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[COMMITTEE PRINT]

AMERICAN INDIAN POLICY
REVIEW COMMISSION

FINAL REPORT

SUBMITTED TO CONGRESS
MAY 17, 1977

VOLUME ONE OF TWO VOLUMES

DFPOSrrORYi

.' v-/ 1 li

UNI

Printed for the Use of the
American Indian Policy Review Commission

1/
[COMMITTEE PRINT] ^

AMERICAN INDIAN POLICY
REVIEW COMMISSION

FINAL REPORT

SUBMITTED TO CONGRESS
MAY 17, 1977

VOLUME ONE OF TWO VOLUMES

Printed for the Use of the
American Indian Policy Review Commission

U.S. GOVERNMENT PRINTING OFFICE
92-185 WASHINGTON : 1977

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

AMERICAN INDIAN POLICY REVIEW COMMISSION

Senator JAMES ABOUREZK, South Dakota, Chairman
Congressman LLOYD MEEDS, Washington, Vice Chairman
Senator LEE METCALF, Montana JOHN BORBRIDGE, Tllngit-Haida

Senator MARK HATFIELD, Oregon LOUIS R. BRUCE, Mohawk-Sioux

Congressman SIDNEY R. YATES, Illinois ADA DEER. Menominee
Congressman SAM STEIGER, Arizona 1 ADOLPH DIAL, Lumbee

Congressman DON YOUNG, Alaska 2 JAKE WHITECROW, Quapaw-Seneca-Cayuga

Ernest L. Stevens, Oneida, Executive Director
KiRivE KiCKiNGBiRD, Kiowa, Ocncral Counsel
Max I. RicHTMAN, Professional Staff Member

1 Served in the 94th Congress.

2 Replaced Congressman Steiger on the Commission.

fH)

American Indian Policy Review Commission

CONGRESS OF THE UNITED STATES

c Ofpkk BuiLDTMa Amhcx No. 2
2d AMD D STwcm. SW.

ASHINGTON, O.C. 205IS
PHONE: 202^I2S-IZM

May 17, 1977

Vice-President Walter F. Mondale
United States Senate
Washington, D. C.

Congressman Thomas P. O'Neill

Speaker of the House of Representatives

VJashington , D . C .

Gentlemen :

I am submitting herewith the report and reconinendations of the
American Indian Policy' Review Commission.

The report is responsive to the provisions of P. L. 93-580 which
established this Commission and charged it with the responsibility to
conduct a comprehensive review of the historical and legal developments
underlying the Indians' relationship with the Federal Government and to
determine the nature and scope of necessciry revisions in tlie formulation
of policy and programs for the benefit of Indians.

ITie Commission's recoirmendations have been arrived at after a care-
ful review by the Conmission and 11 Task Forces of the Federal-Indian
relationship.

The Cormassion ' s Organic Act requires that any recommendations in-
volving the enactment of legislation shall be referred by the President
of the Senate or the Speaker of the House of Representatives to the ap-
propriate standing committee of the Senate and House of Representatives
respectfully, and that such committees shall report thereon to the re-
spective house within two years. We urge you to support early implementa-
tion of the Commission's reconmendations to assure that the Federal Govem-
irent's responsibility to the Indian people is met.

Sincerely,
J James Abourezk

ChairTn£in
(lU)

EXECUTIVE STAFF
Director
Ernest L. Stevens, Oneida
General Counsel Professional Staff MemJ>er

KiRKE K. KiCKixGBiED, Kiowa Max I. Richtman

Clerical Assistants

Ernestine Ducheneacx, Salish and Kootenai

RosEMARiE Cornelius, Sioux-Oneida

^'INONA Jamieson, Seneca

Special Assistant to the Commission
A. T. Anderson, ilohawk-Tuscarora-Cayuga

Director of Research
Gilbert Hall

PROFESSIONAL STAFF

Catherine Romano

Harrt Ross

Laurel Rule

Richard Shipman

Sarah Sneed, Clierokee

Eileen Stillwaggon

Tony Strong, Tlingit-Klukwan

John Sykes, Sr.

Peter Taylor, Special Counsel

Kathryn Harris Tijerino, Comanclie^

Grace Thorpe, Sac and Fox

Donald Wharton, Special Counsel

Julia Zafren

Suzanne Alin

Paul Alexander, Special Counsel

Laurel Beedon

JENICE Bigbee. Comanche

Dennis Carroll

Ernest Downs

Nancy Evans

Thomas Fassett, Seneca

Ella Mae Horse, Cherokee

Carol Kirk

John Kough

Thomas McGeady

Jana McKeag. Cherokee

Margaret Pena

Charles Peone, Wiyot

Michael Poolaw, Kio-wa

(V)

TASK
Hank Adams, Asslnlbolne-Sioiix
Wilbur Atcitty, Navajo
Earl Barlow, Blackfeet
Robert Bojorcas, Klamath
Sherwin Broadhead
Matthew Calac, Rincon
John Echohawk, Pawnee
Alfred Elgin, California Pomo
Jerry Flute, Sisseton-Wahpeton
Raymond Goetting, Caddo
George Hawkins. Southern Cheyenne
Jo Jo Hunt, Lumbee
Yvonne Knight, Ponca
Peter MacDonald, Navajo
Phillip Martin, Mississippi Choctaw

FORCE MEMBERS

Lillian McGarvey, Aleut

Lorraine Misiaszek, Colville

Edward Mouss, Creek-Cherokee

Douglas Nash, Nez Perce

Alan Parker, Chippewa-Cree

Browning Plpestem, Otoe-Missouri-Osage

Luana Reyes, Colville

Dr. Everett Rhoades, Kiowa

William Roy Rhodes, Pima

Helen Scheirbeck, Lumbee

Kenneth Smith, Wasco

Reuben Snake, Winnebago

John Stevens, Passamaquoddy

Peter Taylor

Gail Tliorpe, Cherokee-Creek

Mel Tonasket, Colville

Paul Alexander

James Bluestone. Hidatsa

Allan Cayous, Apache-Calvilla

Michael Cox, Creek

Bruce Davies, Oglala Sioux

Maria Facchina

Karl Funke, Keeweenaw Bay, Chippewa

Amos Hopkins, Kiowa

Stephen LaBoueff, Blackfeet

TASK FORCE SPECIALISTS

Paul Littlechief, Kiowa-Comanche

Roberta Minnis, Colville

Kathy McKee, Missouri Cherokee

Lorraine Ruffing

Rudy Ryser, Cowlitz

Sheri Scott

George Tomer, Penobscot-Maliseet

Donald Wharton

Patricia Zell, Navajo-Arapaho

CLERICAL AND SECRETARIAL

Arquero, E\xa., Cochlte Pueblo

Linda Bethea

Gail Bradford

Alice Clark

Marilyn Dufrane. Mohawk

Lisa Elgin, Oalif«rnia Pomo

Doris Gadson

Cynthia Gellner

Maxine Hill, Onondaga

Janet Hopkins

Darcy Johnson

Dianne Johnson

Cheryl Lewis

Ernestine Lewis

Gail McDonald, Mohawk

Barbara Morgan

Barbara W. Nicholson, Colville

Dawn Oakes, Mohawk

Deborah Pope

Pat Porter

Colleen Rainey

Carole Roop

Emmeline Shipraan

Cynthia Suver

Regina Tsosie, Navajo

Barbara Thomas

Toni Villagecenter, Sioux

Cheryl Wheeler

Annette Young, Navajo

CONTENTS

Page

Introduction 1

A policy for the future 3

Summary of recommendations 11

Ctiapter :

1. Captives witliin a free society 47

2. Contemporary Indian conditions 83

3. Distinctive doctrines of American Indian law 95

4. Trust responsibility 121

5. Tribal govei'nment 139

6. Federal administration of Indian policy 227

7. (^he economics of Indian country^ 301

8. Community services^ 367

9. Off-reservation Indians 425

10. Terminated Inldians 443

11. Nonrecognized Indians 457

12. Special problems 485

13. General problems

Separate views of Commissioners of the American Indian Policy Review

Commission :

Separate dissenting views of Congressman Lloyd Meeds, Democrat of

Washington, vice chairman 567

Separate views of Senator James Abourezk, chairman 613

Separate views of Indian Commissioners 619

(VII)

INTRODUCTION

A history, once thought ancient and dead, has risen to challenge this
generation of Americans. As never before, since the days of the last
century when they were forced to fight militarily for their lands, their
freedoms, and their existence, the Indian peoples of our country are
today stirring both the consciousness and conscience of the Govern-
ment and all elements of the Nation.

It is the fortune of this generation to be the first in our long history
to listen attentively to the Indians, and thereby to begin to understand
what they are saying, to recognize realistically their own points of
view, as a unique part of our population, and to heed their voices for
the righting of wrongs, the ending of frustrations and despair, and
the attainment of their needs and aspirations as Indians and as free
and proud Americans.

It is generally believed, mistakenly, that the Federal Government
owes the American Indian the obligation of its trusteeship because of
the Indians' poverty, or because of the Government's wrongdoing in
the past. Certainly American Indians are stricken with poverty, and
without question the Government has abused the trust given it by the
Indian people. But what is not generally known, nor understood, is
that within the federal system the Government's relationship with the
Indian people and their sovereign rights are of the highest legal stand-
ing, established through solemn treaties, and by layers of judicial and
legislative actions.

Perhaps someday in the future, the Indian people may return to
the bargaining table to renegotiate and reshape those solemn agree-
ments. But it must be done as equals, and not as one party coming, on
its knees, pleading as inferiors.

For the Federal Government to continue to unilaterally break its
agreement, especially to a people as unique to our history as are the
Indians, would constitute moral and legal malfeasance of the highest
order.

Today, the past must be used as a backdrop, rather than as an in-
dictment. But it is a backdrop that explains most of what must be
known about the present-day condition of Indians and their relations
with the Government and the rest of the American people. It is a way
of seeing into the mind of the Indian people of today. From the
earliest days of European settlement in what is now the United States,
and, more pertinently, since the founding of the Kepublic, the Indians
have been subjected to ambivalent attitudes and policies by the ad-
vancing non-Indian society and, after 1789, by the United States Gov-
ernment itself. On the one hand, every method has been employed to
force them to cease being Indians and to conform to the dominant
society, while on the other hand they have been led to believe, in part
and from time to time, that the Government would support their right
to survive as Indians and to practice their own culture — a'determina-

(1)

tion, which despite every adversity and pressure, they have main-
tained to this day.

They have survived. But it has been at a great cost to them. Th(
history of social experimentation of the Indians by those who gainec
mastery over their lives and fortunes resulted in decades of confusion,
hopelessness, and poverty, which the Indian people have assertec^
could never be corrected until they themselves could again be allowec
to determine their own lives and, like all free Americans, manage unC
control their own affairs.

Today we must ask the central question : Is the American nation—
now 200 years old, and 100 full years beyond the era of the Little Big^
horn — yet mature enough and secure enough to tolerate, even to eji-
courage, within the larger culture, societies of Indian people who
wish to maintain their own unique tribal governments, cultures, and
religions?

As Felix Cohen once said :

If we fight for civil liberties for our side, we show that we believe not in civil
liberties but in our side. But when those of us who never were Indians and never
expect to be Indians fight for the Indian cause of self-government, we are fight-
ing for something that is not limited by accidents of race and creed and birth ;
we are fighting for what Las Casas, Vitoria and Pope Paul III called the in-
tegrity or salvation of our own souls. AVe are fighting for what Jefferson called
the basic rights of man. We are fighting for the last best hope of earth. And these
are causes which should carry us through many defeats.

The question goes far beyond that of "restitution'' for past wrongs.
From the misdirected present, can the United States Government re-
direct its relations with the American Indians to enable them to deter-
mine their own lives now, and in the future ?

The question is ringing loudly in our ears today. Nor will it be
stilled — todajT^ or tomorrow — until it is answered.

A POLICY FOR THE FUTURE

This final report of the American Indian Policy Review Commission
represents 2 years of intensive investigative work encompassing the
entire field of Federal-Indian relations. Tlie last such investigation
occurred almost 50 years ago. The conclusions of that investigation
and its condemnation of the policies which had governed Federal ad-
ministration over the preceding 50 years brought an abrupt shift in
the statutory policies governing the Federal-Indian relations, a com-
plete repudiation of the policies which had controlled from the late
ISOO's to the mid-1930's. And yet the American Indian today finds
himself in a position little better than that which he enjoyed in 1928
when the Meriam Report was issued.

It has been the fortune of this Commission to be the first in the
long history of this Nation to listen attentively to the voice of the
Indian rather than the Indian expert. The findings and recommenda-
tions which appear in this report are founded on that Indian voice. It
can only be hoped that this Commission will be seen as a watershed in
the lo]ig and often tarnished history of this country's treatment of its
original people.

What are the explanations for the circumstances in which the In-
dian finds himself today? First and foremost are the consistently
damaging Federal policies of the past — policies which sought through
the first three-quarters of the 19th century to remove the Indian
people from the midst of the European settlers by isolating them on
reservations; and policies which after accomplishing isolation were
then directed towaixl breaking down their social and governmental
structures and throwing their land, water, timber and mineral re-
sources open to exploitation by non-Indians. These policies were
repudiated by Congress with passage of the Indian Reorganization
Act of 1934, but by this time severe damage had been done.

It is the legacy of these policies with which the Indian people
attempt to cope today; it is the legacy of these policies which this
Commission examines in this report; and it is the legacy of these
policies Avhich the people of the United States must resolv^e over the
next years.

One of the greatest obstacles faced by the Indian today in his di-ive
for self-determination and a place in this Nation is the American
public's ignorance of the historical relationship of the United States
with Indian tribes and the lack of general awareness of the status
of the American Indian in our society today. To adequately formu-
late a future Indian policy it is necessary to understand the policies
of the past. For this reason the Commission has included extensive
discussions of law and history in order to provide a foundation for
understanding matters which affect Indian people.

(3)

Foundations or Federal Indian Law

The relationship of the American Indian tribes to tlie United States
is founded on principles of international law. It is a political relation :
a relation of a weak people to a strong people; a relation of weak
governments to a strong government; a relationship founded on
treaties in which the Indian tribes placed themselves under the pro-
tection of the United States and the United States assumed the obli-
gation of supplying such protection. It is a relationship recogiiized in
the law of this Nation as that of a domestic, dependent sovereign.

It is a relationship which has sometimes in the past been honored but
more frequently violated and at times even terminated. It is a rela-
tionship which can and should be nurtured and cherished by this Na-
tion. The fact that the United States has not chosen to disavow this
relationship, has not chosen to simply abrogate its treaty commit-
ments, has not chosen to withdraw its recognition of Indians as sepa-
rate and distinct peoples with cultures, lands and governments of their
own — these facts set the United States above other nations in its
treatment of its native people, and provide a moral and legal setting
from which a forward-looking policy of Federal-Indian relations must
progress. No other course will do honor to this Nation; no other
course can hold any future for the Indian people.

Tlie fundamental concepts which must guide future policy deter-
minations are :

1. That Indian tribes are sovereign political bodies, having the
power to determine their own membership and power to enact
laws and enforce them within the boundaries of their reservations,
and

2. That the relationship which exists between the tribes and the
United States is premised on a special trust that must govern the
conduct of the stronger toward the weaker.

The concept of sovereignty and the concept of trust are imperative
to the continuation of the Federal-Indian relationship. These form the
foundation upon which our entire legal relationship with the Indian
tribes stands. These are not new precepts — they are old, dating from
the origins of this Nation. It can only be said that if they had been
consistently honored in spirit as well as in name, it would not have
heen necessary to convene this Commission. Without recognition of
these fundamental concepts acknowledging Indian rights, the work
of this Commission will have been in vain, for without these concepts
there is no future Indian policy — only Federal policy.

The Commission recognizes that there is substantial controversy sur-
rounding the concept of tribal sovereignity and the exercise of govern-
mental authority by the tribes within their reservations. The Com-
mission has devoted a significant portion of this report to analysis of
[judicial decisions relating to the powers of Indian tribes. The trend
of these decisions has favored the tribes in their efforts to achieve
good government within the reservations. We approve of the judicial
decisions which have thus far been rendered. But we caution that the
powers exercised by tribes must bear a reasonable relationship to legiti-
mate tribal interests such as protection of trust resources, mainte-
nance of law and order, delivery of services, and protection of tribal
government.

This Commission has not pn'oposed any legislative action with rer,
gard to the jurisdiction or authority of tribal governments. We have
rejected any such effort as being premature and not warranted by any
factual evidence. We note that there are some 287 tribal governments
within the United States (there are approximately 80,000 State, coun-
ty and municipal governments) and it is not feasible to attempt to
legislatively determine the precise powers of each of these govern-
ments in one legislative enactment. We also reject the notion that the
jurisdictional reach of Indian tribes Avithin Indian country should be
limited to their own membership alone. If such a position were adopted
it could truly be said that the tribes were mere social clubs, an assem-
bly of property owners, with no more authority than any civic associa-
tion. This surely was not the result contemplated by the tribes when
they entered into treaties with the United States. Nor is it a result to be ■■
desired by anyone today — Indian or non-Indian — when the counse-
quences are analyzed. For in many areas of Indian country the only
workable law enforcement authority present is that of the tribe.

The Commission does not advocate that resolution of jurisdictional
conflicts be left solely to the courts. To the contrary, we recommend .
that State and county governments sit down with the tribal govern-
ments and to the extent possible resolve their jurisdictional conflicts
to their mutual satisfaction on the basis of mutual respect. To the ex-
tent resolution cannot be achieved, then and only then will legislative
action by the Congress be appropriate. Clearly there are many areas
in which both the States and the tribes have a commonality of inter-
est and the discussion of State and tribf^l jurisdiction should not be
cast in totally adversary terms.

The Tritst RESPONsiBiLiTY

The concept of the trust relationship of the United States to the
Indian peoi)le is one which is not well understood and is th.e subject of
frequent debate regarding both its source and its scope. We have al-
ready noted that the trust relationshij) is one of the two most im-
portant concepts miderlying Federal-Indian law. This responsibility
originates first from the treaties negotiated wit)i Indian tribes in
which the United States acquired vast areas of land in exchange for
its solemn commitment to protect the people and projjerty of the tribes
from encroachment by U.S. citizens. Secondly, from statutory enact-
ment dating from tlie Continental Congress to the present, regulating
transactions between U.S. citizens and Indian people. A third major
source of this responsibility arises from a course of dealing in which
the United States in the latter half of the 19th century assumed do-
minion and control over the people and property of Indian tribes, im-
posing a vast array of regulatory authority over Indians and their
property. "When the United States assumed this authority over Indian
people, it accepted an accompanying responsibility to Indian people.

While the exact parameters of the trust duty are not clearly defined,
the Commission has concluded that it would not be desirable to at-
tempt to spell out the duty in terms of statutory specificity. Like doc-
trines of constitutional law, the trust duty must be considered a con-
stantly evolving doctrine responsive to the changing circumstance of

the times. Certain broad concepts have been agreed upon which we
believe should guide future policy in relationship to the trust doctrine :

1. The trust responsibility to American Indians extends from
the protection and enhancement of Indian trust resources and
tribal self-government to the provision of economic and social
programs necessary to raise the standard of living and social well
being of the Indian people to a level comparable to the non-Indian
society.

2. The trust responsibility extends through the tribe to the In-
dian member, whether on or off the reservation.

3. The trust responsibility applies to all United States agencies
and instrumentalities, not just those charged specifically with ad-
ministration of Indian affairs.

These and other details of the trust obligation are more fully dis-
cussed in chapter four of this report. It is recognized that in many
areas affected by the trust, particularly social programs. Congress it-
self will determine the extent of the delivery of services. Chapter four
■contains numerous specific recommendations relating to the trust, in-
•cluding a requirement for preparation and filing of Indian impact
statements by Federal agencies proposing actions which will adversely
affect trust resources, and recommendations for a resolution of the
conflict of interest which presently pervades legal representation of
Indian interests. The principles enumerated above are just that — gen-
eral principles from which policy considerations must flow.

J Federal Administration^

One of the most serious impediments to the development of Indian
self-sufficiency today lies in Federal administration. Indian tribes, like
non-Indian communities, are plagued by an excessive number of Fed-
<^ral agencies offering different programs all of which must be inter-
related in order to achieve full community development. Unlike non-
Indian governments, however, Indian tribes and people often face
difficulties posed by statutory language or administrative rulings that
bar their eligibility for participation in programs. There is a continu-
ing tendency on tlie part of Congress and the Executive to overlook
Indian interests in the formulation of new legislation or programs. In
recent years there has been substantial improvement in this respect,
but it still remains a significant problem.

Most serious is the lack of responsiveness, particularly on the part of
the Bureau of Indian Affairs and Indian Health Service, to adhere
to the principles of "self-determination" as expressed by Indians and
the law. The problem of negative attitudes is compounded by an ex-
cessive administrative structure which interferes with the delivery
of funds to Indian people. Federal administrators and their
■excessive field structure compete with Indians for scarce cono-ressional
appropriations. ^

Finally, Indian project initiatives must be encouraged through a
program, planning, and budget process which is guided by Indian
priorities rather than to satisfy the needs of a self-perpetuatino-
bureaucracy. '^

It is the conclusion of this Commission that :

^ 1- The executive branch should propose a plan for a consoli-
dated Indian Department or independent agency. Indian pro-

grams should be transferred to this new consolidated agency where
appropriate.

2. Bureaucratic processes must be revised to develop an Indian
budget system operating from a ''zero" base, consistent with long-
range Indian priorities and needs. Tliose budget requests by tribes
should be submitted without interference to Congress.

3. Federal laws providing for delivery of domestic assistance
to State and local government must be revised to include Indian
tribes as eligible recipients.

4. To the maximum extent possible, appropriations should be
delivered directly to Indian tribes and organizations through
grants and contracts; the first obligation being to trust require-
ments. /

vEcoNOMic Self-sufficiency \/

Indian lands encompassed approximately 50 million acres located
on over 200 reservations in some 26 States. A 1975 General Account-
ing Office report on Indian natural resources estimated that Indian
lands include : 5.3 million acres of commercial forest land, including
about 38 billion board feet of timber; 44 million acres of rangeland;
and 2.5 million acres of cropland. Indians have superior claims to
water to develop their lands, and they have valuable rights to share
in the harvest of fish in the Pacific Northwest.

Deposits of oil and gas, coal, uranium and phosphate are found on
some 40 reservations in 17 States. Production of coal on Indian lands
in 1974 was 35.8 percent of the combined production on Federal and
Indian lands (1.9 percent of the Nation's total) ; excluding offshore
oil production, Indian lands produced 13.6 percent of the total pro-
ducj^ion value of oil and gas on all Federal and Indian lands (4.4
percent of the Nation's total) ; phosphate production on Indian land
was 35.4 percent of production on Federal and Indian land (4.9 per-
cent of the Nation's total) ; and Indian lands produced fully 100 per-
cent of the uranium value produced on all Federal and Indian lands.

And yet, for the most part, Indian reservations remain under-
developed and Indian people lack credit, remain poor, uneducated
and unhealthy. From the standpoint of personal well-being the Indian
of America ranks at the bottom of virtually every social statistical
indicator. On the average he has the highest infant mortality rate,
the lowest longevity rate, the lowest level of educational attainment,
the lowest per capita income and the poorest housing and transpor-
tation in the land.

How is this disparity between potential wealth and actual poverty
to be explained? At least one explanation lies in the fact that a very-
significant part of this natural abundance is not controlled by Indians
at all. Fractionated land ownership engendered by Federal laws
impedes efficient development projects in timbering, farming, and
ranching. Significant quantities of Indian natural resources are leased
out to non-Indian enterprises at rates significantly less than that
derived by non-Indians for comparable lands. Access to development
credit is often difficult to obtain, and tribes often lack the technical
skills necessary to undertake development of their own resources.
Eoads, communications systems and other elements of economic infra-
structure are frequently insufficient to support development efforts.

Indian opinion is virtually unanimous in the desire for economic
self-sutiiciency. Certainly not all tribes will be able to fully attain
this g'oal, but with proper support from the Federal Government,
many can. Clearly it lies within the best interests of the Indian tribes
and the United States to give full support to the development of eco-
nomic enterprises by the tribes.

