lower court had cited the U.S. Supreme Court"'s own recitations of President Washington's s eech to the Senecas in construing that trust obligations were implicit in the relationship and restrictive conditions imposed by the Indian Trade legislation.
A debate on the political rights and status of Indian Tribes ensued immediately after the ending of the Revolutionary War, when the Congress of the Confederated States proposed to make a treaty with






78


the Six Nations of the Iroquois Confederacy against the objecti0 u of the State of New York. The position of New York was expr I i by Congressman James Duane to Governor Clinton in a 1784 memorandum of advice, stating:
Great difficulty arises from the interference of the proposed Treaty with the authority and views of Congress.
Five of the six Tribes of Indians were at open War with the United States. The general Treaty of Peace doth not mention nor extend to them. Coigres, therefore, on the 9th Art. of the Confederation, claims the exclusive Right to make this peace, and if the Tribes are to be considered as independent Natiqll), detached front the State, and absolutely unconnected with it, the Claim. of Congress would be uncontrovertible."
1'here is then an indispensable necessity that these Tribes should be tree
as ancient Dependents on this State, placed under its Protecton, with all iheir territorial Rights, by their own Consent publicly manifested in solemn ard repeated Treaties.
On this Ground the Tribes in question may fall under the Character of Members of the State with the management of whom Congress hath no concern t fed., 9th art., 4th Clause.)
Our own particular Ionor., Interest, and Safety require that these TriU*:s should be reconciled to the Idea of being Members of the State, dependent uiptn its Government, and resting upon its Protection. If we adopt the disgra I System of flattering them as great and mighty Nations, we shall once more. !ike the Albanians, be their Tools and Slaves, and this Revolution, in my Eyes, will have lost more than half its Value.
From these Observations it will follow, that the Stile as well as the Subs:in e of the Commumications on the part of the Governineit are very mat(ri .. I would say nothing of making p9I(ae or burying the Hatchet, for that wouhi be derisive to Congress, perhaps very justly. But I would study to carry oh the Intercourse (for I object even against the Term Treaty, which sens too rwv: t to imply Equality) with as much Plainness and Simplicity as possible, as if, I was actually transacting Business with the Citizens.
The Stile by which the Indians are to be addressed is of moment also. Thcry re used to be called, Brethren, Sachems and Warriors of the Six Nations. I h pe it will never he repeated. It is sufficient to make them sensible that they i r" spoken to, without complimenting twenty or thirty Mohawks as a Nation, a a few more Tuscaror'is and Onandagas as distinct Nations.
It would be not less absurd than mischievous. They should be taugir by separating from the Oneidas and entering into a wicked War, they had he, :me wretched and destroyed themselves, and that the public Opinion of their ImD >rtance had long since ceased.
The position and views held by the New York officials and representatives were rejected by the national government. The policy adopted after the Revolutionary War was expressed in a communication to Congressman Duane from George Washington, who advocated:
My ideas, therefore, of the line of conduct proper to be observed, not '>:iy towards the Indians but for the government of the citizens of America, in their settlement of the western country, which is intimately connected therewith, are simply these.
That the Indians should be informed that, after a contest of eight years f';r the sovereignty of this country, Great Britain has ceded all the lands to the United States within the limits described by the article of the provisional treaty.
That as they (the Indians) maugre all the advice and admonition that c.ili be given them at the commencement and during the prosecution of the war, could not be restrained from acts of hostility, but were determined to join their arms to those of Great Britain and to share their fortunes, so consequently, with -i less generous people than Americans, they would be made to sharp the same fate, and be compelled to retire along with them beyond the Lakes. But, as we prefer peace to a state of warfare; as we consider them as a deluded people: as we persuade ourselves that they are convinced, from experience, of their error in taking up the hatchet against us, and that their true interest and safety