1. The first order of business of future Indian policy must
be the development of a viable economic base for the Indian
communities.

2. Adequate credit systems must be established for Indian eco-
nomic development projects; funds must be established to provide
for land acquisition and consolidation; and policies must be
adopted which will favor Indian control over leases of their own
natural resources.

3. Technical assistance must be available to tribes both in the
l^lanning and management stages of operations.

4.' Every effort must be made to encourage and aid tribes in
■ ^ the development of economic projects relevant to their natural
" ' i;esdurce base.

Restoration and Recognition

Despite recent policies which have encouraged self-determination
and which have reaffirmed the permanent nature of tribal govern-
rrients, there are many tribes which suffer because of past policies
which failed to recognize their status, or sought to end it. Almost 100
tribes' relationship to the Federal Government was legislatively ended
dui'ing the 1950's when Congress adopted a policy called "termina-
tion." One hundred thirty other tribes ' have never been recognized
by the Federal Government usually because of bureaucratic over-
sight, and they too suffer because their status is not defined. There is
no reason why some 200 tribes should not benefit from the relationship
the United States maintains with other tribes, and there is no reason
why Federal policy should not be implemented equitably to all tribes.

1. Tribes which were terminated must be restored to their for-
mal political status and Congress must establish a legal process
for restoration.

2. Tribes which have been overlooked, forgotten, or ignored
must be recognized as possessing their full rights as tribes.

Urban Indians

Through policies of "relocation" the United States sought to re-
move Indians from the reservation environment to cities where they
would assimilate with non-Indian people. These policies were poorly
administered and unsuccessful in attaining their goal. The United
States bears some liability for the effect of these policies on Indian
people, yet today Indian people who live in cities find it extremely
difficult to avail themselves of the minimal federal services they would
readily receive on reservations. Aside from this question of respon-
sibility for past policies, the United States should also recognize that
Indian people in urban areas have special needs which Government

^ "Tribes " as It Is used here, includes bands and other Indian groups, and is more clearly
defined on pp. 461-462.

programs could help to alleviate. Unfortunately, Federal-Indian pro-
grams frequently ignore off-reservation Indians, and the structures
which urban Indians have established themselves and which could aid
in the administration of Federal programs.

1. Federal Indian programs should address tlie needs of oif-
reservation Lidians.

2. Programs directed to the needs of ui"ban Indians should en-
courage and utilize urban Indian service centers.

These elements make up the major thrust of this Commission's i-e-
port. They are, in large measure, the direct result of 11 task forces
which were assigned by Congress to investigate major areas of con-
temporary importance to Indian people. Task force studies were man-
dated in the following areas :

1. Trust Eesponsibilities and the Federal-Indian Relationship

2. Tribal Government

3. Federal Administration and the Structure of Indian Affairs

4. Federal, State, and Tribal Jurisdiction

5. Indian Education

6. Indian Health

7. Reservation and Resource Development and Protection

8. Urban and Rural Non-reservation Indians

9. Indian Law Consolidation, Revision and Codification

10. Terminated and Non-Federally Recognized Indians

11. Alcohol and Drug Abuse

These areas reflect Congress's initial understanding that Indian Af-
fairs were plagued by the following problems, that: (1) the trust
relationship and treaty rights were poorly defined and confusing con-
cepts basic to Indian law; (2) tribal governments held a poorly de-
fined and seldom-understood status in the Federal system; (3) Indian
people were perplexed and impeded by a massive bureaucracy whose
function and merit were perpetually questioned by Indians and non-
Indians alike; (4) Indians and non-Indians on reservations were en-
meshed in jurisdictional disputes with municipal, county. State, and
Federal powers; (5) education of Indians was questionably adminis-
tered and had disappointing results; (6) Indian health was sub-
standard; (7) reservations were underdeveloped and economic plan-
ning was insufficient for development: (8) off-reservation Indians
were alienated and disenfranchised; (9) Federal-Indian laws were
complex and often absolute, and never received the scrutiny necessary
for proper revision; (10) a number of tribes were unreasonablj^ ex-
cluded from the Federal-Indian relationship; (11) alcoholism and
drug abuse were afflictions which caused especially severe problems for
the Indian population. Additionally, two special task force reports
were prepared on the Management Study of the Bureau of Indian
Affairs and on Alaskan Native Issueg.

The Commission has utilized the work of these task forces in prepar-
ing this final report. Not all of the findings and recommendations of
the task forces have gained expression here, but this broad statement
of Indian policy falls generally into the context of the task force
conclusions.

A summary of the specific recommendations of this Commission
follows in the next chapter.

92-185—77 2

SUMMARY OF RECOMMENDATIONS

Two hundred six specific recommendations are set forth below and
numbered consecutively beginning with chapter one and concluding
in chapter thirteen.

Chapter One. — Captives Within a Free Societt

No recommendations.

Chapter Two. — Contemporary Conditions

The Corrmiission recorrvmeTids that :

1. Congress require the Assistant Secretary of Indian Affairs to
provide a comprehensive annual report on Indian matters which will
contain reliable, current, and accurate data.

The Secretary of Interior be directed to gather and maintain mate-
rial for this report from all Government agencies serving Indians.

The report be organized to present facts relating to Indian treaties,
agreements, and Executive orders; current land, population, tribal
government, economic, health, welfare, education, and housing statis-
tics in Indian communities ; material relating to the use of natural re-
sources on Indian land; and information on administration of all
Indian programs. A sample format for this proposed report can be
found in appendix C.

Chapter Three. — Distinctive Doctrines of American Indian

Law
No recommendations.

Chapter Four. — Trust Responsibility

The Corn/mission rec&m/mendts that:

2. Congress reaffirm and direct all executive agencies to administer
the trust responsibility consistent with the following principles and
procedures. The rationale for each proposal follows the Commission's
statements. In carrying out its trust obligations to American Indians
(including Alaskan Natives), it shall be the policy of the United
States to recognize and act consistent with these principles of law :

The trust responsibility to American Indians is an established legal
obligation which requires the United States to protect and enhance
Indian trust resources and tribal self-government and to provide
economic and social programs necessary to raise the standard of liv-
mg and social well-being of the Indian people to a level comparable
to the non-Indian society.

+i,''""i,'"^^^*®^^ involving trust resources, the United States be held to
the highest standards of care and good faith consistent with the prin-

(11)

cjples of common law trust. Legal and equitable remedies be availablej
in Federal courts for breach of standards.

Although the trust responsibility is a legally binding duty required
of all United States agencies and instrumentalities, and although Con-
gress has the ultimate responsibility for insuring that the duty is met,
there be in the executive branch one independent prime agent charged
with the principal responsibility for faithfully administering the

trust. , _^ T.

The trust responsibility extends through the tribe to the Indian mem-
ber, whether on or off the reservation. His or her rights pursuant to
this United States obligation are not atl'ected by services which he/she
may be eligible to receive on the same basis as other United States
citizens or which the tribe may be eligible to receive on the same basis
a^ anv other governmental unit.

The United States holds legal title to Indian trust property, but full
equitable title rests with the Indian owners.

3. Before any agency takes action which may abrogate or in any
way infringe any Indian treaty rights, or nontreaty rights protected
by the trust responsibility, it prepare and submit to the appropriate
committee in both Houses of Congress an Indian trust rights impact
statement, to include, but not be limited to, the following information :

Nature of the proposed action.

Nature of the Indian rights which may be abrogated or in any
way infringed by the proposed action.

Whether consent of the affected Indians has been sought and
obtained. If such consent has not been obtained, then an explana-
tion be given of the extraordinary circumstances where a com-
pelling national interest requires such action without Indian
consent.

If the proposed action involves taking or otherwise infringing
Indian trust lands, there must be notification whether or not lieu
lands have been offered to the affected Indian or Indians.

4. When considering legislation which may have an adverse impact
upon treaty or nontreaty rights of Indians, the Congress adhere to the
following principles.

The United States not abrogate or in any way infringe any treaty
rights, or nontreaty rights that are protected by the trust responsi-
bility, without first seeking to obtain the consent of the affected Indian
or Indians. Such rights not be abrogated or infringed without such
consent except under extraordinary circumstances where a compelling
national interest requires otherwise. With or without Indian consent,
such rights not be abrogated or infringed in any way except pursuant
to a congressional act which identifies the specific affected Indian
rights and which states that it is the intent of Congress to abrogate or
infringe such rights.

5. To diminish the conflict of interest prevalent when the Depart-
ment of Justice and the Department of the Interior provide legal serv-
ices to Indians, to provide for more efficient rendering of legal services
to Indians, and to otherwise improve the representation which Indians
receive for protection and enforcement of their trust rights, Congress
enact the following legislation :

There be established within a newly created Department of Indian
Affairs (see recommendations in chapter VI) an Office of Trust Rights

Protection. Its duties shall include, but not be limited to, cataloging
and assisting in the management of Indian trust property, advising
Indians and Indian tribes in legal matters and representing them in
all litigation and administrative proceedings involving Indian trust
rights. In appropriate field offices of the Department of Indian Affairs,
there be a legal and professional staff under the supervision of the
Office of Trust Rights Protection.

The Office of Trust Rights Protection be authorized to render all
appropriate legal services which now are rendered by the Department
of Justice and the Department of the Interior, provided that the
Indian client agrees to accept representation and services.

The Office of Trust Rights Protection have the primary responsi-
bility of the Federal Government for protecting, enforcing, and en-
hancing Indian trust rights, but this shall not relieve any Federal
agency from the duty to recognize and act consistent with the Federal
trust responsibility for Indians.

The Office of Trust Rights Protection act in the name of the United
States as trustee for Indians in all legal matters and proceedings, ex-
cept those which it refers to the Department of Justice for litigation.
It have the discretion to so refer those matters for which it does not
have the staff, resources or expertise to handle. The Office also have
the discretion and authority to engage private legal counsel to repre-
sent Indians, tribes or groups in trust matters. In such cases, the
United States Government may pay all fees and costs and the wishes
of the Indian clients shall be complied with, as much as possible, in
the selection of counsel. "Where there is conflict of interest between an
individual Indian and a tribe involving trust issues, the Office repre-
sent the tribe and have the discretion to engage private counsel to
represent the individual at Government expense.

The United States waive sovereign immunity for all actions involv-
ing Indian trust matters brought by the Office of Trust Rights Pro-
tection or private counsel engaged by it to represent Indians.

The Office be authorized to obtain whatever information, services,
and other assistance deemed necessary from other Federal agencies,
and such agencies be obligated to comply with such requests.

6. Federal courts be authorized to award attorne^^s' fees and expenses
and all reasonable costs incident to litiaation, including but not limited
to, expert witness fees, in cases in which an Indian or Indian tribe or
group engages private attorneys and is successful in protecting or
enforcing treaty, trust, or other rights protected by Federal statute.
Federal courts be given the discretion to order that all such fees and
costs be paid by the losing party or by the United States Government.

Chapter Five. — Tribal Government

The CoTnmission recommends that:

7. The long term objective of Federal-Indian policy be the develop-
ment of tribal governments into fully opeiational governments exercis-
ing the same powers and shouldering the same responsibilities as other
local governments. This objective should be pursued in a flexible
manner which will respect and accommodate the unique cultural and
social attributes of the individual Indian tribes.

8. No leoislative action be undertaken by Congress in relation to
tribal jurisdiction over non-Indians at this time.

9. Congress appropriate significant additional moneys for the main-
tenance and development of tribal judicial sj^stems :

Funding be direct to tribes.

Funding be specifically provided to enable tribal courts to^
become courts of record.

10. Congress provide for the development of tribal appellate court
systems.

Appellate court systems will vary from tribe to tribe and region tO'
region.

The development of tribal court systems will require tribal experi-
mentation and time.

Congress statutorily recognize such appellate systems as court
systems separate from State and Federal systems.

When tribal court systems are firmly operative, Federal court review
of their decisions be limited exclusively to writs of habeas corpus.

11. Congress provide by appropriate legislation that lands held in
trust for an Indian tribe and assigned to an individual Indian be
exempt from Federal taxation and that the income from such lands
also be exempt, in the same way that restricted and allotted lands are
presently exempt.

12. Congress provide by appropriate legislation that the benefits
received from those programs designed to aid in the economic develop-
ment of Indians shall not be subject to Federal taxation.

13. Congress amend the Internal Eevenue Code to provide that
provisions of the Code which apply to non-Indian governments are to
be applied in a like manner and to the same extent to Indian tribal
governments. This would include the same benefits enjoyed by individ-
uals in their relations to tribal governments.

14. Congress amend or repeal, as appropriate, those statutes which
authorize State taxation which are in conflict with Federal-Indian
policy to foster economic development of reservation Indians and
enhance tribal self-government. Specifically, State taxation of mineral
production on leased Indian lands be repealed or amended.

15. Congress provide by appropriate legislation that State taxation
within reservations be invalidated as applied to non-Indians when the
burden of such taxation falls directly or indirectly upon the Indian.

16. Congress enact legislation which provides that where an Indian
tribal government enacts a tax in furtherance of Federal -Indian pol-
icy, designed to enhance the tribes' self-governing capacity or to pro-
tect or foster tribal economic development of Indian people or the
ti-ibe, such tax will have the effect of preempting any competing State
tax which would be applicable to the same person or activity.

17. The Department of the Interior aid Indian tribes in the develop-
ment of comprehensive management plans for fish and wildlife re-
sources. Indian people must be involved in the management of their
own trust resources.

18. The executive branch undertake action to stimulate the tribes
and States to enter into cooperative agreements in the management,
allocation, and enforcement of off-reservation fishing activities by
both Indians and non-Indians. Such cooperative agreements must

recognize the riglits of the Indians in the fish resource and their re-
sponsibility in the management and allocation of that resource.

19. Congress appropriate funds necessary to aid individual tribes
and intertribal organizations in the development and management of
fishery programs.

20. Congress enact legislation authorizing the Department of the
Interior (Parks and Wildlife Division) with standby authoi-ity to
allocate fish resources and enforce such allocations as to Indians or
non-Indians or both, whenever the States oi- the tribes fail to regulate
those persons under their respective jurisdiction.

21. Section 18 of the Indian Reorganization Act (25 U.S.C. g 478),
Avhicli provides that no part of that Act shall apply to any reservation
wherein a majority of the adult Indians vote against its application,
be ]-epealed. In its place. Congress enact a savings clause to provide
that the rights of any tribe which has organized under the terms of
section 16 of the Act or formed a corporation under section 17 of the
Act will not be adversel}^ affected.

To accomplish this result, the Commission recommends the follow-
ing specific legislative actions :

Repeal section 18 of the IRA which reads as follows :

This Act shall not apply to any reservation wherein a
majority of the adult Indians, voting at a special election
duly called by the Secretary of the Intei'ior. shall vote against
its application. It shall be the duty of the Secretary of the
Interior, within one year after June 18, 1934, to call such an
election, which election shall be held by secret ballot upon
thirty da3^s notice.
Insert in place of this section the following lanijuage :

The rights o,f any Indian tribe which has chosen to or-
ganize under sections 16 and 17 of the Indian Reorganiza-
tion Act shall not be affected by this repeal.

22. Section 16 of the Indian Reorganization Act (25 U.S.C. § 476)
which authorizes tribes to organize under the provisions of that Act be
amended :

(1) to specifically reflect the fact that tribes have an inherent right
to form their owii political organizations in the form which they
desire; and (2) to provide that notwithstanding any provisions in
existing tribal constitutions which vest the Secretary with authority
to i-eview and disapprove ordinances enacted by the tribal government
shall only extend to those matters directly related to the trust responsi-
bility over the use and disposition of trust assets. However, those
tribes who wish to retain such authority on an interim basis shall be
authorized to do so.

To accomplish this result, the Commission recommends amendment
of section 16 of the IRA along the following lines:

The right to choose their natural form of government is the
inherent right of any Indian tribe. Amendments to tribal consti-
tutions and by-laws adopted pursuant to the Indian Reorganiza-
tion Act shallbe ratified and approved by the Secretary to protect
the trust assets and resources of the tribes.

In addition to all powers vested in any Indian tribe or tribal
council by existing law, said Indian tribe shall also be recognized
to have the following rights and powers : To employ legal counsel,

to prevent the sale, disposition, lease or encumbrance of tribal_
lands, interest in lands, or other tribal assets without the consent'
of the tribe ; and negotiate with the Federal, State and local gov-
ernments. The Secretary of the Interior shall advise all Indian
tribes and/or their tribal councils of all appropriation estimates
of Federal projects for the benefit of the tribe prior to the submis-
sion of such estimates to the Office of Management and Budget
and the Congress.

Notwithstanding the provisions of any existing tribal constitu-
tion or similar document wliich vests authority in the Secretary
to review and approve or disapprove proposed actions of said In-
dian tribes, the Secretary's authority over Indian tribes will only
extend or be directly related to the trust responsibility over the
use and disposition of trust assets. However, any Indian tribe
which may desire a continuation of their presently existing dele-
gation of authority to the Secretary is hereby authorized to do so.

23. Section 2 of title 25 U.S.C., be amended to provide that the au-
thority of the Secretary of the Interior over tribes shall only extend
to actions relating to protection of tribal trust assets. Within these
limits, whenever the Secretary finds it necessary to disapprove a pro-
posed tribal initiative, he must file a written statement with the tribe
notifying them of the reason for his disapproval of their proposed
action and afford them an opportunity for a hearing.

24. Section 81 of title 25 U.S.C., be amended to accomplish a result
similar to that proposed above, i.e., that whenever the Secretary dis-
approves any proposed contract dealing with trust assets, he provide
the affected tribe or person with a written statement of his reasons for
disapproval and provide them with an opportunity for a hearing.

To accomplish these results, the Commission recommends amenda-
tory language along the following lines :

That 25 U.S.C. § 2 be amended to include the following lan-
guage :

The authority of the Secretary of Interior over Indian tribes
shall only extend to these actions deemed necessary to protect
tribal trust assets and resources. In any action which the
Secretary finds it necessary to disapprove a proposed tribal
government initiative, the Secretary shall take such action
within 60 days of having been officially notified of the pro-
posed tribal action by the Indian tribal government and any
disapproval of the proposed tribal action shall be accompa-
nied by an opportunity for a hearing on the part of tlie tribe,
and the Secretary's decision shall be based on written findings
of fact which shall specify the reasons for his disapproval.
That 25 U.S.C. § 81 be amended in the following manner : The
third paragraph beginning "second * * *" shall read:

It shall bear the approval of the Secretary of the Interior
and Commissioner of Indian Affairs endorsed upon it. The
Secretary of the Interior and the Commissioner of Indian
Affairs shall disapprove any such proposed contract only
after finding that the proposed contract shall endanger the
trust assets or resources of the tribe or individual Indian.
Such findings shall be submitted to the proposed tribe and/or
Indian in written form specifying the exact reason for
disapproval.

25. Additional legislation be enacted to authorize tribes to override
Secretarial disapproval of their proposed use of trust assets. Such an
override must be coupled Avith a waiver of liability on the part of the
United States to the limited extent that the override may result in
loss.

Legislation be enacted establishing that if the Secretary disapproves
a tribal government initiative, contract, or other tribal action involv-
ing the use or disposition of a trust asset, the tribe shall be entitled to
override sucli Secretarial disapproval using the following procedures :

a. The Secretary shall supply the tribe with a detailed state-
ment of the reasons for his disapproval of their proposed use or
dis]30sition of the trust asset, Sjiecifically setting forth the loss he
believes may result from such tribal proposal.

b. After due consultation between the representatives of the
tribe and the Secretary or his representative, the tribal council
may, by formal resolution, elect to override the disapproval of the
Secretary. Such resolution must contain a specific waiver of lia-
bility on the part of the United States for losses which may result
as a direct result of the tribal override.

c. In the consultation process, the Secretary shall be held to the
highest standards of care and good faith consistent with the prin-
ciples of connnon law trust in advising the tribes of the potential
consequences of the proposed tribal decision.

d. A tribal override of a Secretarial disapproval shall not di-
minish the trust character of the asset in question. The trust re-
sponsibility of the United States to aid the tribe in the imple-
mentation of their decision and to protect the future well-being of
the asset shall continue undiminished.

e. In any case in which the Secretary has reasonable cause to
believe that the decision of the tribal government may not reflect
the will of the majority of the members of a tribe he shall (may)
require a referendum of the tribal members, tlie expense of which
shall be borne by the United States and not the tribe.

f . In the event the Secretary determines that a tribal resolution
should be put to a referendum, he must notify the tribal council
within thirty (30) days of the passage of their resolution, and he
must call for such referendum vote not more than forty-five (45)
days after tendering such notification.

26. The Department of Justice issue regulations or orders direct-
ing U.S. attorneys to accept criminal referrals from qualified tribal
and/or BIA police or investiojators.

Congress hold oversight hearings to see that this recommendation
is accomplished or receive an explanation why it should not be done.

27. Congress hold oversight hearings with representatives of the
Department of Justice, BIA, and tribal authorities, particularly police
and judges to inquire into the jurisdiction relationship of the tribal
and Federal courts and ascertain what legislation, if any, is needed as
a consequence of this decision.

28. Congress hold oversitjht hearings with representatives of the
Department of Justice nnd Interior and with Indian tribal authorities
to ascertain the scope of this problem.

29. Corrective legislation, if any is needed, must be premised on the
continued protection of tribal self-government. The scope of the appli-

cation of the Assimilative Crimes Act must be strictly limited. It mustt
be recognized and accepted that the laws of the tribes will not always?
conform to the laws of States in which their reservation lies. This iS:
the meaning of self-government.

30. Legislation be passed providing for retrocession adhering to the*
following principles :

Retrocession be at tribal option with a plan.

A flexible period of time for partial or total assumption of juris--
diction, either immediate or long term, be provided.

There be a significant preparation period available for those)
tribes desiring such, with a firm commitment of financial resources
for planning and transition.

There be direct financial assistance to tribes or tribally desig-
nated organizations.

LEAA be amended to provide for funding prior to retrocession i
for planning preparation, or concurrent jurisdiction operations..

Provisions be made for Federal, corporate, or charter status for"
intertribal organizations (permissive, not mandatory).

There be tribal consultation with State and county governments
concerning transition activities (no veto role, however).

The Secretary of the Interior :

(a) Act within 60 days on a plan or it is automatically
accepted ;

(b) Base nonacceptance only on an inadequate plan;

(d) Within sixty (60) days after passage of the Act, the
Secretary of the Interior draft detailed standards for deter-
mining the adequacy or inadequacy of a tribal plan. Such
standards be submitted to Congress who shall have sixty (60)
days to approve or disapprove such standards.

Any nonacceptance of retrocession by the Secretary of the In-
terior be directly appealable to a three-judge district court in the
District of Columbia ; and

The Depai'tment of the Interior be obligated to pay all reason-
able attorney fees as determinexl by the Federal court, except
where such appeal is deemed by the court to be frivolous.

Once partial or complete retrocession is accomplished, the
Federal Government be under a mandatory obligation to defend
tribal jurisdiction assertions whenever any reasonable argument
can be made in support of them.

31. Title II of the 1968 Indian Civil Rights Act be amended so
that it is crystal clear that this Act was not intended as a general
waiver of sovereign immunity of the tribes. The holding in Lon-
casslon v. Leekify, 334 F. Supp. 370 (D., X.INL, 1971) authorizing a
money judgment against the tribes be specifically rejected by Con-
gress. While the courts must have authority to enforce substantive
aspects of the Act (as limited by the recommendation above), Indian
tribes like any other governments, must have sovereign immunity
and some protection for their officers if they are to be able to govern
fairly. Equitable actions such as mandamus against tribal officials may
be permissible, but they should be innnune from money judgment
when they work within their scope of duty. In this respect, they should

1)6 in the same position as State and Federal officials: i.e.. protected
when acting within the scope of duty but personally liable when
■aetinof beyond or outside their defined scope of duty.

32. The jurisdictional provisions of the 1968 Indian Civil Eights
Act be reexamined. Habeas corpus review is the only jurisdictional pro-
vision now included in this Act, yet the courts have assumed juris-
diction over a broad lange of actions which do not involve detention.
As the situation stands, the jurisdictional reach of Federal courts and
the remedial orders which they feel free to enter is virtually un-
limited. This is in complete contrast to all other Federal civil rights
legislation.