79

must now depend upon our friendship : as the country is large enough to contain us all; and as we are disposed to be kind to their and to partake of their trade, we will, from these considerations and from motives of compassion, draw a veil over what is past. and establish a boundary line between them and us. beyond which we will endeavor to restrain our people from hunting or settling, and within which they shall not come but for the purloses of trading, treating, or other business unexceptionable in its nature.
The limits being sufficiently extensive, in the new country, to comply with all the engagements of government, and to admit such emigration as imay be supposed to happen within a given time, not only from the several States of the Union but from foreign countries, and, moreover, of such inquitude as to form a distinct and proper government: a proclanmtion, in my opinion, should issue, making it a felony (if there is power for the purpose, if not. imposing some veo:'y heavy restraint) for any person to survey or settle beyond the line: and the officers commanding the frontier garrisons should have pointed and peremptory orders to see that the proclamation is carried into effect.
Measures of this sort would not only obtain peace from the Indians. but would. in my opinion, be the surest means of preserving it: and would dispose of the land to the best advantage, people the country progressively and cheek land robbing and monopolizing, which are now going forward with great avidity, while the door would be op'wn and the terms known for every one to obtain what is proper and reasonable for himself, upon legal and constitutional grounds.
Accordin-ly. the first treaty after conclusion of the Revolutionary ar ~~ws contracted at Fort Stanwix on October 22. 1784. between the
"Conmmis sioners Plenipotentiary from the United States, in Congress assembled, on the one Part, and the Sachems and Warriors of the Six Nations. on the other." On November 5 of the same year. Washington wrote to General Henry Knox, later to become his first Secretary of War. commenting on the treaty:
After much time spent (charity directs us to suppose in duly considering the matter) a treaty has at length been held with the Six Nations at Fort Stanwixmuch to the advantage it is said of the United States, but to the great disgust of New York-and fruitlessly, it is added by some, who assert that the Deputies on the part of the Indians were not properly authorized to treat. How true this may be. I will not pretend to decide: but certain it is in my opinion that there is a kind of fatality attending all our public policies.
A month later. on December 14, Washington commented further on the continuing disputes with the individual States on the matter of Indian affairs:
For the copy of the treaty held with the Six Nations, at Fort Stanwix, you will please accept my thanks. These people have given. I think, all that the United States could reasonably have required of them: more, perhaps, than the State of New York conceives ought to have been asked from them, by any other than their own legislature. I wish they were better satisfied. Individual States opposing the measures of the United States, encroaching upon the territories of each other, and setting up old and obsolete claims, is verifying the predictions of our enemies, and is truly unfortunate.
The competing claims to territories and to governing authorities were cause of great turmoil between several of the separate states and the General Government under the Confederation, and subsequently when succeeding to government under the United States Constitution. Indeed, ratification of the Constitution was threatened in no small measure by the disputes over territorial claims of several states, and ratification withheld by a few on account of the conflicting claims. States' claims to controlling authority over Indian Tribes and Indian territories figured centrally in several of the disputes, which were not easily settled.






8o

Tn part., the early problems ill federal, state, and Indian relations stemmed from the colonial experiences of the separate states, and the weaknesses caused bv divided and indefinite authorities under the Articles of Confederation relating to Indian matters. The states, succeeding to a level of sovereigntv in the realm of a newly-won independence, were determined to guard both their sovereignty and independence., including their claims to equality with all other states. Admitting suiperiority to no other states, there was a growing incliation amonr them to infer. and assert, an inereasinr inferiority in the powers and national rights of the Indian Tribes. Gaining the element of sovereign cntv for themselves. America's citizens and political. forces were ready to bein denying the pre-existing sovereignty and considerations of rights to the Indian nations.
Population growth in the colonies and in the independent United States had generated its own influences upon public policy toward Indians. An intermittent schedule of increases is shown below: Population of the Colonies
Year:
1624 -------------------------------------------------------- 9, )0
1649 ------------------------------------------------------- 15, 04)0
1689 ------------------------------------------------------- 200, 000
1715 ------------------------------------------------------- 434, 000
1733 -------------------------------------------------------- 750, 000
1776 -------------------------------------------------------2, 243, 000
Population of the United States
1790 -------------------------------------------------------3, 929, 214
1800 -------------------------------------------------------5,308, 483
1820 -------------------------------------------------------9, 633, 822
1850 ------------------------------------------------------- 12. 191, 876
1880 -------------------------------------------------------50, 155, 783