38. The part of the 1968 Indian Civil Rights Act providing for a
right to trial by jury be amended to specify that the right guaran-
teed by this subsection only be applicable to offenses which if charged
in a Federal court would be subject to a right to trial by jury. As
section 202(10) presently reads the rights to trial by jury would
theoretically apply to almost every offense a person might be charged
with, no matter how slight the penalty.

34. The provisions of the 1968 Indian Civil Rights Act limiiing the
penal authority of a tribe to fines of $.")00 or six (6) months imprison-
ment, or both, should be amended to increase these figures to fines of
$1,000 or one (1) year imprisonment, or both.

35. Section 1738 of title 28 U.S.C. be amended to specifically in-
clude Indian tribes among those governments to whom full faith
and credit be given. The purpose of this amendment would be to
clarify and reinforce the rulings of the majority of courts to the
effect that Indian tribes are on the same footing as States and ter-
ritories with respect to the application of full faith and credit
principles.

36. Congress amend title II of the 1968 Indian Civil Rights Act
to provide a mechanism for limited appeals to United States district
courts after exhaustion of all available ti-ibal remedies. The need for
such a provision is directly related to: (1) the Commission recom-
mendation for according full faith and ci'edit to tribal laws and court
judgments; and (2) to the expanding rolo of tribes in civil and crimi-
nal matters involviner non-Indians. This legislation should adhere to
the following principles :

Existing Federal law permits Federal courts to review the
judgments of State courts for matters involving questions arising
under the I^.S. Constitution or Federal statutes.

The limited right of appeal proposed in this part would au-
thorize Federal court review of tribal court decisions in both civil
and criminal matters in extraordinary circumstances involving a
prima facie showing of a denial of due process (fundamental fair-
ness) or denial of equal protection, and /or when the amount in
controversv exceeds a specified amount ($10,000).

Section 203 of title II of the Civil Rights Act (25 U.S.C. g 1303)
which extends the privilege of the writ of habeas corpus to test
the legality of detentions by order of Indian tribes be amended
to provide a limited right of appeal from final orders or judg-
ments of the highest court system of the respective tribe in both
civil and criminal matters.

Appeal to the Federal court not be allowed until the petitioner
has exhausted all available tribal remedies. This "exhaustion" re-
quirement include all tribal appellate remedies including appeals
to regi(mal intertribaJ courts of appeal should the tribes elect to
enter into such intertribal compacts. The requirement for exhaus-
tion be rigidly enforced by the courts.

The review not turn on procedural requirements but rather be
premised on fundamental fairness based on the entire record. This
amendment folloAv the rule laid down in cases that this Act did
not "blanket in" the entire body of Federal case law but provides
for interpretation in a manner consistent with the needs and cus-
toms of tribal institutions.

37. Congress enact legislation guaranteeing the permanency of
tribal governments within the Federal domestic assistance program
delivery system.

38. Congress enact legislation to resolve the inconsistencies of Fed-
eral domestic assistance legislative and administrative procedures as
they define the status of tril)al governments within the Federal do-
mestic assistance program delivery system. The implementation of
principles which would resolve such inconsistencies establish a clear
dcfiuition of tribal government eligibility for each Federal domestic
assistance program and guarantee the jurisdictional independence of
tribal governments as permanent political entities within the Federal
domestic assistance program delivery system.

39. Congress authorize the waiver of administrative regulations of
Federal domestic assistance programs which condition eligibility on
population formulas. Allocation of funds, however, should employ
some population criteria such as that utilized by BIA under P.L. 93-
638 to provide adequate funding to tribes with smaller population
bases.

4:0. Congress establish Federal policy recognizing the sovereign
right of a tribal government to form its own government. In accord-
ance with Federal policy, eligibility criteria of Federal domestic assist-
ance programs not force tribal governments to form consortiums or
intertribal affiliations in order to'become eligible for Federal domestic
assistance.

41. Congress amend the Intergovernmental Cooperation Act of 1968
(40 U.S.C. § 535 and 42 U.S.C. § 1401) to include tribal governments
m the scope of intergovernmental activities and access to Federal pro-
gram information provided for under the Act.

42. Congress amend the Law Enforcement Assistance Act (42
U.S.C. § 3711, et seq.) to remove State jurisdiction over tribal govern-
ments in the service delivery system of Law Enforcement Assistance
Administration programs, thereby allowing programs and moneys to
flow directly to the tribal government.

43. Congressional recognition of the legal status of tribal o-overn-
ments include the recognition that tribal governments must have the
financial resources necessary to support the basic operations of tribal
government, so that tribes may effectively exercise their inherent
sovereign powers.

44. Conore^s direct the Bureau of Indian xVffairs to undertake a
needs assessment of each tribal government to determine tribal capa-
bility to finance the basic operations of tribal government.

45. Congress authorize the evaluation of the administrative regula-
tions of self-determinatio2i grants program, and require the revision
(if regulations where such regulations narrow the scope of congres-
-ional intent articulated in the Indian Self-Determination and
Education Assistance Act.

46. Congress assure that in both administrative and judicial pro-
ceedings, Indians will be assured competent, independent counsel.

Chapter Six. — Federal Admististratigx

The ComTnission 7'eeommends that:

47. Congress enact affirmative legislation to reaffirm and guarantee
tlie permanence and viability of tribal governments within the
Federal system.

48. Congress clarify the elicribility of tribal governments as prime
sponsors for Federal domestic assistance programs and other pro-
grams delegated to State and local governments.

49. Congress enact legislation establishing tribal governments as
equal to State governments in Federal domestic assistance programs.
This includes amendment of all enabling legislation, program acts,
and administrative regulations which require tribal governments to
come under State jurisdiction.

50. Congress amend the Intergovernmental Cooperation Act to
include tribal governments, and enact the Federal Program Infor-
mation Act (S. 3281) to include Indian tribes.

51. Congress appropriate such funds as are necessary to allow the
])reparation of operations and procedure manuals to be used by tribal
governments in their administration of tribal government affairs.
These manuals would include operation models presenting alternative
systems of financial management, accounting, personnel policies and
procedures, management information and organization structure.

52. Congi-ess enact Senate Bill S. 2175 — Public Participation in
Government Proceedings Act of 1976.

53. The executiA'e branch establish an Indian Career Service con-
sistent with statutory provisions and be charged with the responsibil-
itv of developing the employment standards as required by section 12
of the Indian Reorganization Act of 1934.'

54. The executive branch propose a plan to implement the provi-
sions of section 12 of the Indian Eeorganization Act of 1934 by
establishing standards for the hiring of Indians apart from the re-
oiiirements of civil service laws in the Bureau of Indian Affairs and
the Indian Health Service.

55. Congress amend section 12 of the Indian Reorganization Act
of 1934 to make the Indian preference applicable to all Federal
agencies administering programs specifically directed to Indian
affairs.

^ A complete lesral analysis with findings related to Indian preference laws is contained
in the Task Force Xo. 9 final report, vol. I, pp. 106-120.

56. The executive branch coordinate efforts to provide for the direct
administration of contract funds by the Indian people.

57. The executive branch direct the implementation of section 7(b)^
of the Indian Self -Determination and Education Assistance Act (25-
U.S.C. § 450e(b) supp. 1976) to direct its applicability to all Federal
agencies; further to direct the General Services Administration to
amend Federal procurement regulations to :

Clarify the scope and intent of section 7(b).

Emphasize that a contradicting order cannot modify a con-
gressional Act.

Clarify that title VII, section 703 (i) of the 1964 Civil Rights.
Act provides for permissible preferences.

Provide standard Indian preference language be included.

58. The executive branch direct that the Office of Federal Contract
Compliance within OINIB offer a statement in support of the amended
Federal procurement regulations.

59. The Bureau of Indian Affairs compile and maintain a perma-
nent list of qualified Indian contractors; such a list to be maintained;
standards being maintained ; such lists to be available to all Federal
agencies.

60. The executive branch coordinate and consolidate all technical
assistance efforts into a single agency.

61. The executive branch establish a national professional and tech-
nical Indian skills bank administered by Indians.

62. The executive branch direct and coordinate all agencies to estab-
lish a model National Indian Technical Assistance Center — consoli-
dating personnel with technical assistance grants and contracts. Such
consolidation to run parallel to existing BIA service units to test the
feasibility of an independent agency service center.

63. The President submit to Congress a reorganization plan creat-
ing a Department of Indian Affairs or independent agency to be com-
prised of appropriate functions now mainly administered by the
Bureau of Indian Affairs. Indian Health Service, and agencies within
the Interior and Justice Departments. Rights protection be consoli-
dated as set forth in chapter four of this report.^

64. The plan for a transfer of appropriate programs and functions
to the new agency include a review of those programs identified in
this chapter. In the interim, the President establish a tempoiary spe-
cial action office within the White House which would be charged with
responsibility for preparing a plan for the President.

65. The President designate the Secretary of the Interior and the
Secretary of Health, Education, and Welfare to implement and co-
ordinate efforts to evaluate and plan the transfer of various agencies in
the event of the establishment of a department or of an independent
agency.

66. Congress authorize a management study of the Indian Health
Service to be conducted utilizing experts from the public and private
sector and representatives from the Indian community.

* A legal analysis of the mandates of Indian contracting under 7(b) is contained In the
final report of Task Force No. 9 In vol. I, pp. 221-230.

3 The authority of the President to reorganize the executive branch (see Chapter IX,
Title 5, U.S.C.) does not include the creation of a new cabinet or executive department,
the President needs to submit to Congress a reorganization plan.

67. The President submit to Congress an appropriate plan for the
removal of all Indian education programs from the Office of Educa-
tion, in the Department of Health, Education, and Welfare and the
Bureau of Indian Affairs, to a consolidated independent Indian
agency. Such Executive action would establish :

Stronger lines of communication between tribes and the source
of educational funding;

An administrative structure that would support the develop-
ment of tribal control ;

Direct targeting of moneys and services to tribal communities;

A reliable data base, such that effectiveness of fund utilization
can be monitored;

Programs that permit individualization of services to meet the
unique needs of each project; and

Direct rather than coincidental aid for educational problems.

68. The Secretary of the Interior implement an action plan for the
modernization of the Bureau of Indian Affairs in order to change it
from a management to a service agency. Such a plan give maximum'
consideration to the Commission's "BIA Management Study" pro-
posals. Generally, these are :

A new organizational structure be established to trasfer au-
thority and responsibility to the local level. Particularly, the
present area offices be divested of their line authority and be
established as service centers.

The establishment of a planning and budget system which will
stimulate Indian tribal participation and place more emphasis on
tribal project priorities in the congressional appropriation proc-
ess. Tribes should participate in the budget process directly with
the Commissioner or Assistant Secretary of Indian Affairs and
Congress to the greatest degree possible.

The reorganization of the personnel system to improve BIA
effectiveness while continuing to train, hire, and upgrade Indians.

69. The executive branch direct the Secretary of the Interior to
compile an appropriate manual of operations which will define and
publish minimum and standard threshold trust protection in manaire-
ment, procedures, accounting, monitorinir, evaluation, and reporting
which should be provided as a standard for all Departments and their
field offices as well as for Indian tribes.

70. The Secretary of Interior, under existinc: authority, undertake
the amendment of the rules of procedure of the Department of Interior
(42 CFR, subtitle (a), 1975) pursuant to sec. 4(d) of the Administra-
tive Procedures Act (5 U.S.C. ^ 553(e) and 43 CFR § 14.1) to provide
compensation for certain participants in the rulemaking and adjudica-
tory proceedings conducted by the Department of Interior, including
public informal hearings conducted in rulemaking procedures.

71. The Secretary of the Interior direct that the Commissioner of
Indian Affairs be given Assistant Secretary status. This can be accom-
plished administratively, but may require other supporting legislation.

72. The Secretary of the Interior remove the Associate Solicitor's;
Office of Indian Affairs from the Interior Solicitor's Office and create ■
an Office of the General Connsel in the Bureau of Indian Affairs.

73. The Secretary of the Interior establish a separate Office of In-
dian Program Development and Budget, as well as a separate Office off
Policy Analysis for Indian Affairs under the Assistant Seci-etar}^,
Program Development and Budget.

74. The Deputy Under Secretary for Indian Affairs become an inte-
gral part of an implementation team and direct Secretarial inhouse
administrative action.

75. The Secretary of the Interior direct the Bureau of Indian Af-
fairs to establish a duly elected board of regents to be recognized as
a unit representing tribes and tribal opinion to contract for and ad-
minister postseconclary schools.

76. The Secretary of the Interior direct the Bureau of Indian Af-
fairs to establish that a duW elected Board of Regents representing
each tribe be recognized as a unit representing tribes and tribal opin-
ions to contract for and administer those multitribal elementary and
secondary schools.

77. Congress establish permanent standing or special select commit-
tees for Indian affairs in each House or place all jurisdiction, over-
sight, and legislative authority in one joint select committee.

Chapter Sevex. — Economic Development

The Commission recommends that :

78. Congress appropriate funds and provide technical assistance to
insure the preservation, consolidation, and acquisition of Indian lands
upon which to build tribal future. This includes assisting tribes in
devising comprehensive land consolidation plans, and assisting land-
less tribes in establishing a land base. Congress, therefore, provide
legislation which would :

(1) Increase the funds in the Revolving Loan Fund (Indian
Financing Act) administered by the Bureau of Indian Affairs,
and create a setaside specifically for tribal land acquisition. Tliese
loans should carry lower interest rates and longer terms than now
exist for other enterprises receiving loans under the Fund. Present
requirements should remain which stipulate that there be a rea-
sonable prospect of repayment and that the applicants must have
exhausted other avenues of reasonable financing, but there should
be less rigid requirements relating to the profitability of the land.

(2) Mandate that the Revolving Loan Fund have standby line
of credit for tribes to use when immediate access to funds is neces-
sary to purchase key tracts of land which are for sale and are
essential to the tribe's acquisition or consolidation plans but would
probably otherwise be lost to the tribe during the loan application
process.

(3) Permit tribes to have a "first right of purchase"' option
when individually held trust land or non-Indian land within a
reservation is offered for sale.

(4) Amend section 5 of the Indian Reorganization Act to pro-
vide for an increased appropriation of funds for land acquisition,
particularly for those tribes which are presently landless!

(5) Amend sections 1465 and 14P5 of title 25 of the U.S. Code
to delete the provisions of Indian Financing Act funds which re-
stricts the use of purchase of lands outside the exterior boundaries
of Indian country unless the purchaser was the owner of trust or
restricted interests in the land prior to purchase.

(6) Amend the "excess property" provisions of the Federal
Property and Administrative Services Act, 40 U.S.C. § 471. et seq.,
to specifically provide for transfers of excess property, whether
located within or without the exterior boundaries of tribal lands,
to the Bureau of Indian Affairs for use by Indian tribes.

(7) Mandate that the Secretary of the Interior establish and
make public specific criteria for accepting Indian lands in trust.
Such criteria should include a presumption that lands owned in
fee by a tribe or to be acquired in fee shall be accepted in trust
unless the Secretary sets forth in writing sufScient reasons for
refusal.

(8) ^Mandate that the Executive examine and report to the Con-
gress on the feasibility of consolidating the Indian land acquisi-
tion loan program administered by the Department of Agricul-
ture and the BIA loan programs into one Federal-Indian loan
program designed exclusively for providing funds for tribal land
consolidation plans. Land should also not be recjuirecl as collateral

' for such loans.

70. To provide solutions for the debilitating problems presented by
the fractionated ownership of heirship lands, Congress enact legisla-
tion which would :

(1 ) Amend the U.S. Code to enable tribal governments to adopt
comprehensive plans for resolving fractionated heirship land
problems. Such plans could include the following procedures :

(a) Guaranteeing that tribes have first right of purchase
when heirship lands are sold.

(b) Authorizing the holders of a majority of the ownership
interests in a trust, or restricted allotment, to determine sale
of land.

(c) Enactment of tribal laws governing descent and dis-
tribution of fractionated heirship lands to allow purchase, at
the time of probate of estates, undivided interest in allot-
ments in heirship status which have reached an unreasonably
small fraction; restriction of inheritance of trusts or re-
stricted allotments to members of the tribe ; or restriction of
inheritance to a life estate with a remainder in the tribe, but
only upon payment of fair market value compensation to the
prospective heir.

(d) Condemnation with fair compensation by the tribe of
lands in heirship status which have reached \uireasonable
small fractions.

(2) Kepeal statutes which are obstacles to exchanges and/or
sales between owners of allotment interests.

(3) Eeform partitioning laws to facilitate partitioning of al-
lotment interests held by heirs, if partitioning is in the best inter-
est of their heirs and the tribe.

(4) Transfer the probate authority over trust property now
held by the Secretary of the Interior of the tribe.

92-185 — 77 3

26 i

(5) Amend the special laws regarding the Five Civilized Tribe(
and the Osage to merge them with the general laws governing th
other tribes, at least with respect to jurisdiction over small estate
($5,000 or less) and with respect to their capacity to write law;
governing the descent and distribution of propert^y.

80. Tribes be encouraged to develop compreliensive plans for lon^
term economic development premised on maximum Indian utilizatioi
of Indian owned resources. Recommendations for appropriation oi
grant moneys to tribes for planning purposes appears in chapters I
and 6 of this report.

81. Congress enact legislation which will facilitate tribes in acquir-
ing consolidated land areas sufficient to support efficient farm and cat-
tle industries. Specifically, Congress:

(a) Amend existing Federal laws relating to leasing of indi-
vidual trust allotments to provide that tribes should have a "first
right of refusal" on leasing of such lands.

( b ) Elsewhere in this chapter it is recommended that Congress-
establish a special fund for the purpose of aiding tribes in pro-
grams of land acquisition and consolidation. In addition to use of
these funds for outright acquisition of ownership, tribes be
authorized to draw from this fund in order to acquire leasehold
rights in individual allotments. Such autliorization must be de-'
signed to accommodate the special credit needs of individual allot-
tees which cause them to annually renegotiate what purport to be
long term leases.

82. The Bureau of Indian Affairs revise its policies regarding
leasing of agricultural lands in the following respects :

(a) Rental terms correspond to general lease terms of com-
parable grade lands held by non-Indians in the surrounding area.
Where practicable rentals should be premised on percentage of
crop values rather than fixed rates per acre.

(5) Leases contain strong conservation requirements with pen-
alty provisions adequate to assure compliance by lessees.

(d) Tribes be encouraged to contract with the BIA to perform
inspection and enforcement duties.

83. The BIA and tlie tribes develop long-tenn range management
plans to realize the potential benefits of a renewed, high producing
grazing range. These plans provide for: (1) range and soil inventories
to determine current range capacity : (2) timetables for adjusting herd
size to capacity; (3) grazing permit systems; (4) development and
prudent use of range improvements to raise the carrying capacity; and
(5) education programs to promote good range management practices.

In addition, these plans evaluate the short term economic impact
which diminishment of herds will cause to individual Indians during
the period necessary to regenerate such rangelands. A program similar j
to the past "Soil Bank" program should be instituted to provide in- ;
centive to individuals to reduce their livestock holdings.

84. The Bureau o,f Indian Affairs implement programs necessary j
to provide teclinical assistance and training to tribal people to aid them i]

in adopting modern farming and range management. Specifically, the

a. Review its funding requests for support of State extension
services and seek additional funds for this purpose as appear
necessary.

b. Develop vocational education programs to be offered at the
reservation level to train adults and students at the secondary
educational leA'el in techniques in agriculture, range management,
and other subjects relevant to natural resource development.

85. Congress hold oversight hearings to ascertain the adequacy of
the current funding level of the revolving loan fund for purposes of
agricultural and livestock development.

86. In order to clarify the legal authority for Indian tribes to regu-
late, manage, and sell their own tribal resources, Cono-ress amend : 25
U.S.C. § 406— Sale of Timber on Lands Held in Tnist ; and 25 U.S.C.
§ 407 — Sale of Timber on Unallotted Lands.

25 U.S.C. § 406 Sale of Timber on Lands Held Under Trust.

Amend § 406(a) by inserting a period after Interior in
line 3 and striking the remainder of the sentence and the
following sentence.

Amend § 406 by adding a new paragraph at the end of the
section as follows :

(g) Bonds for performance and reclamation pursuant to
contracts under this section may be required by the Secretary
or the owner of the timber in accordance with provisions
under § 407.
25 U.S.C. § 407 Sale of Timber on Unallotted Lands.

Amend § 407 by designating the present section as para-
graph (a). In line one after "sold" insert "b^^ authority of
the tribal council with approval of the Secretary of Interior".
In line four, insert a period after Interior and delete the re-
mainder of the paragraph. At the end of the paragraph insert
a new sentence : "Regulation of timber sales under this sec-
tion and § 406 may be superseded by regulation pursuant to
tribal constitution, charter, or ordinance, provided that such
regulation is not inconsistent with the provisions of this
section."

Amend § 407 by adding a new paragraph (c) to read as
follows :

(c) Nothing in this section shall prevent the adoption by
the tribal council of regulations for the management of natu-
ral resources within the reservation, and after such regula-
tions have been approved by the Secretary of the Interior
they shall be controlling and regulations by the Secretary of
the Interior under this section which may be inconsistent
therewith shall no longer be applicable.

87. To resolve the difficult problems in management in the continu-
ing waste of Indian timber resources occurring because of the frac-
tionated heirship^ pattern of ownership of forested allotments, Con-
gress amend existing Federal law relating to :

(1) Sale of timber on trust allotments to provide a first option
to the tribes.

(2) Authority to the tribe to acquire existing powers of attor-
neys now held by the BIA upon a showin<? that the affected al-
lotted lands have been included in a comprehensive tribal forest
management plan.

88. The BIA make a study of its existing forest management prac-
tices and regulations.

A special task force be formed comprised of experts in the
areas of forest management to evaluate the present BIA forest
management program and develop a modernized comprehensive
forest management program for the future use of the Bureau and
the tribes. The members of this task force be drawn from the
the public and private sectors of the forestry industry and in-
clude timber managers of Indian tribes and the BIA.

89. In order to provide for reforestation and regeneration of the
millions of acres of Indian forest which have been clearcut by private
companies under sales contracts approved by the BIA, the Congress
appropriate funds to enable those tribes affected to undertake the
necessary regeneration and reforestation programs.

90. Congress enact legislation to permit tribes to contract with pri-
vate enterprises or Forest Service for timber management.

91. The Secretary of Interior allow the tribes having legal rights ;
over water to develop their own water codes designed to regulate all
forms of water usage.

92. Congress enact legislation to provide for an Indian trust impact
statement (as outlined in trust section of his report) any time Fed-
eral or State projects affect Indian water resources.

93. The Secretary and the Bureau of Indian Affairs take the follow-
ing actions or provide tribes with the financial capability to :

1. Inventory all tribal water resources.

2. Complete land use surveys particularly to determine lands;
which are irrigable or which can use water for other beneficial!
uses.

3. Conduct adequate engineering studies of the Indian water-
resources necessary for litigation.

4. Make available to the tribes funds to conduct legal and en-
gineering research regarding particular water resources and tO)
proceed with litigation where necessary.

94. Congress investigate litigation in the San Juan River Basin, the ■
Rio Grande Basin, and the Colorado River Basin, and it likewise in-
vestigate the Walton cases, the Bel Bay case, and the Big Horn case
to ascertain the scope of Federal conflicts of interest.

95. Congress amend 42 U.S.C. § 666 known as the McCarran amend-
ment to specifically exclude Indian water rights from its provisions.

96. The Secretary of the Interior direct the BIA to work with
Indian tribes and the Bureau of Reclamation to (1) identify those
Indian lands served by BIA irrigation projects which would most
benefit from IMS ; and (2) plan and provide guidance to implement
IMS on those lands.

97. Congress provide the United States Geological Service and the ■
Bureau of Mines with the funds necessary to compile mineral inven-
tories of all tribal lands. These inventories be field geological surveys
using Indian people as trainees. The results be confidential to the
tribes.

98. Congress provide the Division of Tribal Resource Development,
Bureau of Indian Affairs, with funds to train a minerals negotiating
team composed of known international and national experts approved
by the affected tribes. These experts would be at the disposal of Indian
tribes to aid and advise during negotiations.