SUM MARY OF GENERAL ITISTORICAL DEVELOP" wEN'TS
The foundations for unique relations with Indian Tribes were formed in major degree prior to establishment of the United States, both when declaring independence and when later framing its Con'stitution.
Indians were known to be the aboriginal people of the land, "the first possessors of the soil." In governing relations among themselves in the course of their New World endeavors, the states (and churches) of Europe had acknowledged that some rules should be observed in their dealings with the Indian people. Recognition that native people were possessed of certain natural rights-variously characterized as being political, proprietary, and human in nature.-flowed from the early 16th Century.
During the colonial period, the sovereignty and nationhood of the various tribes continued to be recognized with various degrees of fidelity. The different colonies, in behalf of themselves, their settlers, or their European sovereigns, engaged different Indian nations in treaties for the varied purposes of quieting Indian property claims; maintaining peaceful relations among one another: and forming alliances against external forces. The governments of the Indian people were recognized to be diverse in nature and in their levels of sophistication. Indeed, some were regarded by non-Indian students of their





81

operation as being among the most advanced of mankind in the latter 18th Century.
In executing the Revolutionary War, colonial leaders urged uncommitted Indian nations to abandon national neutrality and to join their arms and men in alliance with the new nation. The entreaty of Cornmader-in-Chief (3eorge Washington to the Delaware for their supply of reinforceiuent aid was coupled with the promise that, under accord with the new government, the Delaware nationhood would "remain sceure: your sovereignty forever intact."
During the years of the Confederation, the several states were inclined to recognize, first, their own sovereignty; and, secondly, the sovereignty of the tribes located within or adjacent to the respective states' territorial limits. Governmental powers conferred upon the Confederation, including the sole authority to deal with Indian tribes, were routinely ignored by the states. Treaties were made at both levels.
Provisions in the 1787 Northwest Ordinance became the first major national policy measure legislated to govern Indian relations in consideration of anticipated national expansion. The enactment constituted a principled "bill of rights" for the Indian Tribes, declaring "their property. rigJhts and liberty" as being inviolate to unconsented invasions or disturbance.
The Constituitional Convention of the same year acted to preserve the iower over Indian affairs exclusively with the national governnient, to prohibit further treaty making by the states.
In its constructive body, several sections of the United States' Constitution were to have immediate and continuing significance governing upon the nation's relations with Indian Tribes. Of these, the Commerce Clause, Supremacy Clause, and Prohibitions upon the States Clause, were to 1'e most crucial in giving definition of future relations while, in part. being declarative of national Indian policy.
Other portions of the U.S. Constitution having major relevance to Federal-Indian relations in their formative years included the Presidents treaty-making powers, and the powers of the Congress to authorize wars and to appropriate funds. The nature of Indian tribal rights and political characteristics were later to be adjudged and partially defined in context with other Constitutional provisions or ainendments.
In giving effect to the Constitution through applications, the enactments of the First Congress of the United States, and the actions of its first President are instructive to an examination of the issues of both treaties and trust relations or responsibilities.
On August 20. 1789, the Congress appropriated $20.000 for purposes of "negotiating and treating with the Indian tribes." On July 22, 1790, Congress passed the first of a series of Indian Trade and Intercourse Acts (or Nonintercourse Acts), which were to be the framework for its "regulation of commerce with the Indian tribes."
Federal courts have ruled that the Nonintercourse Acts had the effect of creating a "trust relationship" between the United States and "any Indians, or any nation or tribe of Indians" within its national boundaries. The Acts prohibited "any person or persons" and "any state" from securing title or claim to any lands which might be acquired from Indian parties. unless "by a treaty or convention entered into pursuant to the Constitution."