99. The Bureau of Indian Affairs discontinue outdated royalty
agreements, lengthy lease periods, no readjustment clauses, vague
employment and environment clauses, and waivers from tribal taxa-
tion. Title 25, §§ 171 and 177 of the Code of Federal Eegulations^
should make clear that alternatives exist to the outdated lease agree-
ment presently in use.

100. Congress provide funds to the Department of Interior to ef-
fectively monitor Indian mineral agreements and insure that produc-
tion is accurately reported, royalties, and other fees promptly paidy
employment and environmental provisions honored. Monetary
penalties be imposed for noncompliance.

101. Congress provide funds to set up a low interest loan fund to
aid those tribes who wish to engage in joint ventures.

102. Congress provide legislation to prohibit any State taxation of
non-Indian mineral developers in their transactions with Indians
within the tribal lands.

103. If the tribes decide to enter joint ventures, agreements with
developers, ownership and control of minerals and processing be kept
in Indian hands. Contracts for work on technology purchases would
be examples of such agreements. Funds be made available for tribes
to employ legal counsel and geological experts to aid them in their
mineral contract decisions whenever possible.

104. The U.S. Government make available technical assistance and
teaching personnel in geological fields so that Indians can learn to be
surveyors for their own tribes.

105. The present laws be amended to insure tribal control of the
development of Indian-owned natural resources including water, coal,
oil, uranium, gravel, and clay, and all other minerals. The laws, once
amended, be flexible enough to allow the tribes to determine for them-
selves the best form of organization which will enable them to con-
trol development and realize the maximum financial returns from the
development of their natural resources.

106. Title 25, §§ 171 and 177 of the Code of Federal Regulations,
make clear alternatives exist to the outdated lease agreement (con-
tracts), most immediately with regard to the development of coal.
Reclamation regulations also be clarified.

107. Congress amend the Freedom of Information Act to exempt
tribal proprietary rights from its application.

108. The United States Bureau of Labor Statistics collect accurate,
uniform, and consistent statistics on an annual basis on the Indian
labor force on every Federal and State reservation. The Bureau also
collect statistics on jobs available on each reservation, by type of eco-
nomic activity, and should indicate if the job is held by an Indian or
non-Indian.

109. The executive branch require the Bureau of Indian Affairs and
the Department of Labor to keep accurate and detailed statistics on
every participant in federally funded manpower programs. Partici-
pant's subsequent job status be monitored for at least 5 years.

30 ^

110. The executive branch require that the Bureau of Indian Affairs
and the Department of Labor coordinate their manpower programs
with tribal development programs and Economic Development Ad-
ministration. EDA specify for the BIA and DOL the manpower re-
quirernents for their projects including the setting up as well as the
operation. BIA and DOL institute the necessary traming programs
in advance of the EDA projects.

111. Education of Indians be relevant to the needs of the com-
munities and that emphasis be placed on education and training in
hard sciences, business, and administrative management disciplines.

112. The Office of Management and Budget take the necessarj^ ac-
tion to insure that :

An approach is developed which will coordinate Federal efforts
at the reservation level ;

Continuous evaluations are conducted of the effect that Federal
programs have on the standard of living at Indian reservations
including developing information systems to support such evalu-
ations; and

Annual reports are submitted to the Congress on progress made

in improving the standard of living of reservation Indians and

on any needed changes in legislation to improve the effectiveness

of Federal programs.

If early action is not taken, we recommend that the Congress enact

appropriate legislation.

113. The executive branch direct the development of physical infra-
structure programs through the joint efforts of the tribes, the Depart-
ment of the Interior, the Federal Aid to Highways System, the Com-
merce Department, and the Department of Transportation. Such a
program be part of a special economic stimulus effort for tribes. It
could also include significant increases in the amount of capital to
be made available through grants and loans.

114. Congress appropriate sufficient funds to upgrade the existing
transportation facilities in the Indian communities and provide for
a maintenance program that would not allow a deterioration of exist-
ing facilities.

115. Congress enact legislation designed to amend 25 U.S.C. § 1522
to increase the $50,000 limitation on nonreimbursable grants to Indian-
owned economic enterprises.

116. Congress enact legislation to insure that funds and technical
assistance available through SBA's "(8(a) Program" (25 C.F.E.
§ 124.8 et seq.) and "7(a) Program" (25 C.F.E. § 122 et seq.) are ex-
tended to businesses which are chartered or operated by tribal govern-
ments.

117. Congress enact legislation to insure that the technical and man-
agement assistance available through OMBE is extended to Indian
business enterprises on the same basis and with the same priority as
it is extended to other minority business enterprises.

118. Congress enact legislation to provide that the tribal govern-
ment may waive its immunity from suit.

119. Congress hold oversight hearings to determine the feasibility
of the establishment of an Indian development bank to provide for
the demand for capital in Indian country and at the same time recog-

iiize and compensate for the unique requirements of lending in Indian
country necessitated by the United States trust responsibility. A care-
fully considered development bank project may go a long way in re-
vei-sing the existing dependency structure in Indian country thereby
reducing Federal transfers over the long run.

120. Congress hold oversight hearings regarding investment of
trust funds to determine what legislation is necessary to assure that
trust fimds draw full interest at prevailing commercial rates.

121. Congress hold oversight hearings with Economic Development
Administration, Small Business Administration, Office of Minority
Business Enterprise, Department of Labor. Bureau of Indian Affairs,
and Department of Transportation to determine what the obstacles
are to successful business development in and near Indian communities.

Chapter Eight. — Commtjxity Services

The Commission recommends that :

122. Indian Health Service (IHS) establish a formalized mecha-
nism through which IHS officials can work closely with Indian people
toward the successful implementation of Public Law 94—437.

123. Congress appropriate sufficient funds for the continuance of
present Indian centers in urban areas which assist Indians in obtain-
ing medical and other social services ; and should encourage, with funds
and guidance, the establishment of additional such centei'S in all urban
areas where Indians live.

124. Congress create in the Office of Civil Rights (OCR) a monitor-
ing and enforcing division targeted at discriminatory urban health
providers.

125. IHS receive supplemental fundings for providing outreach
medical care to isolated, rural Indians.

126. Congress hold oversight hearings regarding the implementa-
tion by IHS of the Indian Self-Determination and Education Assist-
ance Act (Public Law 93-638).

127. Congress hold oversight hearings to determine Indian needs in
the areas of health care facilities, construction, and maintenance, and
appropriate sufficient funds to meet those needs.

128. Congress hold oversight hearings to ascertain the success of
mobile health vans at the Xavajo and Rosebud Reservations and on
TV satellite fomierly used in Alaska : and determine whether these
programs should be expanded to isolated, inaccessible areas.

129. Congress hold oversight hearings to ascertain the problems re-
garding the high turnover in personnel at IHS and act to remedy
these problems.

130. Congress create a medical para-professional corps to be used
on Indian reservations, particularly in the areas of alcoholism and
mental health.

131. IHS be funded to allow the expansion of present training pro-
gi-ams so that they are located in individual service units and geared
to specific staff shortages in those units.

132. Congress appropriate funds for ongoing orientation programs
to educate IHS employees in Indian culture, and to provide for Indian
interpreters in all service units.

133. Congress request the General Accounting Office to conduct
management study of the Indian Health Service and periodically tl
audit all IHS services. T

134. The executive branch direct all Federal agencies to report it
Congress on problems regarding the coordination of budget cycles
and, if necessary, request legislative reform.

135. Congress reorganize the Indian housing program and give ones
agency the primary responsibility for coordinating and administering.'
the program. Upon establishment of a new independent consolidated 1
Indian agency, as recommended in chapter VI of this report, all In-
dian housing programs should be transferred to that agency.

136. Congress direct IHS to report on tribal needs for fully equipped
ambulances and other vehicles to transport nonemergency patients on
reservations and should then appropriate necessary funds to provide
such services.

137. The Department of Agriculture review and revamp its food
supply system to insure consistent delivery of nutritious, health-giving
goods to the Indian people, with particular emphasis on high-risk
groups such as infants, children, pregnant women, the elderly, and
the handicapped; and, to insure the simultaneous use of both food
stamps and donated foods for those tribes desiring it.

138. BIA replace the monopolistic trading post, with its high prices
and inferior stock, with as many efficiently managed food stores as are
needed for accessibility by Indian people Avherever they live on the
reservation. These stores be under Indian management.

139. The executive branch upgrade tribal programs for education
in the areas of hygiene and nutrition.

140. IHS upgrade the demonstration projects heretofore adminis-
tered by National Institute on Alcoholism and Alcohol Abuse.

141. Congress enact legislation for the transfer of all Federal educa-
tion programs from their present agencies to the consolidated Indian
agency recommended elsewhere in this report.

142. Congi-ess enact legislation that would aid tribal governments in
assuming the responsibility for control of education in accordance
with their desires. Such legislation to include :

(a) Amendments to Public Law 81-874 and 81-815 such that:
(1) the dollars directed to aid schools educating Indian students
would be funneled through a tribal monitoring system, then to the
school; (2) a set-aside provision is made to cover costs of tribal
administration.

(b) Amendments to Public Law 93-638 such that: (1) a duly
elected board of regents may be recognized as a unit representing
tribes and tribal opinion to contract for and administer post-
secondary schools with a multitribal population; (2) in the case
of multitribal elementary and secondary schools, a duly elected
board of regents, including at least one representative from each
tribe, be recognized as a unit representing tribes and tribal
opinions to contract for and administer those schools.

(a) Amendments to Public Law 93-638 and Johnson-O'Malley
such that: (1) Any dollars contracted for the education of Indian
children through Public Law 93-638 and Johnson-O'Malley
would pass through a tribal monitoring system; (2) in utilizing
this contract or monitoring power with Public Law 93-638 or

Johnson-O'IMalley a tribe may decide the extent to which it wishes
to control the educational system affecting its children. This deci-
sion runs the gamut from total tribal ownership and control to
utilization of the tribal government only as a monitoring system
[:.• for Indian education moneys; (3) if the tribe opts to set up an
' organizational unit to monitor funds, a set-aside provision should

be made available to cover the costs of tribal administration.

{d) Amendments to all Indian education legislation such that :
(1) the State or local government not in compliance with agree-
ments and contracts for Indian education programs can be sued
by the tribe in a U.S. district court or in a State court of general
jurisdiction; (2) the court may grant to the plaintiff a temporary
restraining order, preliminary or permanent injunction or other
order including the suspension, termination, or repayment of
funds, or placing any further payments in escrow pending the
outcome of the litigation.
Note. — The language of the above two recommendations is taken
from H.K. 13367— Revenue Sharing.

143. Congress appropriate funds to accomplish the following
objectives :

{a) To establish standards for Indian education and develop
an accreditation system for Indian schools.

(6) To train non-Indians who teach and work with Indian
children as an interim measure until there are enough Indian
educators.

{c) To educate and prepare tribes who wish to organize and
operate their own educational systems.

{d) To subsidize a long-range effort to train and certify Indian
educators for Indian schools.

(e) To subsidize curriculum development and library develop-
ment for Indian schools.

(/) To provide an educational clearinghouse for information
on teaclier availability, new curricula, and special resources flow-
ing between schools and tribes.

{g) To give professional Indian educators the opportunity for
regular input on new educational methods and resources to the
tribes.

144. Congress provide for the improvement of off- reservation board-
ing schools by enacting legislation to accomplish the following:

{a) Define the goals and objectives for each school and create
an academic emphasis to fit its goals.

{!)) Assure that juvenile corrections are the responsibility of
the tribe and not the off-reservation boarding school.

{c) Organize an admittance and transfer policy for students.

id) Provide for sufficient diagnostic staff and development spe-
cialists for each school.

[e^ Provide a curriculum that is responsive to the students'
psychological and academic needs.

(/) Assure that teaching and guidance staff are chosen for their
ability rather than civil service rank.

{g) Give parents and communities the opportunity to contrib-
ute ideas and participate in school procedure.

(h) Give tlie school advisory boards real decisionmaking power,
as indicated by the Indian Reorganization Act, and organize an
elective process for advisory boards and boards of regents for
all BIA schools.

(?■) Set up funding structures to separate off-reservation board-
ing schools from other BIA-f unded scliools.

(/) Provide adequate financing and standardize accounting
procedures and fiscal reports of all schools.

(k) Remove postsecondary schools run by BIA from off-reser-
vation boarding school status so the tribes have the option to
control staff', budget, programs, eiirollment levels, and student
body .

145. Congress provide funding through Indian organizations and
tribes for scholarships in three academic areas: vocational education,
traditional liberal arts education, and graduate level education.

146. Each Indian student Avho meets tlie requirements of section
411(a) (1) of the Higher P^ducation Act of 1965 be entitled to a grant
in an amount computed undei- subsection (a) of section 411.

147. Congress enact legislation which Avould carr}- out a program
for funding and administering Indian postsecondary schools. Such
legislation should include :

(a) Funds for more Indian owned and operated colleges.

(b) Funds for research in the area of Indian higher education to
determine students' academic and psychological needs.

(d) Funds to establish liberal arts institutions on or near popu-^
lous reservations.

(e) Funds to establish institutions of higher learning specializ
ing in the culture, languages, and traditions of Indian people.

(/) Funds for specialized Indian higher education centers, sue
as the Center for Indian Law.

(g) Federal funding to institutions of higher learning serving
Indian students, similar to Johnson-O'Malley funds.

(h) Accreditation for Indian postsecondary institutions be pro
vided by an Indian designed and organized board.

148. Congress hold oversight hearings to clarify the division o:
responsibility between Federal and State agencies involved with In
dian affairs— including BIA, HEW, IHS, Office of Civil Rights, anc
Social and Rehabilitation Services — and direct these agencies to con
suit with State agencies to determine the causes of the breakdown
the delivery of services to Indians by the States.

149. The BIA and HEW promulgate regulations to clarify that
Indian trust money and land is not to be considered an asset by Stat(
and county governments in determining eligibility for welfare
programs.

150. BIA be required to publish in the Federal Register and in th(
Code of Federal Regulations their procedures and guidelines for gen
eral assistance under the Snyder Act.

151. Procedures and practices used in the BIA's 64 local welfare
offices be standardized and made uniform, ending the practice of dis
cretionary action on the part of the local BIA caseworkers.

152. Receipt of State or local oreneral assistance not make an Indian
ineligible for BIA assistance -^hen supplemental aid is needed.

153. Contrress, by comprehensive leafislation, directly address the
problems of Indian child placement and the legislation adhere to the
following: principles :

(a) The issue of custody of an Indian child domiciled on a res-
ervation is the subject of the exclusive jurisdiction of the tribal
court Tvhere such exists.

(i) T^Tiere an Indian child is not domiciled on a reservation
and subject to the jurisdiction of non-Indian authorities, the tribe
of ori^n of the child be given reasonable notice before any action
affecting his/lier custody is taken.

(d) Xon-Indian social service agencies, as a condition to the
Federal funding they receive, have an affirmative obligation — by
specific programs — to :

(i) provide training concerning Indian culture and tra-
ditions to all its staff;

(ii) establish a preference for placement of Indian children
in Indian homes ;

(iii) evaluate and change all economically and culturally
inappropriate placement criteria;

(iv) consult with Indian tribes in establishing (i), (ii),
and (iii).

(e) Significant Federal financial resources be appropriated for
the enhancement or development, and maintenance of mechanisms
to handle child custody issues, including but not limited to In-
dian operated foster care homes and institutions in reservation
areas, such resources be made directly available to the tribe.

Chapter Xine. — Off-Reservation Ixdiaxs

The Commission recommends that:

154. The executive branch of the Federal Government conduct a
detailed examination of assistance programs and need areas that would
be most expeditiouslv administered by tribal governments.

155. The executive branch provide for the delivery of services to
off-reservation Indians consistent with the Federal obligation to all
Indians. Accordingly, Congress recommend that the executive branch
deliver appropriate services when feasible through urban Indian
centers.

156. The executive branch provide financial support for Indian
centers in urban areas. This could be expedited by turning over BIA
Employment Assistance Offices and other Federal contracting oppor-
tunities to urban service centers ; and delegating Federal domestic as-
sistance dollars directly to urban centers on a fair per capita share
basis.

157. The executive branch consider the placement of Federal funds
targeted for urban Indians under an Urban Indian Office as a part
of their considerations for the Consolidated Independent Indian
Agency.

158. The Federal agency fimdinor such urban center or centers de-
termine the actual representation of such center or centers according
to a process of membership certified to the agency.

159. The executive branch mandate that urban centers receive :
Specific consideration for the receipt of Johnson-O'Malley

funds ;

Technical assistance and orientation in programing, budgeting,
regulations, and funding programs ;

Specific roles in program and policy formulation in curriculum
development for teaching and administrative staff hiring for
schools with Indian children.

Funding for administrative and program costs.

160. The executive branch mandate that urban Indian centers be
supported to provide : *

A real estate clearinghouse to provide information on available
living quarters ;

Consumer education programs in the areas of credit procedures,
lease information, and general advice on moving from the reserva-
tion to an urban area ;
Grants for initial moving costs, immediate support, rent supple-
ments, housing improvements ; and

The Bureau of Indian Affairs reestablish the program formerly
funded providing equity grants for downpayments to urban In-
dians who have lived in the city for more than 2 years.

161. The executive branch mandate that appropriate action be taken
to provide urban Indians with health care facilities by providing the
urban Indian center with funds to :

Administer Indian health care programs ;
Provide information for health care ;
Contract for Indian health care ;
Establish health educational programs ;
Establish health care programs on its premises ; and
Act as a monitor for funds designated for urban Indian health
care.

Chapter Ten. — Terminated Indians

The Commission recommends that :

162. Congress by joint resolution specifically repudiate H. Con. Ees.
108 and the policies of assimilation and termination that it represents,
and commit Federal-Indian policy specifically to Indian self-determi-
nation.

163. Congress provide appropriate legislation for an administrative
restoration process adhering to the following principles : ^

{a) Purpose of the Act : To establish standards and procedures
by which terminated Indian tribes may be restored to the status
of sovereign, federally recognized Indian tribes; to restore to
terminated Indian tribes and tribal members those Federal rights,
privileges, and services to which federally recognized Indian
tribes and their members are entitled.

* These funds are presently provided to the Bureau of Indian Affairs for the same nurno'?P
6 See, AIPRC. report of the Task Force on Terminated and Non-federallv Reco-nlzed
Indians, at 1705 for the proposed "Restoration Act" adhering to these principles. "

(5) The policy of termination was wrong and Congress ex-
pressly recognizes that fact. All reasonable steps be taken to fully
and quickly" restore Federal recognition to terminated tribes, re-
establish their land base, and restore tribal sovereignty. All Fed-
eral moneys expended pursuant to the Act should be over and
above existing appropriations for Indian affairs.

(c) Any terminated tribe may file a "petition for restoration"
with the Secretary of the Interior. The Secretary shall grant the
petition where : (i) the tribe is maintaining a tribal identity ; and
(2) restoration is favored by a majority of the tribal members
actually voting in an election. The Secretary shall liberally con-
strue the petition in favor of the tribe and any denials of petition
shall be without prejudice to the tribe's right to refile subsequent
petitions. If a petition is gi'anted, the Secretary and the tribe shall
negotiate a restoration plan, the tribe will be eligible for all Fed-
eral services and benefits, and all rights of the tribe under Federal
treaty, statute, executive order, agreement, or otherwise shall be
reinstated.

((/) The restoration plan provide for election of an interim
tribal council, adoption of a tribal constitution and bylaws, re-
vision of the tribal roll, establishment of reservation land in trust,
and other specifics. Congress retains the power to approve or dis-
approve any restoration plan.

(e) Nothing in the Act alters preexisting rights or obligations
or afTects the status of any federally recognized tribe.

(/) The Act be construed in favor of Indians ; the Secretary of
Interior shall cooperate with tribes seeking restoration ,- his action
is subject to review by a Federal court; and other specifics.

(g) Authorization for whatever appropriations are necessary
to implement the Act.

(h) The Secretary of Interior is authorized to adopt regula-
tions necessary for cari-ying out the Act.

(i) Congress, as an interim measure, recognizing the hardships
caused by terminations, by legislation specifically extend appro-
priate Federal-Indian services to terminated Indians.

Chapter Eleven. — Unrecognized Indians

The Commission recommends that:

164. Procedures be established so that all tribes will be guaranteed
their unique relationships with the United States. After adoption of
the following recommendations, the words "nonfederally recoenized"
and federally "unrecognized" shall no longer be applied to Indian
people.

165. To clarify the intention of Congress and to dispel administra-
tive hesitations, Congress adopt, in a concurrent resolution, a state-
ment of policy affirming its intention to recognize all Indian tribes as
eligible for the benefits and protections of general Indian legislation
and Indian policy: and directing the executive branch to serve all
Indian tribes.

166. To insure that the above declaration is carried out, Congress,
by legislation, create a special office, for a specific period of operation,

such as 10 years, independent from the present Bureau of Indian Af-
fairs, entrusted with the responsibility of affirming tribes' relation-
ships with the Federal Government and empowered to direct Federal-
Indian programs to these tribal communities. The office should have a
dual function: (1) Affirming the Federal relationship with the peti-
tioning tribes; and (2) negotiating the particular aspects of that rela-
tionship within the context of general Indian legislation and Indian
law, but with the flexibility to meet each tribe's specific needs.
The first function to include the following procedures :

The office contact all known so-called unrecognized tribes and
inform them of their rights to establish a formal relationship with
the Federal Government.

Technical assistance be provided for tribes, ensuring that they
understand the office's procedures, and tliat they acquire legal as-
sistance and professional assistance when they desire it for pre-
senting their claims to this office. With the assistance of the spe-
cial office, or with the assistance of persons designated by the tribe
hut paid by the office, the tribes may submit petitions for recogni-
tion to the office.

As soon as possible, but no later than 1 year after receipt of a
tribe's petition, the office must decide on a group's eligibility as a
tribe for Federal-Indian programs and services.

That decision must be decided on the definitional factors enu-
merated below, factors which are intended to identify any group
which has its roots in the general historical circumstances all ab-
original peoples on this continent have shared.

At the end of 1 year, through appropriate hearings and investi-
gation, the office must justify any rejection of a group's claim to
tribal status with a written report documenting the group's fail-
ure to establish its inclusion in any one of seven enumerated defini-
tional factors.

The group may appeal the office's ruling to a three- judge Fed-
eral district court, as outlined in recommendation 169.
The second function of the office, to negotiate the tribe's particular
status within the Federal-tribal system, is intended to place these
newly recognized tribes on a firm footing so that their claims are clear,
their rights are affirmed, their special needs are assessed, and so that ac-
tions may be taken immediately to improve their health, educational,
and economic conditions.

This procedure will acknowledge these tribes' different priorities,
and will assist in expediting actions on tribal priorities. It is not in-
tended to be a process for limiting tribes' eligibility for any services
or constraining the powers, rights, and special privileges of these
tribes. The office will be directed to exercise good faith and trust in
delineating the tribes' rights to services and protection of laws govern-
ing Indian affairs.

167. Congress direct this special office that for the purposes of ful-
filling the Federal Government's obligation for the protection and
well-being of American Indian tribes and aboriginal groups and their
resources, and for the identification of those groups, the procedure
outlined in recommendations 168-171 will be followed.

168. A tribe or group or community claiming to be Indian or aborig-
inal to the United States be recognized unless the United States acting

hroiigh the special office created by Congress, can establish through
learings and investigations that the group does not meet any one of
he following definitional factors :

(a) The group exhibits evidence of historic continuance as an
Indian tribal group from the time of European contact or from
a time predating European contact. '"Historic continuance" in-
cludes any subsequent fragmentation or division of a specific tribe
or group, and any confederation or amalgamation of specific
tribes, bands, or groups and subdivisions.

(b) The Indian group has had treaty relations with the United
States, individual States, or preexisting colonial and/or territorial
governments. '"Treaty relations'' include any formal relationship
based on a government's acknowledgment of the Indian group's
separate or distinct status.

(c) The group has been denominated an Indian tribe or des-
ignated as "Indian" by an Act of Congress or executive order of
State governments which provided for, or otherwise affected or
identified the governmental structure, jurisdiction, or property of
the tribal groups in a special or unique relationship to the State
government.

(d) The Indian group has held collectiA'e rights in tribal lands
or funds, whether or not it was expressly designated a tribe.
"Lands" includes lands reserved for the group's exclusive use,
occupancy, or related general purposes which have been acquired
by the group through Act of Congress, Executive or administra-
tive action, or through such related acts by preexisting colonial

and/or territorial governments, or by State governments or
through the purchase of such lands by the group. "Funds" in-
cludes money designated for the group's exclusive use, possession
or related general purposes by Act of Congress, Executive or ad-
ministrative action, or by such related acts of preexisting colonial
and/or territorial governments, or by State governments, or by
judgment awards of the U.S. Court of Claims, U.S. Indian Claims
Commission, Federal or State courts.

(e) The o^roup has been treated as Indian by other Indian tribes
or groups. Such treatment can be evidenced by relationships estab-
lished for purposes connected with crafts, sports, political affairs,
social affairs, economic relations, or any intertribal activity.

(f) The Indian group has exercised political authority over its
members through a tribal council or other such governmental
structure which the Indian group has determined and defined as
its own form of government.

(g) The group has been officially desio-nated as an Indian tribe,
group, or community by the Federal Government or by a State
government, county (or parish) government, township, or local
municipality.

169. If the United States finds that the claimants do not meet any of
these definitional factors, such a determination must be made in writing
to the claimants and the decision shall be reviewable by a three-judge
Federal district court with the burden remaining upon the United
States to establish that the claimants are not an Indian tribal
communitv.

170. If the United States affirms through the special office that a
claimant tribe or group meets any one of the standards set forth above,
it shall promptly begin negotiations with the tribe or group for pur-
poses of extending all benefits and protections of the laws of the United
States directed toward Indians to the extent agreed to by the tribe or
group. The agencies designated to provide for the negotiation of pro-
tection and benefits shall submit to the Congress such additional
requests for appropriations as are necessary to fulfill these obligations.

ITI. Technical assistance be provided by the special office, or by the
prime agent of the trust, or by both, so that newly recognized tribes
can determine their membership rolls. The process of determining the
rolls will entail public notices, the formation of tribal enrollment com-
mittees to hear individuals' claims, and written statements of enroll-
ment verification which must be recorded in duplicate by the prime
agent of the trust. Tribes must set their own membership standards.
This enrollment procedure may begin after the special office informs
the group of its recognized tribal status, and may continue after the
special office is terminated, although the process should be expedited by
the office as fast as possible.

172. Congress appropriate specific set-aside moneys for American
Indian connnunity governments and organizations currently not re-
ceiving Bureau of Indian Affairs services and programs, to be utilized
for program development, planning, and community-based operations.
These funds to be an addition to the usual appropriations for the Office
of Native American Programs (ONAP) within the Department of
Health, Education, and Welfare. Such funds to serve as an interim
measure while other Federal departments and agencies are implement-
ing services to all Indians. (It should be noted that there should be a
specific set-aside since less than 11 percent of the ONAP grantees
during fiscal year 1975 were terminated or ''nonfederally recognized"
Indian tribes and organizations. )

173. To insure the success of such congressional directive and specific
set-aside moneys, the Congress appropriate additional funds for dis-
tribution through the Federal departments and agencies on a grantee
and nongrantee basis, specifically designed to provide contractual
training and technical assistance for American Indian communities
at statewide and regional levels. Further, to provide for the continu-
ance of the self-determination without termination concepts surround-
ing the Indian Self-Determination Act passed in the 93d Congress,
individual American Indian connnunity governments and organiza-
tions and combinations thei-eof witliin a State or regional area are to
be encouraged to perform the contractual negotiations with individual
contractors, in a cooperative effort with the respective Federal agency.
Additionally, to provide the necessary support for the development of
non-BIA programs and services, and for the cooperative efforts be-
tween Federal agencies and Indian communities in policymaking and
policy formation, the Congress stipulate and encourage the utilizlition
and formation of the Indian task force concept on the Federal re-
gional coimcil level. (As such, the presence of an Indian task force at
the New England Federal Regional Council has proven over the past
few^years to be highly effective in the areas mentioned above.)

174. For the purposes of providing effective utilization and improve-
ment of human resources within American Indian communities and

for the successful continuance and rational development of community
governments and organizations not currently receiving Bureau of
Indian Affairs programs and services, the Congress establish a na-
tional Indian scholarship and fellowship program specifically de-
signed to promote the educational development and training of the
current Indian leadership within such communities and those young
Indian adults who exhibit future leadership qualities and activities.

175. Congress direct the General Accounting Office to immediately
proceed with full and complete investigations of the grant award
procedures involving: the Office of Indian Education, title IV. parts
A, B, and C; and Office of Native American Programs, Tribe and
Urban ; and the Office of Indian Manpower Programs, sec. 302 of the
Comprehensive Employment and Training Act.

176. The Congress extend the statute of limitations as provided in
28 U.S.C. § 2415(b) so as to provide that actions which accrued on the
date of enactment of such Act in accordance with subsection (g)
thereof may be brought within 25 years after the right of action ac-
crues, so as to provide time for Indian tribes, bands, or groups who
liave not had access to legal services, effective legal research, and effec-
tive historical research to seek redress through actions brought by the
United States on their behalf under the Act.

177. The Census Bureau be directed to implement the recommenda-
tions suggested by Task Force Ten on pages 1703-1704 of its final
report, so that so-called unrecognized Inclians will be identified in the
19S0 census.

Chapter Twelve. — Special Circumstances

The Comwission Tecommeinds that:

178. Congress enact legislation prescribing the order of preforencft
in which applications for benefits under Federal laws and programs
will be received from the several kinds of Alaska Native organizations
qualified as applicants.

179. Congress enact legislation confirming that the Tlingit and
Haida Indians constitute a single tribal entity of which the Central
Council is the general and supreme governing bodv.

180. Congress enact legislation confirming that the authority of the
Secretary of the Interior to reserve easements on lands to be conveyed
to Native corporations under the Settlement Act is strictly limited to
definitely defined easements across such lands and at periodic points
along the courses of navigable waterways that are necessary to dis-
charge international treaty obligations and to provide access to re-
maining public lands. Specificalh^ Congress make clear that the Sec-
retary is without authority to reserve any lineal easements along shore-
lines, any nonspecific floating, or blanket easements, or any easements
to provide others with any rights to enter upon an}' lands (including
water beds) to be conveyed to the Native corporations for any purpose
other than to cross such lands by defined routes to reach remaining
public lands.

181. Congress enact legislation confirming that the Secretary of the
Interior is not required, prior to conveying lands to Natives and Ivu-
tive corporations under the Settlement Act, to prepare impact state-
ments pursuant to the National Environmental Policy Act.

&2-185— 77 i

182. Congress enact legislation requiring the Secretary to convey all
lands and estate and interests in lands that the Natives and the Native
corporations are entitled to receive under the Settlement Act no lator
than December 31. 1978.

183. Congress increase its oversight relative to the carrying out of
the Settlement Act in general, and relative to the conveying of lands
to the Native corporations in particular. Congress require the Secre-
tary to report to it not less frequently than once every 3 months until
it is satisfied that all lands to which the Native corporations are en-
titled under the Act have been conveyed.

184. Congress appropriate funds to provide the advance payments
into the Alaska Native Fund that were authorized by § 407(a) of the
Act of November 16, 1973, 87 Stat. 591, to ameliorate the adverse im-
pact on the Alaska Natives of delay in construction of the Trans-
Alaska Pipeline.

185. Congress take no action in implementing the provisions of
§ 17(d) of the Settlement Act, or otherwise, that would have the effect
of diminishing or impairing the ability of Alaska Natives to make use
of any lands or of the products thereof (including fish and animals),
for subsistence purposes, or that would have the effect of restricting
the uses that Native corporations might make of, or the activities they
might conduct on, any land conveyed to them under the Settlement
Act.

186. Congress enact legislation permanently exempting lands con-
veyed to Native corporations under the Settlement Act from State
and local taxation, so long as they are not developed or leased, and
during periods such lands are not productive of income, whether or
not they were previously developed or leased.

187. Not later than during the 1st session of the 101st Congress or
1989, Congress undertake a comprehensive examination of the condi-
tion of the Alaskan Natives and of the results of the Settlement Act,
with a view, particularly, to determining whether the tax exemptions
and the period of inalienability of stock currently provided by the
Settlement Act should be expanded or extended.

188. Congress conduct hearings to examine the problems that have
arisen in interpreting and effectuating § 7(i) of the Settlement Act and
to determine whether further legislation is desirable.

189. The findings and recommendations applicable to Indians gen-
erally are part of the Federal -Indian policy and are equally applicable
to the Indian tribes and people of Oklahoma without distinction and
that no tribe or community of Indian people should be denied the
benefits or advantages of Federal-Indian law or policy solely because
they are found within the boundaries of the State of Oklahoma.

190. Congress repeal those laws which presently restrict or remove
from the tribes of Oklahoma the full measure of jurisdictional and
governmental powers enjoyed bv other tribes in States unaffected by
P.L. 83-280. To the extent^hat the State of Oklahoma lawfidly exer-
cises jurisdiction over Indians or Indian lands at present that juris-
diction should remain as concuri-ent with the tribal powers, pendino-
the assumption of full jurisdiction by the tribes.

191. For those tribes found lacking an adequate legal base for
present assertion of tribal governmental powers. Congress provide by
appropriate legislation for the reassumption of Federal jurisdiction

and tribal jurisdiction to the exclusion of State jurisdiction adhering
to the following principles :

(a) Keassumption of Federal jurisdiction and tribal jurisdic-
tion to the exclusion of State jurisdiction be to the same extent
as are found on reservations in States not presently exercising
Public Law 83-280 jurisdiction or other jurisdiction pursuant to
special jurisdictional statutes for that State.

(b) The extent and limitations, including any timetables for
partial or total assumption of jurisdiction be at the option of the
tribe wdiich shall prepare a plan for same.

(c) There be direct financial assistance made available to the
tribe or intertribal group which includes a Secretarial designa-
tion necessary to qualify for LEAA discretionary funds. LEAA
Act also be amended and directed to make funds available for
planning and preparation prior to assuming law and order func-
tions.

(d) The plan presented by the tribe or intertribal group re-
flect consultation with State and local governments concerning
transition activities and to reflect cooperation or lack thereof.
State and local governments shall have no veto over the plan.

(e) The plan be presented to the Secretary who shall:

(i) Act within 120 days to approve or disapprove the plan,
and failure to act within that time shall be considered ap-
proval :

(ii) Base disapproval of the plan solely upon the basis of
the inadequacy of the plan giving specific reasons and pro-
viding technical assistance and resources necessary to meet
the inadequacies where possible.

(iii) Within 120 days after the passage of the Act. the
Secretary shall draft standards for determining the ade-
quacy of a tribal plan, which standards shall be sent to the
individual tribes of Oklahoma who shall have not less than
thirty (30) days to prepare comments on the standards pro-
posed by the Secretary. The Secretary shall submit to Coji-
gress within 200 days after passage of the Act the proposed
standards with tribal comments.
(/) Eejection of a tribal plan by the Secretary shall be appeal-
able to a three-judge district court in the District of Columbia,
and the Department of the Interior shall pay all reasonable attor-
neys fees and costs of the tribe or intertribal group as determined
by the Federal court except where such appeal is deemed to be
frivolous.

192. The Bureau of Indian Affairs be directed to review its past
allocations of funds among its service areas to determine whether
Indians in all of its service areas are receiving equivalent services.
In those service areas where significant underfunding and/or dis-
parity in allocation has occurred, immediate "equity adjustments"
should be made.

193. The system of using past budgets as a data base to establish
either floors or ceilings on current or future budgets not be rigidly
enforced. This is particularly true in those areas where past budgets
have failed to properly provide for the needs of its service population.

194. The Indian Health Service review its service delivery to
Indians in California to determine whether its service population in
California is receiving health care equivalent to that of Indians in
otlier areas.

195. Congress require each of these agencies to report on their find-
ings regarding past inequities in fund allocations among their differ-
ent service areas and require each agency to specify the procedure
it will follow in future budget developments to avoid repetition of
this occurrence.

196. Congress reject any legislative solutions which would com-
pletely eliminate claims of tribes based on aboriginal rights in land
and claims to damages.

197. The appropriate committees of the House and Senate to which
aboriginal and claim abolishment bills have been referred refrain
from holding hearings until the White House mediator has had an
opportunity for mediation with all parties concerned. The commit-
tees should be guided by the recommendations of such mediator.

Chapter Thirteex. — General Problems

The Coinnussion recommends that:

198. The National Endowments for the Arts and Humanities, the
Library of Congress, the American Folklore Center, the Smithsonian
Institution, and all Federal agencies which fund Indian cultural activ-
ity be directed by Congress to redesign all regulations and guide-
lines to :

(«) Consider Indian projects along with all other proposals.

(&) Use a revolving membership panel, changed every 2 years,
of Indian and non-Indian scholars to review proposals on Indian-
related projects.

(c) Provide grants to Indian-controlled activities which in-
volve Indian tribal peoples, agencies, scholars, and culture car-
riers as the primary beneficiaries, recipients, and users of the end
product.

{d) Mandate that all projects which relate to Indian cultural
affairs be accompanied by a "cultural impact" statement delineat-
ing the cultural worth to Indian peoples of preserving, enacting,
performing, recording and filming the materials or programs,
including the impact on traditional expressions, cultural institu-
tions, and economies of the peoples involved.

(/) Reject projects which do not thoughtfully accommodate
cultural differences between tribes.

199. The Smithsonian Institution, the National Endowments for
the Arts and Humanities and all agencies which fund traineeships
in cultural programs {i.e., nmseum curator programs) train American
Indians. Priority in funding be given to those agencies which demon-
strate an intent, readiness, ancl capability for training American
Indians to ensure long-term benefits.

200. A clearinghouse for the study of American Indian cultures
be established (modeled after the Educational Resources for Instruc-
tion Clearinghouse) for Indian cultural materials, projects, and
programs.

I 45

201. A review agency for funding Indian cultural programs be es-
tablished. It would be designated to act on behalf of tribes, agencies,
educators, programs, institutions, and individuals needing assistance in
curriculum development, provision for material and hinnan resources
related to cultural programing and proposals for cultural programs,
media efforts, or other educational and cultural materials which use
Indian artifacts and language. Indian scholars and computer retrieval
experts would serve as the base staff for the clearinghouse, which would
1 nve the authority to use Federal services allotted to Federal agen-

s. The clearinghouse would serve as the liaison between Indian in-
:-= itutions and public agencies — pre- and post-collegiate educational in-
stitutions, tribal organizations, urban centers, training programs, ar-
chival and museum resources, and governmental agencies — -to insure
maintenance and support of Indian cultural networks and resources.

202. A feasibility study be done on the creation of an Institute of
American Indian Culture. An analysis should include the possibility of
creating a center of knowledge capable of conferring Ph. D. degrees.

203. Congress, by suitable legislation, require mandatory training in
Indian history, legal status, and cultures, of all government employees
administering any Federal Indian program or State or local Indian
progi'am funded in whole or in part by Federal funds.

204. Congress, by appropriate legislation, appropriate funds to as-
sist school systems in developing educational programs in Indian
affairs. Such funds be made available for :

(a) An evaluation of the history and government curricula uti-
lized by elementary, secondary, and higher education institutions.

(b) The identification of gaps and inaccuracies in such curricula.
(<?) The provision of model curricula Avhich accurately reflect

Indian history, tribal status, and Indian culture. In making this
recommendation, it is not the intent of the Commission that such
program constitute an "official history." Eather, the intent is
merely to encourage scholarly work to fill a recognized void in
current educational programs.

205. Congress refer the entire report of the Commission Task Force
on Consolidation, Revision, and Codification of Federal Indian Law
to the appropriate committee or committees to bring the work to
coinpletion.

Optimally, referral be to appropriate committees of the House and
Senate or to select committees in each House with sufficient time and
funds to complete the task.

The committee (s)' work be conducted through a process of consul-
tation with Indian people.

206. Congress authorize the Library of Congress and, if necessary,
appropriate funds to :

(a) Create a Native American Studies Division in the Library
with a central reference area and a research support staff of Na-
tive American specialists. The contents of such a collection to be
determined by the Library staff, but to consist of at least the basic
reference works most frequently used in Indian affairs research
by both scholars and those active in public affairs.

(h) Compile for publication, a collection of Native American
studies resources consisting of: bibliography of basic reference

tools for research in all aspects of Indian affairs, indexed by sub-
ject matter ; a bibliography of bibliogi-aphies relating to Indian
affairs ; and a directory of research sources for Native American
studies, including but not limited to specialized collections such
as those in the Department of the Interior Library, the National
Indian Law Library in Boulder, Colo., and the Newberry Library
in Chicago, 111. Such a research guide to contain materials located
in the Library of Congress or other depository libraries accessible^
to the public and be made available for sale to the public and up-
dated periodically.

(c) The Selected Dissemination of Information Systenii
(S.D.I.) maintained by the Congressional Research Service of
the Library of Congress expand its coverage of publications con-
taining Native American articles and be made available for salei
to the public.

(d) In response to these recommendations, the Librarian of
Congress be directed to report to the Congress the estimated cost
of these changes and projects and the estimated time for tlieiri
completion. In addition, the Librarian be directed to make a feas-
ibility study to determine the requirements for undertaking a de-
finitive retrospective bibliography of all Native American research
materials, indexed by subject matter.

CHAPTEK ONE

CAPTIVES WITHIN A FREE SOCIETY

FEDERAL POLICY AND THE AMERICAN INDIAN

The view of American history from the Native American side of the frontier
offers a curiously reversed image of the rise and fall of nations. Commonly, his-
torians of the United States describe the period 1607 to 1776 as the "colonial
period." For most Indian tribes this same stretch of years represents a period
of relative independence and equality between red nations and white colo-
nies. . . . America's "rise to world power" entailed the reduction of the Native
Americans to the status of a captive population, euphemistically termed "wards."

(47)

CONTENTS

Page

The formative years — Policy development through 1871 51

The idea of assimilation 52

The court as defender of sovereignty 54

Western expansion 55

The dissolution of tribal territory 56

Encroachment upon tribal sovereignty 58

The end of treatymaking 59

The subversion of tribal values 60

The strategy of assimilation — PoUcy development: 1821-1920 61

Early reform eflForts 62

Education as a tool of policy 63

Assimilation by coercion 64

Land allotment — Disaster in the making 66

Search for salvation 67

The right to choose — A poUcy for the future 69

Stirrings of conscience 70

Tribal reorganization 71

A reversing tide 73

Social service findings 74

Ignoring the evidence 76

Studies in futility 77

Indians become involved 78

New programs — New goals 78

Indian studies programs SO-

Congressional acknowledgement 81

Indian readiness 81

(49)

CHAPTER ONE

CAPTIVES WITHIN A FREE SOCIETY

FEDERAL POLICY AND THE AMERICAN INDIAN

[Ati historical review commissioned by the American Indian Policy Review
Commission, and prepared under the direction of D"Arcy McNickle, Sc. D.,
Center for the History of the American Indian, Tlie Newberry Library, Chi-
cago, with contributions from Mary E. Young. Ph. D., Professor of American
History. The University of Rochester, Rochester, New York (Part I, the
Formative Years: Policy Development Through 1871), and W. Roger BuflEalo-
head. Ph. D., Assistant Professor, American Indian Studies and History,
University of Minnesota, Minneapolis, Minnesota (Part II, The Strategy of
Assimilation: Policy Development, 1871-1020).]

The Formativt3 Years — Policy De\'elopmext Through 1871*

The view of American history from the Native American side of the
frontier offers a curiously reversed image of the rise and fall of na-
tions. Commonly, historians of the United States describe the period
1607 to 1776 as the "colonial period." For most Indian tribes, this
same stretch of years represents a period of relative independence and
equality between red nations and white colonies. The "winnino- of in-
dependence'' in 1783 transferred power to white Americans organized
as a ncAv nation and reduced the independence of the Indian nations.
For nearly all the tribes, the period 1848-1871, marked by the in-
auguration of the reservation system and concluding with the aboli-
tion of the treaty system, represents for the tribes the beginning of a
long "colonial period." America's "rise to world power" entailed the
reduction of the Native Americans to the status of a captive popula-
tion, euphemistically termed "wards."

During the seventeenth and eighteenth centuries. European powers
followed the practice of treating Indian tribes as sovereign political
communities, or nations. Formal treaty negotiations established
boundaries and trade relationships. This policy of treating the vari-
ous bands and tribes as nations reflected the Indians' military and dip-
lomatic strength, as well as the competition among European
sovereigns — and even among the various British colonies — for the na-
tives' allegiance, trade, and military support.

The practice of treatymaking often reflected gross ignorance of na-
tive political organizations and the extent to which chiefs enjoyed
centralized coercive political power and moreover, the negotiating
process itself often encouraged factional rivalries among local Indian
leaders. Nonetheless, the challenge of maintaining profitable relations
with European powers also encouraged attempts on the part of tribal
leaders to develop more centralized authority.

'Prepared by Professor Mary E. Young, University of Rochester.

(51)

Thono-h colonial governments attached great importance to acquir-
ing land, tlie international trade in hides and fiirs dictated most
economic relationships between Europeans and Indians in the seven-
teenth and eighteenth centuries. The tribes acconnnodated their hunt-
ing practices and patterns of residence and warfare to the demands of
the fur trade, and soon found themselves dependent upon European
tools and fabrics. While many coastal tribes became fragmented, ac-
cepted reservation status, or virtually disappeared before advance of
settlement, the larger Indian nations of the Great Lakes and Appa-
lachian regions retained their political independence.

Immediately following the War for Independence, United States
negotiators tried to impose the status of conquered nations on tlie
several tribes who had allied with the British. According to the "con-
quest theory" the native had forfeited all legitimate claims in their
tribal territories within the areas surrendered by the British. How-
ever, tribes north of the Ohio did enough damage to the United States
army in the 1780's and earlj^ iTOO's to convince the President and
Secretary of War that the "conquest" doctrine was unworkable. Con-
sequently, Secretary of War Henry Knox proposed to treat the tribes
as foreign nations, to secure their consent to such land cession as they
might be willing to grant, and to make them good neighbors by
"civilizing" them. Knox proposed to equip the natives with hoes,
ploughs, and spinning wheels, and send the agents who might con-
vince them to adopt laws modeled after white man's laws, private
property, schools, and the Bible.

THE IDEA OF ASSIMILATIOlSr

After the Louisiana Purchase (1803) President Thomas Jefferson
elaborated on Knox's formula. Jefferson realized that the Indians'^
shift from subsistence hunting to gathering furs and skins for an
apparently insatiable market was graduall}^ exhausting the supply of
game in much of the area east of the Mississippi. The President en-
couraged United States "factories" engaged in the Indian trade to
extend credit and to suggest that the tribes settle their mounting debts
by selling land. Even after 1822, when the Government got out of the
fur business, this method of settling debts subsidized a generation of
private trading companies, wdiose obligations were routinely written
into the provisions of various treaties. Jefferson and his successors
believed that selling their hunting lands would give the Indian enough
money to develop what remained, and that the loss of hunting terri-
tory would provide incentive to take up intensive agriculture and in-
troduce the idea of treating improved farm land as private property.
Those who could not make the grade as civilized farmers could then
move into territory west of the Mississippi.

Statesmen of the new American republic thought their system of
managing Indian affairs superior to that of tlie British, for Americans
took their civilizing mission seriously. Washington, Jefferson, and their
successors frequently congratulated themselves on the benevolence of
their policies and intentions. Thus, even as they acknowledged a degree
of political autonomy in the tribes, their conviction of the natives'cul-
tural inferiority led them to interfere in their social, religious, and
economic practices. Federal agents to tlie tribes not only negotiated

treaties and tendered payments ; they pressured husbands to take up
the plow and wives to learn to spin. The more conscientious agents
oti'ered gratuitous lectures on the virtues of monogamy, industry, and
temperance. Beginning in 1819, Congress regularly appropriated
$10,000 a year to support Christian missionary teachers of various de-
nominations who sought to remake Indian culture on the Anglo-
American model. Not until the 1890's did anyone seek to disestablish
this unconstitutional alliance between religious societies and the state.