82

Late in 1790, President Washington informed the Senecas that the Act "will protect you in all your just rights." Contemporaneous documents, and the prior experience during the period of the Confederation, indicate clear intent to protect Indians from the actions of others, while imposing a "legal incapacity" upon the tribes.
Tp}he Indian people were restricted from exercising their "right to sell, and the rirht of refusing to sell" their lands. except through instruments of authority available to the Federal government and to the tribes. The restriction was imposed not directly upon the tribes but bv rendering invalid anv transaction which might be undertaken independently by any third party, whether a state or private person.
Other evidence from the period could support a view that the "trust relationship" had its conception or source within the Constitution itself. The early debates on treaty-making and certain court decisions indicate that on one level, some of the treaties might be regarded as a constitutional instrument of a "trust relationship."
Certainly, the treaties were an expression of the "sovereign character and rights' of the tribes, as well as of the United States, in the order of the accepted usage a i-ong nations and international law. The Supreme Court was to siicrest in 1831 and 1832 that the attributes of Indian sovereignty might be the object of a trust relationship--directed toward the protection of tribal self-government and other rights, without necessitating a surrender of the sovereignty embracing them.
While the President and other officers of the United States were granted authorities to administer, regrulate, or superintend over "In(lian affairs" and "Indian relations," their powers were to have principle application against the actions of non-Indians. Except by treaty provisions, the power of the United States to !overn over Indian people, as such, was subject to certain limitations for some time.
Under the general laws of the United States, which were to remain in force throughout the nineteenth century, the Indian "rights of person or property" were to stand unimpaired "so long as such rights remain unextinguished by treaty between the United States and such Tndians." And., without their "consent," tribal lands were not to be "embraced within the territorial limits or jurisdiction of any state or territory: but all such territory shall be excepted out of the boundaries, and constitute no part of any Territory of any state or territory: but all such territory shall be excepted out of the boundaries, and constitute no part of any Territory now or hereafter organized until such tribe signifies its assent to the President to be embraced within a particular Territory."
Tribal funds or treasuries were to be placed under direct "trust control" of the United States more immediately than specific Indian lands. Under a number of treaties, dating from 1819 onward, various payments to tribes were to be placed in trust funds to be held by the United States for investment purposes, with designated levels of interest to be accounted or paid to the particular tribe. Under the first of these treaties with the Cherokees. the interest was to be applied to supply them "the benefits of education."
When the Indian Trade and Intercourse Acts were overhauled in 1834, the authority of the President and the Secretary of the Interior was broadened to allow expenditures of annuities and interest by






83
several methods and in several categories. Chief among these were "such purposes" as will "best promote" prosperity of the members and the "habits of industry," or otherwise satisfy "the imperious interest of the tribe of the individuals intended to be benefited."
One major use made of the Indian monies held by the United States was the making of loans to several of the states, and to a much more limited degree, to the developing of railroad companies. In 1875, a law was passed requiring the Indian men to engage in labor to earn the interest and annuities, or payments that were to be paid for the purchase of lands. When the custody of all tribal accounts and funds transferred to the U.S. Treasurer in 1876, a much broader role of "the Secretary of the Interior as trustee for various Indian tribes" was referenced in the law.
Provisions for allotting tribal lands to tribal members and families hbgan appearing with greater frequency in the treaties after 1850. A policy of seeking Indians' "surplus lands" had already been established under the national laws. The "restricted titles" to lands patented to allottees under some of the treaties differed slightly in character from the land titles later held in trust by the United States for allottees under the Indian Homestead Acts and the 1887 General Allotment Act.
The "trust relationship" underwent dramatic transformation with the implementation of the allotment policies. The politically redefined Indian "wards" were thrust into a veritable "battered-child syn1rome" under the "fatherly care" of the government. Great masses of TIndian lands were lost to Indian ownership. Indians were simulianeously designated as being "incompetent" and "citizen Indins"-faced for the first time with the application of state and local taxation-coincident to a scheduled expiration of personal and propertv trust status.
The trust relationship assumed its most negative forms under ap0lication of the allotment policies, which were to continue in force unt il enactment of the 1934 Indian Reorganization Act. The personal commitment of Indian Commissioner John Collier, supported by his executive superiors and the Wheeler-Howard Congressional hearings, provided the strongest force in particularly reversing the devastating effects of the prior policy.
In 1932. Collier joined in suimport of the Meriam Report conclusion that the primary need of the time was to "end the dissipation of the Indian lands." In 1933. he declared the policy and objectives of the Roosevelt Administration for the tribes to be: "(1) complete imo'nmic independence: and (2) self-determination."
Treaty-making had been the primary means of affecting policy obiectives for most of the nineteenth century. The first authorizations for Indian removals to the western territories had been secured by treaty more than a decade before the Administration of Andrew Jackson. Self-governing powers were maintained with several of the removed tribes in greater measure than had been practical for prior exercise in the settled states.
Treaties were relied upon for modifying or abrogating prior treaties with a particular tribe or nation. The negotiation records of the treaties sometimes reflected substantial differences in the nature of