In political terms, Jefferson's program of "civilization" reflected
not only the demands of an expanding white population, but the cap-
ture of the United States Government by men more deeply coiic^xned
with acquiring agricultural land than with the export of furs.^ffer-
son and his immediate successors hoped that some combination of the
progress of "civilization" among the Indians, the shortage of fur-bear-
ing animals in the East, and judicious bribery of tribal leaders would
gradually and peaceably assure the United States' acquisition of In-
dian lands and the assimilation or removal of the natives.

This gradual process failed. The bribery of tribal chiefs fostered
militant factional resistance among the Ohio Eiver tribes, who allied
with the British during the War of 1812. Simultaneously, the Creek
Nation, of Georgia and Alabama, carried on its own war against the
whites of the southeast. These tribes who followed much of Jefferson's
prescription for acculturation, responded to pressures for land cessions
by centi'alizing the control of their national governments in the hands
of sophisticated leaders dedicated to maintaining the territorial and
administrative integrity of their nations.

The Cherokees, noted for their "progress" in farming, literacy,
journalism, constitutionmaking and Christianity, proved adamantly
insistent on maintaining their territory in Georgia, North Carolina,
Alabama, and Tennessee. When the Federal Government, under An-
drew Jackson's direction, and the State government of Georgia pres-
sured them outrageously, the Cherokees proved sophisticated enough
to take their case to the Supreme Court.

Today, Andrew Jackson is best known as the "Hero of New Or-
leans," in honor of a battle he won against the British after the con-
clusion of a treaty of peace. At the Battle of Horseshoe Bend, Jackson
not only defeated the Creek Nation, but paved the way for the cession
of millions of acres of cotton land from the southeastern tribes to the
United States.

When Jackson attained the Presidency in 1828, he had received his
strongest support in the States Avith large Indian populations. He
: served his constituents with a two-pronged attack on tribes that would
not voluntarily sell their land and move west. He encouraged Georgia,
Alabama, and Mississippi to extend their jurisdictions over the Chero-
kee, Creek, Chickasaw, and Choctaw Tribes within their borders. The
States subjected individual Indians to State laws and, in some cases,
denied them the right to testify in court or to vote. Such laws encour-
aged intrusion on Indian lands, the abuse of persons, and the theft of
property, Jackson also persuaded Congress in 1830 to pass the Indian
Eemoval Act,^ appropriating half a million dollars to enable the Pres-
ident to negotiate with tribes east of the Mississippi for removal. The

14 U.S. Stat. 411-413.

funds permitted officials of the War Department to bribe tribal leaders i
and buy out individual Indians' farms and improvements, such as i;
stores or ferries. These actions undermined the unity of tribal govern-
ments that resisted removal. In defense of his policies, Jackson in-
sisted that the civilization program had affected only a small minority
of mixed-blood Indians who enjoyed undeserved prosperity and tribal
authority; that to continue to treat the "miserable remnants" of East-
ern tribes as sovereign nations and their corrupt leaders as heads of
sovereign states was unrealistic to the point of absurdity.

Jackson and his supporters were correct in their perception that the
tribes — whether a few hundred ''remnant'' Peorias or several thousand
"remnant" Cherokees — could no longer protect their sovereignty
through military actions. United States laws and treaties theoreti-
cally afforded them the protection they needed. Treaties defined and
guaranteed borders between Indian nations and the surrounding
States, and the Intercourse Act of 1892 - prohibited intrusion on In-
dian land. Federal courts pursuant to treaty agreements were exercis-
ing jurisdiction over crimes committed by whites in the Indian coun-
try. Yet none of these legal remedies proved effective. Insofar as the
tribes had accepted qualifications upon their sovereignty — such as ex-
traterritorial court jurisdiction — for tlie sake of receiving United
States protection, they relied upon remedies of small practical use.

THE COURT AS DEFENDER OF SOVEREIGNTY

The Cherokees, believing that both the extension of State laws and
the President's refusal to use his powers under the Intercourse Acts
to expel intruders from their midst, violated United States treaty
obligations, took two cases to the Supreme Court. In the first, Cherokee
Nation v. Georgia ^ the Court held that the Cherokees could not sue
on their own behalf as a foreign nation because they were not a foreign
nation. In a second, Worcester v. Georgia^^ a majority of the Court
upheld the Cherokee reading of the constitution. Chief Justice John
Marshall argued that while Indian tribes within United States borders
could no longer be classed as truly independent foreign nations, they
had proved capable in law and fact of self-government within the
borders guaranteed them by treaty ; and that they should be acknowl-
edged as "domestic dependent nations" with full powers over their
internal policy, subject to no State's jurisdiction. Unfortunately for
the Indian nations, Andrew Jackson refused to acknowledge the
validity of Marshall's contentions or to employ the army to protect
tribal territories. Georgia courts refused to register the writ of the
Supreme Court in the Worcester case. The State extended its juris-
diction to the point of granting Cherokee lands to white citizens of
Georgia, and Jackson's agents promoted both State interference and
tribal factions.

In December, 1835, a United States Commissioner signed a removal
treaty witli 79 Cherokees ^ who had no legal standing as tribal repre-
sentatives under the written constitution the tribe had adopted in 1827.

2 2 U.S. Stat. 141-142.

3 5 Peters, 1-89 ; 1831.
< G Peters 515-597.

6 Kappler, 1904 ; pp. 439-449.

The Senate confirmed the treaty. By such tactics, Jackson and his im-
mediate successors secured the removal of nearly all the large inde-
pendent tribal groups east of the Mississippi.

The removal treaties provided for the exchange of lands, often on
an acre-f or-acre basis, wherein the tribes traded their holdings within
eastern States and organized territories for grants in the area of pres-
ent-day Oklahoma, Kansas, Nebraska, and Wisconsin. At the time,
the exchange placed the Indian nations outside the boundaries of orga-
nized States and territories and thus, theoretically, enhanced the likeli-
hood that they might enjoy self-government. Jackson and his Secre-
taries of War frequently tried to persuade tribal leaders that only
removal would preserve the existence of their nations. Yet the removal
process itself undermined the social and political structure of the
tribes. Many chiefs who signed removal treaties so discredited them-
selves that they had to sever their relations with their tribes and did
not themselves remove. For example. Greenwood Laflore of the Choc-
taw Nation became a Mississippi planter and served in that State's
legislature; the majority of the Choctaw Tribe migrated to Oklahoma
without their former chief. Hundreds of Choctaw villagers remained
in eastern Mississippi, but as effectively stateless persons. The United
States did not recognize the Mississippi Choctaws as a tribe until 1918.

Both the bitter factionalism engendered by conflicts over the sign-
ing of removal treaties and the ultimate helplessness of all the tribal
leaders who tried to retain their homelands tended to erode the legiti-
macy of public authority within the tribes. Emigration took a grim
toll of life and health among the involuntary Indian emigres. Tribal
populations became dispersed geograpliically between eastern frag-
ments and western "nations." All these processes undermined the unity
and stability of the tribal nations.

Some advocates of removal believed that a western Indian territory,
governed by a federation of tribes, might be established on a perma-
nent basis with representation in Congress. Once the tribes had been
removed, most United States officials lost interest in this project,
while the diversity of tribal cultures and the value the tribes attributed
to their special claims under treaties undermined Indian support for
the proposed federation. Though proposals for organizing "Indian
territory" continued to surface from time to time, the tribal nations
remained separate and unequal.

WESTERN EXPANSION

Few persons of Andrew Jackson's generation foresaw the dramatic
acceleration in the pace of settlement and territoi-ial exploitation
that would ensue from tlie cominaf of the railroad. Within the oenera-
tion following Jackson's death (1845), the eastern tribes which pre-
sumably had removed to permanent homes in Kansas and Nebraska
were divested of their newly acquired lands to accommodate settle-
ment along the lines of the transcontinental railroads and their
branches. The Mexican cession (1848) brought the southwestern
tribes clearly within the Ignited States jurisdiction. The discovery of
gold in 1848 drew thousands of migrants along trails passing through
Indian country and directly into territory occupied by the Indians of
California. Protection of the Oregon and California trails, the vari-

ous railroad surveys, and scores of burgeoning mining communities
required that the tribes be brought under United States control. The
western tribes had little experience with treaty negotiation and com-
paratively slight contact with Anglo-Americans. Most tribesmen
showed minimal interest in accommodating their own cultural pat-
terns to pretend that the Dakota or the Comanche might be "civilized"
before ceding their hunting grounds. Two decades of warfare reduced
their defensive strength and forced them onto reservations whose
resources could not sustain their traditional mode of life.

While United States agents recognized as de facto the authority of
tribal leadership, reservation populations were treated as wards of
the Government rather than as citizens of a separate sovereignty. The
United States continued to negotiate treaties with the tribes until
1871, but in the 1850's and 1860"s, the treaty process became a device
for eroding the independence of tribal governments and for legitimiz-
ing interference both by Congress and by the executive in the day-to-
day management of tribal society.

When the Department of the Interior took form in 1849, Congress
officially shifted control of Indian affairs from the War Department to
the new "Home" Department. The transfer reflected congressional
hopes, as Senator Jefferson Davis expressed them, that "war being the
exception, peace the ordinary condition, the policy should be for the
latter, not the former condition." '^ More certainly, the reorganization
placed Indian affairs firmly in the realm of domestic business and, as
Davis put it, indicated Congress' intention that dealings with Indians
should "assume a character consonant with the relations of guardian
and ward." ^

The shift signaled no diminution of Indian warfare — more nearly
the reverse. The army continued active both in fighting and in man-
aging Indians ; veteran Civil War officers I'eturned to their vocations
as Indian fighters and Indian agents. President Grant's Peace Policy,
inaugurated in 1869, supplanted military agents with men nominated
by the various religious denominations. Grant accompanied this gen-
teel reform with the appointment of a Board of Indian Commissioners.
The commissioners, mainly businessmen of humanitarian propensities
and an established interest in educational and other reforms relating
to children, undertook to review Indian policies and to supervise con-
tract compliance on the part of those who supplied rations, clothing,
and other goods to the reservations. Tlie Grant reforms reflected the
Government's inclination to regard Indian populations as dependent
wards of a hopefully benevolent American sovereign.

THE DISSOLUTION OF TRIBAL TERRITORY

Jefferson's dream of assimilation — of transforming tribal peoples
into independent, literate, land-owning farm families — continued to
influence policy in the 1850's and 1860's. The various Commissioners
of Indian Affairs reiterated their conviction that private property
in land offered the key to civilization. Each head of an Indian family
or single person over 21 should receive a plot of land ; the remaining
tribal property should be sold to support education and agricultural

*30 Cong.. 2d sess., Congressional Globe, app., p. 678.
7 Ibid., p. 678.

improvement — in other words, to discharge the Government's financial
obligations to the tribe at tribal expense. This self -financing method
of obtaining Indian title had been applied in various ways to the Creek,
Choctaw, and Chickasaw Tribes of the Southeast on the occasion of
their removal in the 1830's. It produced an orgy of speculation in
Indian land claims, but few Indian homesteaders. Commissioner
George W. Manypenny nonetheless supplied the same remedy in the
1850's to tribes in Kansas and Nebraska whose domains lay in the
path of proposed transcontinental railroads. In addition, treaties of
the 1850's and 1860's with tribes of the eastern plains, Minnesota, and
the Northwest provided for prospective allotment of land at the Presi-
dent's discretion. The model for such treaties, often cited in subse-
quent agreements, was the Omaha Treaty of 1854, which provided
that the President might "from time to time at his discretion" have
all or part of the territoiy reserved to the Omahas surveyed and
allotted, in quantities of from 80 to 640 acres, proportioned to family
size, and award the allotments to those who would locate on them as
a permanent home. Although the allottee would receive restricted
patents, the treaty provisions foresaw the likelihood that States might
revise the restrictions with the consent of Congress.^

The notion that Indians who received individual allotments should
eventually become citizens of the States where they lived — and the
concomitant assumption that tiibes should cease to exercise jurisdic-
tion over them — was embodied in general allotment agreements as
early as the Choctaw Treaty of Dancing Rabbit Creek in 1830.^
Beginning with a Georgia law of 1828, several of the southeastern
States extended jurisdiction over "their" Indians, and granted them
more or less restricted rights of citizenship. Such laws were aimed
principally at removing the Indians, and they proved relatively suc-
cessful, despite the fact that the Supreme Court decision in Worcester
V. Georgia invalidated the State's attempt at assuming jurisdiction.

In the wake of the resumption of general allotment treaties in the
1850's, the Court spoke again on the questions of jurisdiction and
citizenship, reaffirming Marshall's position. Several Kansas counties
attempted to tax lands allotted under various treaties to the Shawnee,
Wea, and Miami. Upholding the Indians contention that allotments
were not taxable, the Court argued that regardless of particular treaty
restrictions on the allotee's right to convey land or encumber its title,
all Indian lands, including allotments, were exempt from State juris-
diction. The Court held that the Federal Government's intention in
removing the tribes was to place them beyond State jurisdiction and
that the law organizing Kansas Territory and admitting Kansas to
statehood explicitly commanded that Indian rights remain unimpaired.
Further, the Court maintained that so long as tribal organizations
persisted, the regulation of Indian property lay with the tribes and the
Federal Government, precluding State jurisdiction. Indians might live
among a largely white population, follow most of the customs of their
white neighbors, sue in State courts and vote in elections without losing
the status of tribal citizens. "If the tribal organization of the Shawnees
is preserved intact, and recognized by the political department of the

8 Kappler, 1904 : pp. 612-613.
» Kappler, 1904 : pp. 310-318.

92-185—77 5

government as existing, then they are 'a people distinct from others*
capable of making treaties, separated from the jurisdiction of Kansas,
and to be governed exclusively by the government of the union." ^°

The Court pointed out that the Shawnee had their own elective
government and their own laws and customs ; only another treaty or
voluntary abandonment of tribal organization might change their
status. Clearly, the Court did not regard the possession of tribal land
ui common as an essential feature of tribal organization.

In the contemporary case involving the Wea, the Court identified the
intent of the allotment treaties as hostile to tribal organization, but
insisted that allotment as such did not terminate the tribe. "The basis
of the treaty, doubtless was, that the separation of estates and interests
would so weaken the tribal organization as to affect its voluntary aban-
donment and, as a natural result, the incorporation of the Indians with
the great body of the people.

"But this result, desirable as it may be, has not yet been accomplished
with the Wea Tribe, and, therefore, their lands cannot be taxed." "

Nonetheless, a generation in advance of congressional legislation
providing for allotment of Indian lands at the discretion of the Execu-
tive, treaties negotiated with theoretically sovereign tribes granted the
President the effective right to dissolve tribal territories.

ENCROACHHrENT UPON" TRIBAL SOVEREIGNTY

Other treaties of the period granted far-reaching discretion in the
President and Congress to govern the tribes and to regulate the lives
of individual Indians. The fifth article of the 1855 Agreement with
the Ottawas and Chippewas provided for the dissolution of their tribal
organization, except for purposes of effecting the provisions of the
treaty.^2 The Sac and Fox Treaty of 1859 asserted, "in order to render
unnecessary any further treaty engagements ... it is hereby agreed"
that the President with the assent of Congress would have full power
to modify any previous treaty "to whatever extent he may judge to
be necessary and expedient for their welfare and best interests." ^^
The Cheyenne and Arapaho Treaty of 1867 granted Congress power
to legislate "on all subjects connected with the government of said
Indians on said reservations, and internal policies thereof, as may be
thought proper." ^^

Meanwhile, the Yankton Sioux Treaty of 1858 permitted the Presi-
dent to discontinue annuity payments to any Indians who "fail to
make reasonable and satisfactory efforts to advance and improve their
condition," and delegated to the Secretary of the Interior authority to
impose the same penalty on families who refused to send children to
school.^^

The threat to withhold annuities revealed a basic tribal weakness.
From the I790's, treaties generally specified that the United States
would compensate the tribes for land cessions in yearly installments.
Not only did individual tribal members sometimes come to depend on

" The Kansas Indians, 5 Wallace, p. 756.

'1 Yellow Beaver v. Commissioners oj Miami County, 5 Wallace p. 758.

12 Kappler. 1904 : p. 729.

13 Ibid., p. 798.
" Ibid., p. 986.

»s Ibid., pp. 777-778.

their share of such payments for cash income, the tribal governments
themselves usually subsisted on annuity income rather than impose
taxes. Federal officials could routinely pay or withhold annuities for
purposes of influencing tribal decisions. Conflicts over the use of
funds owned or paid by the United States became a source of tribal
factionalism.

THE END OF TREATTMAKING

The House of Representatives, in a rider to the appropriation bill
of 1871, secured the Senate's concurrence to abolishing the treaty sys-
tem. Supporters of the rider took the position that the treatymakiiig
powers of the President and Senate could not bind the House to appro-
priate money. Debate on this proposition broadened into a general
discussion of the policy of making treaties with Indian tribes. These
debates are of interest because they reveal how far the lawmakers had
removed themselves from the conciliatory impulses of Knox, Wash-
ington, and Jefferson.

Representative Aaron A. Sargent of California ridiculed the "so-
called" treaties with the 38 men, women and children who constituted
the "great nation of Umpquas," and the 238 Rogue Rivers, whose
"chiefs" had to be appointed by the Commissioners in order that the
tribe have representatives who could sign a treaty. Declaimed Sar-
gent: "We pay tribute to these Indians not to make war upon us, not
to murder our citizens * * *. Yet they are simply the wards of the
Government, to whom we furnish the means of existence, and not inde-
pendent nations with whom we are to treat as our equals * * *. Has
not the comedy of 'treaties,' 'potentates,' 'nations,' been played long
enough?" ^^

In the Senate, William Stewart of Nevada supported his fellow
westerner's admonitions: "I regard all these Indian treaties as a
sham." ^^ Stewart also repudiated appropriations for the tribes, and
supported a measure to allot all the tribal lands in what is now Okla-
homa. Stewart's ideas and even liis language echoed the Jacksonian
rhetoric of the removal period. He regarded Indian chiefs as corrupt
aristocrats and allotment as the key to civilization. 'Wlien every Indian
becomes a homesteader, he argued, "you can break up this aristocracy,
break up these swindling treaties, and let these Indians have their
present annuites on the proceeds of these lands." ^^ In other words
reminiscent of Jackson's first message on Indian removal, Stewart
intoned : "The idea of thirty oi- forty thousand men ownin^: in common
what will furnish homes for five or ten millions of American citizens,
cannot be tolerated.'* ^^

Stewart's opponents argued that abolishing the treaty system would
prove "the first step in a great scheme of spoliation in which the In-
dians will be plundered" of their land.^° They held that Congress could
not amend the Constitution imilaterally by limiting the treatymaking
power of the Executive. IVTearly all the 'friends' of the Indian con-
curred, however, in representing most of the tribes as diminishing in
significant number.^^ They merelj^ affirmed that the United States had

i«4i Cone. 3fl sess., Congressional Globe, p. 743.
"Ibid., p. 1112.

"Ibid., p. 1578.
" Thid., p. 1758.

20 Ibid. p. 1S25.

21 Ibid., p. 1822.

an historically established obligation to grant protection to the vanish-
ing Americans.

In the end, Congress did not repudiate the treaties then pending
ratification. Instead, a conference committee of both Houses agreed to
ftn amendment to the appropriation bill which affirmed: "that here-
after no Indian nation or tribe within the territory of the United
States shall be acknowledged or recognized as an independent nation,
tribe, or power with whom the United States may contract by
treaty." ^^ Thus ended the treaty system. Henceforth, instruments
negotiated between the Executive and tribal representatives would be
known as "Executive Agreements." In the immediate situation, the
abolition of the treaty system reflected the reluctance of the House to
appropriate money for projects agreed upon in treaties ratified exclu-
sively by the Senate. In the context of contemporary trends in Indian
policy, the abolition of the treaty system reflected the increasing sup-
pression of the sovereign political status of the tribes, and signalized
an era in which the United States was to deal with Indian groups uni-
laterally, by legislation, and with Indian persons not as citizens of
their own nations but as wards of the United States Government.

THE SUBVERSION OF TRIBAL VALUES

The development of United States policy toward the tribes in the
first century of independence reflected two variables : changing mar-
ket conditions that rendered direct control of Indian land and min-
eral resources more profitable than trade in the goods Indians might
extract or produce; and the changing balance of military power as
the United States gained in numbers and wealth while the tribesmen
lost their erstwhile French, English, and Spanish allies. The reduc-
tion of the status of the tribes from independent sovereigns to do-
mestic dependent nations, and finally to wards of the government, re-
flects these basic changes.

The official ideology of Federal-Indian policy reflected humani-
tarian aims. Almost universally, those in charge of Indian affairs
assumed that Anglo-American civilization represented a higher level
of cultural and moral development and a more viable economic sys-
tem than tribal cultures might encompass. Federal agents therefore
regard their "civilizing" mission as a humane one.

Through treaty provisions and independent appropriations, the
United States supported schools, supplied iron, hoes, ploughs, spinning
wheels, and instructions in an eii'ort to help Indians become inde-
pendent, literate farmers or spinners, and practitioners of monogamy,
Christianity, and pecuniary accumulation. Federal officials conceived
this noble effort as complementaiy to the aim' of transferring the
major part of tribal resources to United States citizens. Industrious
farmers need less land than hunters.

As it worked out in practice, the "civilization" policy wholly dis-
regarded the values and the strengths of Indian cultures. Furthermore,
the measures undertaken to civilize Indians either served the overall
objective of depriving them of their land, or, where the goals of the
policy did not fit the objective, the goals were subordinated. The

22 Ibid., p. 1821.

clearest instance of such subordination can be found in the storj^ of
the Cherokees. In the 1820's, that tribe established a peaceful, thriv-
ing, self-sustaining community whose governing elite actively pro-
moted constitutionalism, commercial farming, education, and Chris-
tianity. Tlie United States virtually denied the abundant evidence of
Cherokee success, deliberately assaulted the administrative integrity
of the Cherokee government, and fostered enduring tribal factions —
all in a successful effort to secure a treaty of cession for tribal lands
in Appalachia.

Few tribes in the nineteenth century went as far as the Cherokees in
trying to accommodate to the Government's notion of civilization.
But nearly all received their education for civilization in the context
of an overall plan of action that deprived them of their most valuable
resources, displaced them from their homes, attacked and subverted
their chosen leaders, and denigrated their religious and ceremonial
life, family relations, dress, language, and sexual division of labor.

By replacing land with cash payments for land forever lost, by
making tribal governments dependent on uncertain and frequently
inadequate congressional appropriations, by attacking traditional au-
thorities and subverting native leaders who were not compliant. Fed-
eral agents deprived the tribes of the economic, cultural, and political
resources for building or sustaining viable independent communities.
The agents, moreover, complained that their Indian wards had flunked
the civilization test and failed to become decorously self-supporting
citizens. The Government then proceeded to elaborate a policy for
dealing with Indians as dependent paupers.

The Strategy of Assimilation — Policy Development: 1821-1920*

When Congress in 1871 discontinued treatymaking with Indian
tribes. United States Indian policy was determined unilaterally. This
breach in the historic relationship permitted Congress to legislate
rather than negotiate in Indian matters, often not even to consult,
no matter what effect the legislation might have on the rights and
lives of Indian people. For Indian tribes, only the judicial process
remained as a defense or curb on the plenary powers of Congress.
In the years ahead, the success or failure of policies legislated by
Congress would depend upon the ability of the bureaucratic structure
to manipulate Indian communities into compliance.

From its formal organization in 1824, the Indian Service has been
vested with considerable powers and gained a reputation for ineffi-
ciency and corruption. Its personnel more often than not were ignorant
of the people they were supposed to assist and protect. Congress might
determine policy, but its results were brought to fruition by the
Indian Service. Only to the extent that Congress kept a close watch
and demanded accountability was it able to insure that its purposes
would be carried out at the agency or community level. Unfortunately
for Conofress and Indians alike, Indian Service employees were not
always both honest and able.