84

promises made and the actual provisions contained in the offered treaties or the final result.
When the Congress ended the recognition of tribes as "independent nations which might be contracted by treaty," in 1871, it maintained in force the obligations and provisions of all existing Indian treaties then standing.
The major final Treaty Commission had recommended to the Congress in 1868 that a separate Indian I)epartment with its own Secretary be established to manage the nation's Indian problems and relations. That recommendation failed, together with those calling for general reform of the 1834 Indian Trade and Intercourse Act. The Congress did continue after 1871 to seek modifications in earlier treaties by method of ratified Executive Agreenents. partly due to the Indian consent provisions of several treaties. Also, Statehood Enabling Acts continued to exclude Indian Tribes and lands fom the operation of state laws and general taxing authority.
The plenary power of the Congress over Indian Iribes and related matters, including the question of treaty abrogations. began deriving clearer definition from the courts in the final decades of the nineteenth century and the first decade of the twentieth. The st rengthened powers of Congress, while perhaps never doubted, were clarified in context with the protective purposes to be obtained for the benefit of Indian people. In the same period, the nature of trust responsibilities received additional judicial readings, while the reserved rights of Indians to water and other resources under the treaties were firmly upheld.
The Indian Reorganization Act, as amended. preserved the provisions and obligations of treaties in "continuous effect" with respect to both tribes which voted to be excluded from IRA and those which chose to come under its provisions. General legislation affecting several federal agencies and programs in more recent times were often to include clauses preserving Indian treaty rights against modification or impairment by the operation of such law.
Of the pervasive litigation on Indian issues in the twentieth century, the compensatory claims cases brought by Indian peoples in the Court of Claims and later in the Indian Claims Commission supplied crucial implications regarding the continuing rights or resources yet held, or now lost. to the tribes.
The effects of the various Termination Acts in recent times continue to have policy implications for the issue of trust responsibilities, as the 1924 Citizenship Act did after its enactment. Related to these are the policy implications of terminating "status as Indians." and the legal importance attached to the protective shield of Indian "noncompetence" in the present era.




























SECTION V
EUROPEAN ROOTS OF FEDERAL-INDIAN LAW














SECTION V
This Section presents a general history of the origins and
application of Federal-Indian Law, from the point of its international and European, or colonial, roots. The basic state of the law relating to Indians at the time of American Independence, and as determined in the early judicial decisions, as well as at points of national expansion into the Spanish,
French, Mexican, and Russian territories, is shown.
Earlier we stated: "It is the status and character of Indian lands which forms a unique relationship between the people and government of the United States on the one hand, and the Indian tribes and people on the other. But equally important to the establishment and maintenance of that unique relationship and its character are the attributes of Indian people themselves, their cultural and political existence as selfgoverning societies, and the evolvement of the Indian heritage and history." And, we might have added, it is a matter of law. Yet little meaning is given to the statements when standing alone.
In early America and the early United States, frequent reference was made to the "law of nature" and the "law of nations" when trying to define or determine the nature of relationships to Indian people. or when attempting to delineate the extent of Indian and non-Indian rights. Such men as Thomas Jefferson, George Washington, Benjamin Franklin, and William Penn also spoke or wrote of the "moral law" a well-and in the same context. Other forms of law were, or were to become, involved also. The "common law," "provincial and colonial law," "constitutional law," "municipal law," and "treaty law," have each operated to control or influence the actions and rights of men and nations in the development of Federal-Indian relations. Even the "Law of the Scriptures" has been cited as authority, or as the then existing and enforceable law, for governing Indian relations in the past.
During the 1976 Bicentennial Celebration. a number of Indians from tribes throughout the United States came to Washington, D.C.. in July to propose substantial changes in national policies toward Indian people, including an abolition of the Bureau of Indian Affairs and establishment of a national government for Indian communities. In exercise of their First Amendment rights under the U.S. Constitution, they secured a seven-day parade permit from the municipal government of the city and held a demonstration in front of the White House from July 3 through July 9, peaceably petitioning the government and American people for a, response to their concerns. Their claims of rights under treaties, and to self-government under long established concepts of sovereignty, all were part of an inter-inix of law that came into play in a single situation--which is common in the field of Indian affairs.
~(87)






88

Importantly, the "Indian Trail of Self-I)eteriiination"' also had amniong its part icipants ill their quest resl)ected nie(icine mien an(l spiritual leaders. Their actions were gide(ld( through prayers and ImIed itation and ce'renionies. Thev y were from the sizeable seltonent of thie In(dian populationn who regard themselves as traditional ists, and from that portion which can unquestioningly believe in. or live by. the "immutable law of the Pipe." or the Sacred Calf )ipe. In their company. they also had a medicine man sent by his tribal people in Kansas to lend his strengths to their efforts. hlie having the purity and power to call in the tl nidler and lightning. The thunderstorms which came during their ceremonies in front of the White House were in conflict with broadcast weather forecasts on the first days. They were not so severe as to "put out the candles on Ainerica's Blentennial birthday cake." but they are part of the world of Indian living that maintains a belief for many in these immutablel. spiritual laws" of various native religions, varied as they are.
One point of the preceding example is that the formulation of future policy recommendations mnIst rely as much on a respect for the people affected by the policies as it might rely upon the abstract principles evolving from an examination and statement of the past and existing law of the United States. And, while it also speaks to the diversity of experience and cultures among Indian people. modern and ancient, it also demonstrates that any statement either about Indian societies, or on the law and legal theory or history. necessarily shall be woefully incomplete. Additionally. much which may generally be thought of as past, may., in fact. be present.
The late Felix Cohen. a leading authority on Ind(ian law. persuasivelyv argued that the general origins and form of the relationships between the United States and Indian tribes had their genesis in the writings and influence of "Spanish theological jurists of the sixteenth and seventeenth centuries." Chief ami ong these theologians was Francisco (de Vitoria. Cohen writes:
In the first place, we must recognze that our Indian law originated, and can still be most clearly grasped, as a branch of international law, and that in the field of international law the basic conepl)ts of modern doctrine were all hamminered out by the Spanish theological jurists. It was Vitoria that the Seventh Pan-American Conference. on D)ecemnber 23. 1933. acclaimed as the man who "established the founndations of modern international law."
However. Cohen notes that "Vitoria himself is not directly cited in any of the early opinions of the United States Supreme Court" and that "these opinions frequently refer to statements by Grotius and Vattel that are either copied or adapted from the words of Vitoria." Cohen adds:
It is thus clear that the tradition of legal teaching carried Vitoria's theories on Indian rights to the judges and attorneys who formulated our legal doctrine in this field. They remained free, of course, to reject Vitoria's theories, but they could not be ignorant of the idea that Indian tribes were dependent nations. possessed of certain rights of sovereignty and property, yet requiring special governmental protection. This history of American legal doctrine reveals that no intellectually satisfying substitute for this basic theory of Indian relations has ever been developed.
The Cohen view itself is somewhat less than satisfactory. There were distinctive differences between the Spanish and English laws relating to relations with Indian tribes, and with respect to the recog-