Although top pay for Indian agency positions in the 1870's was
only $1,500 per annum, there was never any shortage of aspiring

"Prepared by Professor Roger Buffalohead, University of Minnesota.

agents. Perhaps, the attraction lay in the commonly held belief that
a few years in the Indian field opened vistas of opportunity for anyone
with an acquisitive spirit. At any rate, the means used to defraud
Indians and the Federal Government ranged from outright theft to
shabby ventures just within the letter of the law. One clever agent
in the Southwest developed mining enterprises, using tribal funds, and
succeeded in recruiting an Indian Office inspector and the son of the
Commissioner of Indian Affairs in his promising but illegal business
venture. Another stocked the ranches of his friends with cattle issued
for tribal use.^^

Honest mismanagement occurred as frequently, with just as damag-
ing results. Indian farms were established where drought and grass-
hopper invasions were seasonal. SaAvmills were built on reservations
where the only timber was cottonwood and willow. Agency buildings
and homes were often constructed out of green timber and promptly
warped into unusable structures. Bakeries were set up at agencies,
even though the patrons did not use or buy the products. HP

Such blundering and outright theft occasioned calls in the Congress
for reform in the administration of Indian Affairs, but prior to the
Civil War, interest in justice for the Indian was limited to a few
souls along the eastern seaboard. Typical of the attitude of most
westerners was the comment of an lowan that Indians "are as worth-
less as so many tamed wolves."

EARLY REFORM EFFORTS

In the immediate post-Civil War years, the American public was
in no mood to launch new crusades. But the frightful reports of
bloody incidents like the massacre of Indians at Sand Creek in Colo-
rado, and the misery and suffering of tribes shuttled from location
to location, stirred public opinion and kept the so-called Indian
problem before the Nation.

A few days before the Nation celebrated its centemiial in Philadel-
phia General Custer and his troops died at the Little Bighorn. Public
reaction was instant but not unanimous in calls for revenge, suggest-
ing that the American conscience was awakening, if slowly, to the
moral question posed by the Nation's treatment of native people.

Certain eastern seaboard cities soon emerged as the center of agita-
tion for the rights of Indians, even if local eastern tribes went ignored.
In the early 1880's, Helen Hunt Jackson, a Bostonian, published her
famous book, "A Century of Dishonor," which recited the wrongs in-
flicted upon Indian tribes. This book was follow^ed by her novel,
"Kamona," based on the story of California Indians caught up in the
atrocities consequent upon the discovery of gold.

Damned by her critics for lack of balance in reciting the history of
Indian-white relations, Helen Hunt Jackson nevertheless called Amer-
ican morality into question. She publicized the Indian cause as it
had never been publicized before and through the power of her writ-
ing enlisted numerous Americans in the movement to reform Indian
affairs.

=^ Has:an. William T., 1961, "American Indians," Chicago : The University of Chicago
Press, p. 126.

A fundamental tenet of the reform philosophy of the period was be-
lief that as long as Indians remained Indians the injustices of the past
and present would continue. For their own and the Nation's best inter-
est, it was argued, Indians had to be made over, willingly or if neces-
sary by force, into Christian farmers and homemakers. Indian policy
should be aimed at removing the barriers to a civilization and putting
Indian people on an equal footing with their white neighbors. Then
and only then would Indians as individuals assimilate into American
life and, with the Nation's moral obligation met, the Federal Govern-
ment could dispense with protection of Indian land and life.

EDUCATION AS A TOOL OF POLICY

Even before Congress responded with specific legislation to imple-
ment the goals of the reformers, the education of Indian children had
shifted from a voluntary to a forced acculturation basis. In part this
shift occurred as a result of the extreme dependence in which the
Plains tribes found themselves once their hunting and gathering eco-
nomy was destroyed. Cut off from their primary source of subsistence,
the great buffalo herds, the Government either had to feed the people
or let them starve. Having adopted the principle that it was easier to
feed than fight the western tribes, the Government soon began to use
this leverage to force the Plains tribes towards subsistence farming.
Slowly, the dictatorial powers of the agents were broadened into other
areas of reservation life, reinforced by the creation of Indian police
forces and Indian courts. Refusal to send children to school became one
of the many punishable offenses which brought the agent or his rep-
resentative to Indian doorsteps.

Prior to the Civil War, the education of Indian children was limited
to half-hearted attempts to fulfill treaty obligations. Most of the
funds appropriated for education went into so-called model farms,
mills, and salaries for sundry agency employees. A few Christian
groups subcontracted these moneys and helped some tribes, like the
Cherokee and Creek, to establish model school systems.

In most tribal communities, however, little progress in formal edu-
cation had been made since the first appropriation of funds was au-
thorized in 1819. The average agency school was usually staffed bv the
agent's wife and only accidentally with anyone competent in the field.
This condition prevailed imtil the 1870's, when education emerged as
a siofnificant feature of Indian policy.-*

In those early years, most Indian children attended schools in their
liome communities. Persuasion was used to encourage attendance and
the course of study varied little from that available in non-Indian
frontier communities. In 1879, however, a school was founded which
attracted national attention and greatly influenced the direction of
Indian education for many years. The school was Carlisle Indian
Training School in Pennsylvania and its founder was Richard H.
Pratt, captain in the United States Army.

The novelty of Carlisle lay in the educational philosonhy of its
founder. Pratt's ideas about educating Indians were simple enough.
Older Indians, he argued, were beyond salvation. But the young, if

2* Hagan, op. clt, p. 134.

separated from the influence of home and tribe, forced to give up their
native tongue and culture, immersed in the habits and beliefs of white
Americans, and taught useful trades and skills, could become func-
tioning, self-reliant adults like other Americans. Carlisle became the
model for Indian education and in succeeding years schools on and
off the reservation adopted Pratt's philosophy.

In the early and harshest years, the boarding schools took Indian
children from their parents, and through educational and work ex-
periences marked by heavy discipline, tried to detribalize Indian
youngsters while preparing them for a future away from the Indian
community.

The effects of boarding school experience upon the Indian students
ranged from frustration to psychological destruction. Even when the
harsher feature of the system underwent modification in later years,
more youngsters emerged from the experience as psychological casual-
ties of American good intentions than as functioning, self-reliant
adults, as was intended bj^ the educational policies.

Intervention into the parent-child relationship further undermined
Indian family life, already weakened by the transition from older life-
style to reservation existence. In time, Indian communities came to
view education with great suspicion and hostility — seeing it as a threat
to the Indian community.

Perhaps most unfortunate of all, tribal groups which had previously
accepted formal education and made great strides in providing aca-
demic training for their young people, saw their efforts thwarted by
the educational bureaucracy established by the Federal Government.
The Cherokee and other tribes, whose locally run and controlled school
systems produced astute leaders and a highly literate population, were
forced to turn their schools and children over to Federal control.

At the time, of course, Indian educators did not see their efforts in
the light provided by later historical perspective. They fell in with the
prevailing wisdom of the times, which was to eradicate Indian cul-
tural influences and to prepare their young people to live like white
Americans. Inner turmoil, confusion, frustration, and other mani-
festations of psychological stress were only indications that the young-
sters were making progress in casting off their "savage" backgrounds
and habits of mind.

ASSIMILATION BY COERCION

In education, as well as in other aspects of Indian life, reformers
and policymakers envisioned a "savagery" that was regarded as the
greatest barrier to Indian assimilation or civilization. AVith the enemy
in clear focus, policies soon arose to change Indian landholding pat-
terns and undermine and suppress Indian political and cultural
institutions.

In earlier times, when a frontier separated white settlement and
Indian country, tribal autonomy was possible and the internal affairs
of the tribes were handled by custom and tradition. But the concept
of Indian country, where tribal authority and law prevailed, was des-
tined, like the frontier, to fall victim to the growth and development
of the Nation.

In 1885, as a result of the much publicized Ex Parte Crow Dog
decision of the U.S. Supreme Court upholding tribal law. Congress

passed the Major Crimes Act, extending Federal criminal jurisdic-
tion to Indian country for the crimes listed in the legislation. In later
years, through amendments to the original legislation and other
statutes, tribal sovereignty was further curtailed. Eventually, the Fed-
eral Government extended its jurisdiction in civil matters as well and
promoted legislation bypassing tribal authority altogether.

The Indian system of common land ownership had never been
understood or accepted by the American people. Europe and western
civilization had grown to greatness on a system of private property in
land, and most Americans reasoned it must, therefore, be a proper
system for any people.

' At various times from the earliest days of settlement, the idea of
individualizing Indian landholding was suggested and even incorpo-
rated into some treaties. Thomas McKenney, the first Commissioner
of Indian Affairs, in requesting funds from Congress to support
Indian schools, proposed that as Indian youth "are qualified to enter
upon a course of civilized life, sections of land be given them." ^^
After the Civil War, western settlement gathered enormotis momen-
tum. Favorable land laws, immigrants from abroad, and the construc-
tion of roads and railways westward resulted in demands to reduce
Indian landholdings and to move tribes out of the way of western
settlement.

By the 1880's, westerners and eastern reformers both agreed that too
much land had been set aside for Indian use. Indians were not making
proper use of the lands they owned and were keeping decent, hard-
working folk from making farms and ranches. Eastern reformers con-
vinced themselves that Indian salvation lay in private property and
its "civilizing effect". The more Indian people knew about white
culture, they pointed out. the less they wotild need in the way of re-
sources and governmental protection. Eager to profit from Indian
lands, railroad developers and land speculators lent their support to
any proposals to reduce the size of Indian reservations.

All these pressures, in their individual and combined effect, resulted
in Congress exploring ways to reduce Indian landholdings while
forcing Indians to develop their lands and become a part of Ameri-
can society. The device by which this would be accomplished v/as an
act of Congress in 1887, called the General Allotment Act or the Dawes
Act. after the name of its major sponsor in Congress, Senator Henry
Dawes of ]Massachusetts.

The Dawes Act was neither proposed nor justified as a legal means
of separating Indians from their land. Eather, the Act was rational-
ized, oftentimes with great passion, as responsible government policy,
designed to give Indians the protection and assistance long denied
them in American society. Advocacy for the legislation came from
leading public figures, from religious and civil bodies, and from Indian
welfare organizations chartered to promote and protect Indian rights.
Less vocal, though no less active in promoting the legislation, were
railroad, mining and industrial interests.

2oMcNickle, D'Arcy 1973, "Native American Tribalism," rev. ed. New York- Oxfnrrl
University Press, p. 80. ' '-'-^'"'"

The Act had its opponents as well. Senator Teller of Coloradof
responded to the mtroduction of an earlier version of the Act as "a bill
to despoil Indians of their land and to make them vagabonds on the
face of the Earth." But supporters of the idea eventually prevailed and
the Act was signed into law by President Cleveland in June of 1887.-^

To those who called themselves friends of the Indian, the Dawes
Act seemed to provide a formula for what they had long been urging
as a solution to the Indian problem — a means to turn Indians away
from their past while easing their acceptance into American society.
But, as time would prove, they underestimated both the lancl-greed of
their fellow countrymen and the hold that traditional beliefs and
practices had on Native Americans.

LAND ALLOTMENT — DISASTER IN THE MAKING

The essential features of the Dawes Act were : (1) the President was
authorized to divide tribal lands and assign or allot 160 acres to each
family head, 80 acres to single persons over 18 and orphans, and 40
acres to each other single person under 18. (2) Each Indian was sup-
posed to choose his own allotment, but if he refused or failed to do so,
a Government agent would make the selection. (3) Title to the land
was to be held in Federal trust for 25 years or longer, at the President's
discretion. (4) At the end of the trust period, U.S. citizenship would
be conferred upon all allottees and upon other Indians who separated
themselves from their tribe and took up "the habits of civilized life."
(5) Surplus land remaining after allotment might be sold to the
United States.

That the allotment policy was a mistake was apparent shortly after
its authorization. The effect of the legislation was almost exactly what
its critics anticipated — it became an efficient device for separating
Indians from their land and pauperiznig them. Reservation after
reservation was surveyed and allotted, even where insufficient rainfall
made farming a precarious enterprise at best. So-called surplus lands,
often at the behest and sometimes as a result of the coercion of Indian
Service officials, was sold without tribal consent to the Federal Govern-
ment and opened to white settlement. Funds from the sale of these
lands were held in the U.S. Treasury and used by the Government to
purchase farm and ranch equipment and supplies, provide education
and welfare and sundry other purposes which, in many cases, were to
have been provided under treaties still in effect between the tribes and
the United States.

Wlien Indians particularly in the Plains States resisted the effort to
convert them into farmers on their allotted acres. Congress amended
the Dawes Act to permit the leasing of lands not being farmed or
grazed. Enterprising white farmers and ranchers took advantage of
the allottees who might not be aware of the worth of their lands and
negotiated leases at ridiculously low prices. This action prompted an-
other layer of bureaucratic control to regulate and oversee Indian land
leasing procedures.

The Burke Act of 1906 further amended the Dawes Act to permit th&
Secretary of Interior to bypass the trust period restrictions and issue

2« Ibid., p. 81.

"certificates of competency" to Indians declared by him to be "com-
petent". As soon as the amendment became law, anxious creditors and
land buyers were on hand to help allottees make out applications and
prepare the necessary affidavits, showing competency in land matters
and evidence of habits of civilized life. x\nd when the certificates were
issued, the same creditors and land-buyers were on hand to purchase
the land from the Indian owners.

In this way and throuoh other devices in the law, the best of
Indian land passed into white ownership. First to be lost were agri-
cultural and grasslands, virgin timber acreage, and land with iDotential
water and mineral resources. As William T. Hagan has observed:
"Severalty ma}^ not have civilized the Indian, but it definitely cor-
rupted most the white men Avho had any contact with it." '^^

In 1887, Indian tribes collectively owned about 140 million acres
of land. The Dawes Act as amended in succeeding years set up the
mechanisms whereby some 90 million acres passed into white owner-
ship before the policy was abandoned some 45 years later.

SEARCH FOR SALVATION

Unfortunately for Indians, loss of land was not the only burden
they faced. Accompanying the severalty legislation were assimilation
policies designed to destroy tribal life and culture. Indian religions,
ceremonies, and other cultural actvities were outlawed and suppressed.
In time, Federal intervention touched eveiy aspect of Indian life,
from forcing Indians to abide by non-Indian marriage customs to
tribal visiting practices and even the age of those who could participate
in tribal dances.

Little wonder that when word began to spread about an Indian
messiah, called Wovoka, and about a religion promising salvation from
the white man, many Indians were eager to learn more. From dele-
gations sent to the homelands of the prophet in Nevada and by word
of mouth, the message came that in the near future a great cataclysm
would destroy white America, the buffalo and other animals would
return to the land, and Indians who practiced the new religion, the
Ghost Dance, would be free to return to ways of their ancestors.

The Plains tribes, especially the Teton-Dakota, quickly converted
Wovoka's message into a Ghost Dance religion of their own. The
spread of the dance, especially among the more traditional mem-
bers of the tribe, or the "recent hostiles" as Indian agents preferred
to call them, alarmed "Washington as well as neighboring white
communities.

If Indian officials had taken the time to find out more about the
Ghost Dance religion, one of the most tragic events in the histor-y of
Indian-white relations might have been avoided. The religion itself
posed no serious threat to white settlers and, eventually, "like other
faiths based on prophecies of doom, would have lost convxnts or
modified its doctrines.

Out of fear and by resorting to military intervention, Indian Serv-
ice personnel precipitated a series of events which led to the tragic
massacre of Indian men, women, and children at Wounded Knee,

" Hagan, op. cit., p. 134.

South Dakota in December 1890. Congress later awarded Congres-
sional Medals of Honor to 22 of the soldiers who took part in the
massacre, but public reaction then, as well as much later, expressed
greater shame than pride.

Charles Alexander Eastman, the Sioux doctor and author, was the
resident physician at the Pine Ridge Agency when the Wounded
Knee Massacre took place. Military and Indian Service officials kept
him from the massacre site for several days and Avhen he was able to
go, the sight of frozen, grotesque bodies greeted him. "While he gave
medical aid to the survivors, mostly babies protected by their mothers'
bodies from gunfire, a detail of troops dug a huge trench, gathered
the frozen bodies, and dumped them into a mass grave.

Eastman left the Indian Service shortly thereafter. The efforts he
had made to adjust medical practices to the cultural traditions of the
Pine Ridge people died with his departure. Although the Indian
Service desperately needed men of Eastman's caliber to improve health
conditions at Pine Ridge and other reservations in the country, little
effort was made to keep him in the Indian Service.

In every part of Indian country, tuberculosis remained the greatest
killer of Indians, with infant deaths from dysentery following a close
second. Trachoma affected most of the reservation populations in the
Southwest, and diabetes was emerging as an affliction of peculiarly
high incidence among Indian populations.

In appropriating funds for Indian Affairs, Congress considered
Indian health care a low priority. Not Indian health, but Indian
progress in civilization most concerned Indian policymakers.

Indian opposition to the assimilation policies never disappeared
coniDletely. But every time Indians found an answer to the policies,
the bureaucracy found a way around it. The Cherokee and other so-
called Civilized Tribes in Indian Territory, now Oklahoma, resisted
the allotment policy in vain, and then under the provisions of the law
tried to reserve their surplus lands for the use of future generations.
Congress, at the insistence of the Bureau, passed the Curtiss Act which
dissolved the governments of the Five Civilized Tribes and proceeded
to negotiate with compliant tribal members for the sale of the surplus
lands.^^

By the close of the 19th Century, Indian economic and psychological
resources were both badly eroded. On most reservations, Indian leader-
?;hip was a thing of the past with older leaders either dead, imprisoned,
or in sullen retreat from tribal affairs. Although traditions and lan-
guages were being quietly passed on to future generations away from
the watchful eves of agents and missionaries, Indian cultural tradi-
tions were on the decline. Older familial and clan practices had been
greatly disrupted and no longer held sway among some groups. An
economy based upon land rental fees, seasonal labor, and occasional
handouts from_ the Government and private charities came to charac-
terize reservation life.

Tribal groups especially in the Southwest who had managed to
escape allotment fared as badly as allotted tribes. Their reservations
happened to be located in areas which even white Americnns spurned.
Some of these reservations proved later to be valuable for their mineral

s^Sp'cer. Edward H.. 19fifl, A Short History of the Indians of the United States, New
York : D. Van Nostrand Reinhold Co., p. 76.

and other natural resources, but the absence of development funds
rendered the resources useless and the people experienced starvation
conditions and chronic malnutrition. A few of these reservations were
so isolated that the Indian Service provided only minimum supervi-
sion, in the expectation that in time the inhabitants would die off
anyway in accordance with the popular myth of the Vanishing
Americans.

Although the period from 1900 to World War I is Imown as the
Progressive Era in American history, little of the concern of Ameri-
can proirressives about the quality and direction of American life
spilled over into Indian affairs. The problems of urban and industrial
life absorbed the attention of the Nation and the only time most
Americans thought about Indians at all was when they appeared in
the wild west show or as in the case of Jim Thorpe, emerged as an
Olympic champion.

For most older and recent Americans. Indians were understood as a
vanishing people who wore feathers and beads and lived in teepees
and gallantly but foolishly resisted the march of western civilization
and progress.

But whatever white Americans thought about Indians, the Indian
Office remained enthusiastic about the future. As former Com.mi?;-
sioner of Indian Affairs Francis E. Leupp reflected on the Indian
situation in 1919, he observed: "The Indian problem has not reached
a slasre where its solution is almost wholly a matter of administra-
tion." ^^ Manv vears would pass before anyone, save Indians, would
believe that Indians could be better off as members of tribal societies
than as prototype of white Americans.

The Right To Choose— A Policy for the Future*

By the 1920"'= it should have becomp apparent that for most of the
precedinsr one hundred years the Nation had proceeded from false
as^nmpt'ons in adminis^-erinj? Indian Affnirs.

Thp critical assumptions were : f 1) the Native Am.erican racial stock
lacked biological vigor and would succumb to invading diseases and
abusive use of alcohol : and (2) the Indian wav of life could not com-
pete with the more afforressive. more "rational." wavs of the dominant
society and mnst yield to it. In either case, the Indians would cease to
exi^t as a political or cultural component in the developing nation.
Policv based on such assuniT^tions in the beginning generated no con-
cern for the well-being of the oriofinal inhabitants, bnt was directed
to speeding up the process of dissolution. A kind of death-bed watch
resulted.

As a consequence of this neo-ativism. the Indian population declined,
seeming to bear out the p]-ophesy of biological deficiency. By the close
of last centurv. three-fourths of the natives inhabiting the area com-
prising the United States in pre-Columbian times had disappeared.
Some tribes were totally gone. Other tribes, like the Mandans of the
upper Missouri and the Jicarilla Apaches of northern New Mexico,
seemed headed for extinction. Health conditions were wretched, with

^ Hajran. op. cit. p. 147.

* Prepared by D'Arcy McNickle, Center for the History of the American Indian Th«
^ewDerry Library, Chicago.

70 1

killer diseases like tuberculosis decimating the generations. Life ex-
pectancy ratios were shockingly low.

A professional field nurse engaged by the American Ked Cross to
investigate health conditions on Indian reservations in 1921 reported
that on seven reservations, all in the Southwest, the Indian birth rate
was "26 per cent higher and (the) average death rate 163 per cent
higher than that for the United States" in the same registration area.^"

Programs of education were poorly funded and were staffed by
poorly trained and poorly motivated teachers and administrators. The
inefficiency of these early schools worked to the Indian advantage, al-
though that was not intended. The educational philosophy was de-
signed to destroy the Indian community, and, if the schools had been
more effective in achieving that goal, Indian life might have deterio-
rated more rapidly.

The greatest threat to Indian survival resulted from the land policy
imposed by the General Allotment Act of 1887, which in the years
following its enactment reduced Indian land holdings in total disre-
gard of future Indian needs.^^ The damage was not confined to a
shrinking land base, however ; Indian social organization, belief sys-
tems, and moral vigor were all related to land, to a universe defined
by myth and ritual.

In'brief summary: The preceding 100 years had wrought incalcu-
lable damage to Indians, their property, and their societies. Tribes had
been moved about like livestock until, in some cases, the original home-
land was no more than a legend in the minds of old men and women.
Children had been removed from the family, by force at times, and
kept in close custody until they lost their mother tongue and all knowl-
edge of who they were, while parents often did not Imow where the
children had been taken or whether they even lived. Tribal religious
practices, when they were not proscribed outright, were treated as
obscenities. Land losses, as noted, were catastrophic, while the failure
of Government to provide economic tools and training for proper
land use left the remaining holdings untenable or leased to white
farmers at starvation rates. The bureaucratic structure had penetrated
the entire fabric of Indian life, usurping the tribal decisionmaking
function, demeaning local leadership, obtruding into the family — and
yet was totally oblivious of its inadequacies and its inliumanity.

STIRRINGS OF CONSCIENCE

The failures of the Federal Government as trustee had become so
notorious by the 1920's as to compel public action. The Pueblo Lands
Board Act of 1924 ^^ and the Osage Guardianship Act of 1925 ^^ gave
notice of a new mood in Congress. Both Acts came about in response
to public outcry against intolerable exploitation of Indian resources.
This was followed by a more general demand for reform, which in
1926 led President Coolidge's Secretary of the Interior, Hubert Work,
to request the privately endowed Institute for Government Research
(later the Brookings Institution) to investigate the conditions of

*• Senate Committee on Indian Affairs, hearings, 1929, Survey of Conditions of tlie
Indians in the United States, pt. 3, p. 935.
SI See pt. 2, p. 11, supra.
33 43 Stat. 630.
33 43 Stat. 1008.

Indian life. The investigation resulted in the report of Lewis Meriam
and Associates, entitled "The Problem of Indian Administration,"
published in 1928.