89

nation of the Indian rights. The crucially decisive influence of the Spanish law and history was not fully effected until after the various treaties with Mexico in the mid-Nineteenth Century and the acquisition of territories in the Southwest. Vattel's "Law of Nations," cited most often by the Supreme Court and also in the discussion of public policy decisions by leaders of the young United States immediately after its founding, reflected a strong anti-Spanish and anti-Catholic bias that sometimes disclaimed positive influence from either source. In fact, Vattel credits the enlightened views of English statesmen and scholars, or philosophers on the legal rights and liberties of mankind, as being the major influence on his treatise-apart from its historical study of law-and as providing the best promise for the future at the time of completing his work in 1760.
Any attempts to lay the origins or development of national Indian law and relationships to any single European source would doubtlessly prove unworkable and invalid. It would ignore the developments in social, legal and political theory in the two centuries preceding 1776, and disregard much of what has happened since then. The several European nations did accede to some common rules and similar practices, and postulated some diverse theories which were not mutually exclusive in their influences upon one another of the nations. All had their impacts upon what was to happen to Indian people in, America, but in degrees that need not be quantified in this report.
Cohen, as have other writers, attributes the beginnings of the trust relationship in form, or guardianship, to the first quarter of the Sixteenth Century with the Spanish imposition of the "encomienda" system, "by which Indians as well as their lands were placed in the hands of Spanish conquerors." The most readable modern account of this period can be found in Wilcomb E. Washburn's Red Man's Land-White Man's Law, published in 1971. The Washburn selections demonstrate that the various theories were often internally inconsistent; that the intensity of State, Church, and private debates moderated against the development of what might have been called "established law." Although the subsequent "Law of the Indies" did reach that plane, the early Spanish law and Catholic doctrine was subject to radical revision with each change of the Pope.
Thus, in 1537, we can find the papal Bull Sublimis Dews granted by Pope Paul III, stating in part:
We define and declare by these letters, or by any translation thereof signed by any notary public that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved ; should the contrary happen, it shall be null and of no effect. Emperor Charles, it seems. ordered the confiscation of the Papal Bull and the destruction of all copies reaching the New World. The petitioner who had secured its issuance from the Pope was promptly imprisoned. Eight years previously, the papal predecessor Pope Clement VI had implored the same Emperor, Charles V, to maintain the operative policy. He suggested:
We trust that, as long as you are on earth, you will compel and with all zeal cause the barbarian nations to come to the knowledge of God, the maker and 78-127-76-----7





90

founder of all things, not only by edicts and admonitions, but also by force :and arms, if needful, in order that their souls may partake of the heavenly kingdom.
An imaginative lawyer might construe this 1529 edict as evidencing clear recognition of Indians' sovereignty and standing as nations from the mere use of the word "nations." Felix Cohen did cite the 1'537 decree in his article, "Spanish Origin of Indian Rights," to suggest a relationship between it and the 1787 Northwest Ordinance of the U.S. Congress of the Confederation, which reads:
The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty they shall never be invaded or disturbed, unless in just and lawful wars authorized by the Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.
Stating that the Northwest Ordinance is the "first important law of the United States on Indian relations," Cohen remarks that the. "declaration of human rights" issued by Pope Paul III is repeated "almost word for word" in the latter American document.
The caution that Cohen expresses in the same article is important to keep in mind. He states:
Many other instances might be cited of speific laws exemplifying the responsibility of the Crown for the protection of Indian rights. In Spanish jurisprudence, however, as in our own, there was always danger that a concept of speci l responsibility for the protection of Indian rights might come to be transformed into a justification for the exploitation of Indians and the confiscation of their property. The institution of guardianship (encomienda) is Hispanic America, like the old "reservation system" in the United States, show how easily this transition may take place.
The Spanish law and Catholic doctrines do have fundamental importance to the questions of Indian Affairs. as do the laws of certain other foreign nations, partly because of their past presence in territories which ultimately were to become part of the United States; partly because their prior Jaws have relevance to rights succeeding their departure or land cessions to other nations; and because of the provisions of treaties between the various nations affecting the rights of Indian people. A brief review of the major transactions between European nations themselves, and with the United States demonstrates the relevance.
The Louisiana Purchase from France in 1803 is one example. France had based its claims to the region between the Carolinas on the East and Old and New Mexico to the West by "right of discovery' in the explorations in 1541 by De Soto, and Father Marquette's travels on tle Mississippi River in 1673. In 1680, La Salle claimed title to the area in the name of King Louis XIV, on "point of taking possession" of portions for settlement. In 1712, and again in 1717, the lands were granted by King Louis through charter to individuals and to companies for establishment of a trade colony, anticipating "a considerable commerce." When France ceded Louisiana to Spain in 1763. it was stipulated in the Versaille treaty "that the inhabitants be preserved and maintained in their possessions."
By another secret treaty in 1800, Spain had ceded the larger portion of the Louisiana territory or province back to France. This had followed a treaty of commerce between Spain and the United States allowing U.S. citizens trade and travel rights on the Mississippi River