For the first time in the long history of Indian affairs administra-
tion, the performance of the Government was brought under scrutiny
by a body of competent, professional students of public affairs. The
fiiidings of that survey are widely known and only these highlights are
mentioned here :

The income of the typical Indian family was low * * * Only 2 iter cent of
the Indians had incomes of over $500 a year. Partly as a result of this poverty
the health of the Indians in comparison with the rest of the population was bad.
The death rate and infant mortality were high. Tuberculosis and trachoma were
extremely prevalent. Living and housing conditions were appalling; diet was
poor ; sanitary provisions were generally lacking. The system of public health
administration and relief work was inadequate. The educational system had no
well considered broad educational policy. A uniform curriculum was being ap-
plied throughout the Indian school system, although the different tribes were
at quite different stages of development. Indian children were being fed at reser-
vation schools on an average expenditure of 11 cents a day per child, and were
being forced to do heavy domestic work actually to ease the financial burden but
ostensibly to acquire training in useful industrial arts.**

The Preston-Engle report on Indian irrigation, also commissioned
by Secretary Hubert Work and published in 1928, revealed how in-
adequately the Government had dealt with Indian water rights, a
basic tribal resource. Significantly, the report recommended: "That
the principle promulgated in the Winters decision be invoked and en-
forced with respect to all those reservations where necessary to secure
an adequate water supply for Indian lands." ^^

The report also recommended that where use rights had been estab-
lished adverse to Indian water rights, the Government should "pro-
vide an adequate water supply for the Indians in question, either by
purchase of valid rights, or the construction of storage reservoirs * * *
such purchase of rights or storage reservoir construction to be paid
for out of gratuity appropriations." The purpose of such a recom-
mendation was to give effect to the Winters decision of 1908, in which
the Supreme Court upheld tlie riglit of a tribe to make maximum
beneficial use of the waters needed to irrigate reservation lands.

The failure to act fully on these recommendations after almost 50
years hns left Indian water rights still in jeopardy and has increased
greatly the cost of effecting an equitable adjustment.

The 70th Congress (1927-29) set up its own investigative proce-
dure, adopting Senate Eesolution 79 which authorized a special sub-
committee to conduct hearings and gather information. In succeeding
years, the Senate accumulated a vast archive of material dealing with
Indian reservations and the relationship between Indians and the Fed-
eral Government.

TRIBAL REORGANIZATION

The growing demand for reform resulted in the adoption of the
Indian Reorganization Act of 1934, the first major legislation in this
field since the enactment of the General Allotment Act. That earlier
legislation was based on the premise that the individualizing of tribal

"■' Library of Congress Legislative Reference Service, 1945, Aspects of Indian Policy,
p. 29.

35 Survey of Conditions, 1930, op. cit., pt. 6, p. 2213.

land would expedite the process of transforming a tribal people into
competitive, taxpaying, free citizens, in repudiation of their own val-
ues and traditions. The Indian Reorganization Act, in contrast, was
designed to restore some measure of the resource base and the self-
governance which tribes had enjoyed prior to 1887.

Of the Allotment law the Meriam report had observed : "It almost
seems as if the government assumed that some magic in individual
ownership of property would in itself prove an educational civilizing
factor, but unfortunately this policy has for the most part operated
in the opposite direction. Individual ownership has in many instances
permitted Indians to sell their allotment and to live for a time on the
unearned income resulting from the sale." ^'^ The report could have
added that by the 1920's more than 100,000 Indians were landless.

Certain essential features of the Indian Reorganization Act were
left on the drawing board as that legislation took its course through
committee hearings. The excised articles were central to the reform de-
sign and their elimination postponed the day when Indians might
assume control over their affairs. Of particular importance were the
following :

(1) The power "To compel the transfer from the community for
inefficiency in Office or other cause, of any employee of the Federal
Indian Service locally assigned." ^^

(2) "The Secretary of the Interior may from time to time delegate
to any Indian community, within the limits of its competence as de-
fined by charter, the authority to perform any act, service, or function
which the United States administers for the Jbenefit of Indians.^^

(3) "The Commissioner is authorized and directed to make suitable
provision for the training of Indian members * * * i^ the various
services now entrusted to the Office of Indian Affairs * * * including
education, public health work and other social services, the administra-
tion of law and order, the management of forests and grazing lands,
the keeping of financial accounts, statistical records, and other public
reports, and the construction and maintenance of buildings, roads, and
other public works.^^

(4) "It is hereby declared to be the purpose and policy of Congress
to promote the study of Indian civilization and preserve and develop
the special cultural contributions and achievements of such civilization,
including Indian arts, crafts, skills, and traditions. The Commissioner
is directed to prepare curricula for Indian schools adapted to the needs
and capacities of Indian students, including courses in Indian history,
Indian arts and crafts, the social and economic problems of the Indian,
and the history and problems of the Indian administration.*°

(5) "There shall be a United States Court of Indian Affairs, which
shall consist of a chief judge and six associate judges * * * appointed
by President, by and with the advice and consent of the Senate."

The court would have original jurisdiction in specified cases, includ-
ing "actions at law or suits in equity wherein the pleadings raise a

3" Moriam Lewis, et al., 1928, The Problem of Indian Administration, Baltimore : The
Johns Hopkins Press, p. 7.

s^U.S. House of Representatives Committee on Indian Affairs, hearings on H.R. 7902.
1934i title I. sec. 4-h.

38 Ibid., title I, sec. 7.

3" Ibid., title I, sec. 1.

*° Ibid., title II, sec. 2.

substantial question concerning the validity or application of any-
federal law, or any regulation or charter authorized by such law,
relating to the affairs or jurisdiction of any Indian tribe or chartered
community."

"The final judgment of the Court of Indian Affairs shall be subject
to review on questions of law in the circuit court of appeals of the
circuit in which such judgment is rendered * * * subject to review by
the Supreme Court." ^^

By eliminating items 1 and 2, the continuance of bureaucratic control
was assured in personnel assignments and resource development.

By denying Indians the special training authorized in item 3, Indian
leadership found itself handicapped in dealing with management prob-
lems ; while the failure to reorient school curricula as directed in item 4
allowed the schools to continue as alien institutions within the Indian
community. Some 30 years would go by before Indian studies programs
began to be offered, first at major univeif-ities across the country, and
then in schools taken over and managed by Indian communities.

By failing to establish a Federal Indian court with appellate proce-
dures, the administration of law and order on Indian reservations con-
tinued to be dominated by the Interior Department and subject to the
Department's budget limitations. Failure of the Department to provide
adequately for public safety induced some tribes to request State juris-
diction over civil and criminal matters. This request from the Indians
of a few States was cited as justification for the adoption of Public
Law 280 in the 83d Congress, authorizing any State to assume jurisdic-
tion over an Indian reservation without consulting the wishes of the
Indians. And because courts of Indian offenses created under the
department's law and order code lacked adequate provision for appeal
and review of trial court decisions, Indians were brought under the
Civil Eights Act of 1968.*^

This action again was a case of some Indians expressing dissatisfac-
tion with a system created by the Federal Government, in response to
which the Congress curtailed further the right of self-government.
Some tribes previously had incorporated bills of rights in their written
constitutions; all tribes could have done so in time, as and when they
felt the need.

A REVERSING TIDE

By the 1930's it had become evident that the Indians would not
vanish; indeed, the surprising fact was that the rate of net increase
for the enumerated Indian population exceeded the growth rate of
, the general population. Between the years 1900 and 1950 the number
of Indians increased by some 70 percent by the end of that period the
rate of increase for the Indian population was 22 per 1,000, compared
with a rate of 15 per 1,000 for the Nation." The Navajo tribe increased
five-fold during the 60-year period 1870-1930.

Survival was not in numbers alone. What came to be realized, re-
luctantly at times, was that Indian custom and tradition, Indian
languages, Indian belief systems, Indian ways of rearing children, the

" Ibid., title IV, sees. 1 and 3(5), and sec. 15 cited.
^2 25 U.S.C, title II.

« Hadley, J. Nixon, 1957, The Demography of the American Indians, Philadelphia : The
Annals, American Academy of Political and Social Science, vol. 311, p. 29.

92-185 — 77 6

Indian style of living in extended families, Indian sharing, all still
prevailed. For the administrator, the educator, and the missionary
worker this adherence to Indian ways seemed perverse and intoler-
able. On occasion it resulted in an intensified effort to obliterate the
Indian past, as when Indian Commissioner Charles Burke, in 1923,
instructed his field officers to require: (1) That Indian dances be
limited to one each month in the dayli<^ht hours, in midweek, and at
only one center in each district (except that durino; planting and har-
vesting no dances were to be allowed) ; (2) that no individuals under
the age of 50 take part as dancers or as spectators and (3) that the
field employees carry on an educational campaign against the dances.**

The Meriam report made passing reference to "native ceremonies,
such as celebrations, dances, games, and races," and found that such
activities "tend to disappear under the general influence of white cul-
ture, or to take on the form of a spectacle and become commercialized,
thus losing much of their original significance in group life." *^

In offering this observation the survey staff reflected the conven-
tional wisdom of the period, which still held to the belief that Indian
identity and tradition could not remain separate and distinct within
the general society. The ultimate fate of the Indian people, according
to this view, was assimilation into American Society.

This view, in fact, went unchallenged through the first half of the
century; it was the basis of law and public policy. Meanwhile, evi-
dence was accumulating that would seriously question these assump-
tions. While Indians in increasing numbers found employment in
urban centers, especially after World War II, a relatively small per-
centage took up permanent residence in the city. A pattern of com-
muting between the reservation and the city began to emerge. Even
highly skilled industrial workers, such as the Indians employed in
"high steel" work on bridges and skyscrapers, remained closely at-
tached to an Indian community. Intertribal and regional organizations
came into existence, and Indians found themselves discussing shared
problems and experience. This was a new development, since with only
a few exceptions tribes had no tradition of forming permanent alli-
ances. Tribal ceremonies, of both ritual and social nature, attracted
growing numbers, and individuals and families traveled to distant
reservations to observe or to participate in local performances. A phe-
nomenon referred to as the "pow-wow circuit" began to flourish. Cere-
monies that had not been performed for many years, were revive<L
The growth of the Native American Church after the 1930 acceler-
ated.*° Tribal groups presumed to have been exterminated in the early
years of settlement in the east and southeast, were rediscovered, often
bearing a cryptic name and claiming Indian heritage, and moreover
their numbers were increasing.*^

SOCIAL SERVICE FINDINGS

Factors such as these were discussed and evaluated at a conference
sponsored by the Wenner-Gren Foundation at the University of Chi-

« McNickle, op. cit., pp. 73-74.
« Meriam, op. cit., p. 629.

*« Aberle, David F., IStefl. Thie Ppyotp Religion Among the Navajo, New Yorlv : Viking
Fund Publications in Anthropology, No. 42, pp. 17-20.

" Berry, Brewton, 1963, Almost White, New York : The Macmillan Co., pp. 1-51.

caffo in the winter of 1954. The conference was chaired by John Pro-
vinse, formerly Assistant Commissioner of Indian Affairs, and the 20
participants were mainly social scientists, who had devoted their pro-
fessional careers to the study of Indian commmiities or to administra-
tive duties related to such communities. The stated purpose of the con-
ference "was not to evaluate administrative policies and practices but
to examine objectively those assumptions of fact or value, expressed or
implied, which are held by the general American public, by Congress,
and by the Executive, and which appear to guide the present handling
of Indian affairs." *^

A number of assumptions then current were examined against the
collective experience of the participating conferees, and all agreed that
the one assumption basic on national policy was the idea that
'"assimilation of the American Indian into the normal stream of
American life is inevitable, that Indian tribes and communities would
disappear." ^^

The discussants found themselves in "complete agreement" that the
assumption and the policy that followed from it were unwarranted.
The}' noted: "Most Indian groups in the United States, after more
than 100 years of Euro-American contact and in spite of strong ex-
ternal pressures * * * have not yet become assimilated in the sense of
loss of community identity and the full acceptance of American habits
of thought and conduct * * *. The urge to retain tribal identity is
strong, and operates powerfully for many Indian groups." ^°

A\niile recognizing that Indian society would continue to change,
making adaptations to social and environmental pressures, also that
some individual Indians would choose to abandon tribal life, the con-
ferees agreed that "despite external pressures, and internal change,
most of the present identifiable Indian groups residing on reservations
(areas long known to them as homelands) will continue indefinitely
as distinct social units, preserving their basic values, personality, and
Indian way of life, while making continual adjustments, often super-
ficial in nature, to the political and economic demands of the larger
society."

To the above observation, the conferees added a cautionary note:
"Forced, or coercive, assimilation is self-defeating in practice, tending
to antagonize and drive underground in the Indian groups those lead-
ers who might otherwise develop constructive and cooj^erative atti-
tudes toward greater acceptance of non-Indian society. * * * Mean-
while, the current practice of telling Indians that their assimilation
is inevitable is probably more deterrent than contributory to adjustive
changes, since it gives rise to feelings of anxiety and resistance that
lead to rejection of new ideas and institutions." ^^

The discussions were not devoted exclusively to assumptions on
M-hich Government policy was based ; assumptions commonly held by
Indians were also reported to the conference. Typical of Indian views
reported were these : "Over the years, the Indian can expect no con-
sistency in policies regarding him. No matter what policy is today,
tomorrow it will be different — even ojDposite."

^5 Provinse, John (ed.) 1954, The American Indian in Transition, American Anthrooolo-
gist. vol. 56, No. 3, p. 387.
^» Ibid., p. 388.
^0 Ibid., p. 388.
°i Ibid., p. 389.

And : "The interests of the dominant society will take precedence
over the interests of Indians in any policy decision ; Indian interests
will be considered only when they coincide with or at least do not con--
tradict 'white' interests." ^^

These sentiments, when they are reviewed 20-odd years later, are-
remarkably contemporary.

IGNORING THE EVIDENCE

This 1954 conference occurred at the very time that the 83d Con-
gress was holding hearings and adopting legislation for the purpose-
of terminating Federal responsibility and compelling Indian tribes-
to accept assimilation as the ultimate resolution of a long historic-
process.

As the evidence for Indian survival accumulated, obviously refut-
ing the 19th century predictions, the Federal establishment found
itself unprepared to meet the challenge. The fact that j)ast policies-
had failed to achieve their stated objectives was taken as a failure
of management, not of basic purpose. When critical voices were raised
denouncing government performance, response took two forms: (1)
studies and investigations were carried out; and (2) followed by new
or amended legislation.

A case in point was the Meriam Survey of 1926-28, initiated in
response to critical attacks during the early 1920's. This survey was
followed by the Indian Reorganization Act and other reform legis-
lation of the 1930's. It is relevant to note that the Meriam report was
entitled ''The Problem of Indian Administration," and that the thrust
of the report was centered on recommended improvements in the
delivery of services to the Indian people. The underlying philosophy
of Indian affairs administration was not questioned. The report specifi-
cally stated : "Since the great majority of the Indians are ultimately
to merge into the general population, [administration] should cover
the transitional period and should endeavor to instruct Indians in
the utilization of the services provided by public and quasi-public
agencies for the people at large in exercising the privileges of citizen-
ship and in making their contribution in service and in taxes for
the maintenance of the government." ^^

The same investigate-legislate pattern was followed at later critical
junctures, again without questioning the motives or the ultimate pur-
pose of Government policy. After World War II, for example, a
growing concern was voiced, in and out of Congress, over the increas-
ing complexity and cost of government. In response to this expressed
anxiety, the Congress in 1917 created the Commission on Organiza-
tion of the Executive Branch of the Government, of which former
President Herbert Hoover was named chairman. The Commis.^ion
appointed a special task force to look into the administration of Indian
affairs, with a Princeton University professor of political science,
George Graham, serving as chairman. Graham had no knowledge of
Indian life and no more than a briefing in Indian history, and the-
recommendations advanced by his task force gave no evidence that
the subject matter had been explored in depth. The task force advo-
cated "progressive measures to integrate the Indians into the rest

152 IMd.. pp. 393-94.

^ Meriam, op. cit., p. 22.

\ 77

lof the population as the best sohition of the 'Indian problem.' In the
■opinion of the Commission this policy should be the keystone of
the organization and of the activities of the Federal Government in

[the field of Indian affairs.*' ^^

I As a device for speeding up the "integration" of Indians in the

' general population, the Commission further proposed that programs
for Indian welfare be "progressively transferred" to State govern-

I ments and that the Bureau itself be buried in the Federal Security
Agency, or its successor.

I Significantly, Dean Acheson, Vice Chairman of the Commission,

I dissented, observing : "Kecollections of the painful history which
surrounds the cases of The Cherokee Nation v. The /State of Georgia ^^
and ^yorce8ter v. Georgia '"^ make a novice in this field pause before
endorsing a recommendation to assimilate the Indian and to turn him,
liis culture, and his means of livelihood over to State control."

Acheson was joined in this dissent by James H. Rowe, Jr., and
James Forrestal, members of the Commission.

STUDIES IlSr FUTILITY

Legislation did not result immediately from these recommendations,
I)ut the work of the Hoover Commission gave impetus to the drive
to reduce Federal responsibility for Indian survival. The Booz, Allen,
and Hamilton report, contracted for by the Department of the Interior
and published in 1950, viewed Indian affairs as comparable to prob-
lems encountered in industrial management. It contributed nothing
to an understanding of cultural adjustment, since, like previous
studies, it concerned itself primarily with ways to extricate the Fed-
eral Government from its treaty and statutory oblio:ations. This report,
issued in four volumes, almost succeeded in avoiding any mention of
Indians, the putative subject matter.^^

Both the Hoover Commission and the Booz, Allen, and Hamilton
reports encouraged the notion that the Government should abandon as
expeditiously as possible its historic role as trustee and advocate for
the Indian people. Thus the termination legislation of the 83d Con-
gress that dominated the Indian scene from the mid-1950's until well
into the next decade, had its ideological base in superficial surveys con-
ducted by unqualified investigators.

A more serious defect was the failure of these surveys to take notice
of the wrongful assumptions upon which policy had been based. Xo-
where in these official reports is any reference made to the evidence
for Indian survival in numbers and in cultural identity. Program
failures resulting in Indian poverty, poor health, wretched housing,
educational deficiencies — all the ills recited 20 years earlier in the
Meriam survey — were attributed to failures of execution. The report
writers seemed unprepared, or unwilling, to recognize that program
failure was symptomatic of a basic misconception of the Government-
Indian relationship. In their preoccupation with cleansing the Gov-

** Graham, George (ed.) 1949 Commission on the Organization of the Execntivp Branch
of the Government — Indian Affairs (Hoover Commission), A Report to the Congress,
TVashincrton, D.C. : U.S. Government Printing Office.

°^ 5 Peters 1.

^ 6 Peters 534.

~- Booz. Allen, and Hamilton, 1930, Management Review and Appraisal : System Organi-
zation and Management Practices, Washington, D.C. : Bureau of Indian Affairs.

ernment of responsibility, they failed to notice that the death watch
policy of an earlier time was no longer acceptable in a national soci-
ety becoming concerned about the civil rights of individuals and
groups.

INDIANS BECOME INVOLVED

The concerted drive during the Eisenhower administration to termi-
nate Federal responsibility alerted Indian leaders throughout the
country of the fact that their property and their civil rights had been
placed in jeopardy by a badly advised bureaucracy. This growing
alarm among Native Americans accounts for the unprecedented dem-
onstrations that erupted in the mid-1960's, culminating in such spec-
tacular forays as the occupation of the Washington headquarters of
the Bureau of Indian Affairs and the takeover of the Wounded Knee
community in South Dakota. The protests, moreover, could not be-
dismissed as transient anger, but marked the beginning of Indian in-
volvement in the process of policy formulation. 'V^riiile the Federal
establishment might be unprepared to deal with the mounting evidence
of Indian survival and continued to promote ideas that prevailed in
the 19th century, a new tribal leadership emerged to challenge those
ideas.

The Federal agencies established in the 1960's to deal with problems
of poverty and community decay encouraged this emerging leader-
ship and assisted Indian reservations in developing their own plan-
ning and action programs. Of particular importance were the changes
in attitude and operating procedures that came with the new agen-
cies. With no hardened regulations dictating action and no traditional
policies to defend, it was possible for them to serve in an advisory
capacity and to give priority to Indian decisionmaking; they had no-
commitment to a strategy of assimilating the Indian people into
white, urban society.

In the course of a survey conducted by the Department of Labor-
to determine the impact on the Indian population of its various man-
power programs, the reporting team commented :

We grew to admire the Indians tremendously as a group, to marvel at tlieir-
courage and dignity even in the midst of abject poverty, and to appreciate their-
lack of aggressive acquisitiveness. Even their reserve appeared to be the symbol
of an inner strength as well as an insulation against the deteriorating influence
of white society * * *. We realized what a tremendous loss to mankind would
be the obliteration of this culture, call the obliteration process what one will —
assimilation, acculturation, or termination. We became strong partisans of the
belief that the Indians should be encouraged and helped to preserve their
culture.^

Such sentiment was a refreshing new note in the long history of
Government-Indian relations and seemed to promise that a better
attitude might come to prevail.

NEW PROGRAMS NEW GOALS

The outstanding innovation of the period was the establishment of
Indian Community Action Programs (ICAP), which brought to

88 U.S. Congress. Joint Economic Committee, 1969. Toward Economic Development for
Native American Communities, vol. 2, p. 389, Washington, D.C. : Government Printing
Office.

reservation communities technical services and financial assistance for
which tribes in the past had always been dependent on the Bureau of
Indian Affairs. The OfRce of Economic Opportunity which adminis-
tered the new program invited tribal officials to prepare and submit
plans for local projects. Once a plan was approved, OEO contracted
with the tribal organization to operate the project, and it advanced
the budgeted funds. This transferral of authority and responsibility
for decisionmaking to the local community was an administrative de-
vice which the Bureau, after more than 100 years of stewardship, had
failed to employ, excusing its failure by alleging the incompetence
or inexperience of Indian leadership. What the Bureau did not recog-
nize, or did not acknowledge, was that Indian tribes were asking to be
allowed to choose whether to continue in a state of dependency or to
exercise such sovereign powers as were theirs to assert. The Bureau
in the 1960's still had not adapted its thinking to the evidence of In-
dian survival and the Indian drive for self-determination.

The manner in which the Rough Rock community on the Navajo
Reservation in Arizona assumed responsibility for the education of
its children exemplified the new direction in Indian affairs. A new
school plant had just been completed by the Bureau when the Office
of Economic Opportunity proposed that the Navajo community as-
sum.e control of the school through a school board to be appointed by
the community. The OEO agreed to provide developmental funds, if
the BIA would make available to the community the operating funds
which it had already budgeted for that purpose.

The shift in educational goals and methods which resulted from this
agreement was of more importance than the actual transfer of author-
ity, though that was significant in itself. For the first time an Indian
community, not the professional people recruited from the outside,
became responsible for the success or failure of a school. As a conse-
quence of the shift in control, the school could contribute to the devel-
opment of the community by providing learning opportunities for
adults as well as children. Because it was now part of the commimity,.
the school became involved in the normal process by which children are
integrated into the adult world; it was no longer an alien institution
depriving the adult world of a national increment of fimctioning
members. By teaching English as a second language, the child could
acquire a basic competency in his native language before ventur-
ing into a foreign mode of speech, and the school became less
threatening.^^

This development at Rough Rock had an explosive effect all through
the Indian country. Tribal delegations from as far away as Canada
visited the site and listened to the all-Navajo school board members
talk about educational sfoals and philosophies — and on their return
to their home communities many of these tribal leaders bejran ac-
tions that would lead to control of the education of their children.
Within a few years, tribes or communities in several States and in
Canada established their own school boards and assumed the m.nnn,<re-
ment of local schools. In a movement paralleling these efforts, Indian
community colleges were organized and staffed with Indian teachers
and administrators.

s*IT.S. Spnatp. roniTriittpe on Labor and PnhHo Welfarp. hpnrinfra. 1969, Indian Educa-
tion, pt. 1, pp. 12-25, Washington D.C. : U.S. Government Printing Office.

INDIAN STUDIES PROGRAMS

By the 1960's still another development marked the changing time.
Indians were enrolling in colleges and universities in unprecedented
numbers, and going on to graduate and professional schools. More-
over, the major universities and many State institutions found it neces-
sary to install special programs, or to expand traditional offerings, to
accommodate this new student body. A survey conducted in 1974 by the
Western Interstate Commission on Higher Education reported that
100 institutions of higher learning, located in 23 States, were offering
course work designed to meet the interests of Indian students, and
in that year a total of 13,300 were enrolled in college work. Of this
total number, 9,438 were undergraduates, 535 were in graduate school,
and 3,347 were in special (nondegree) programs.*^"

This was a different kind of student body, as the institutions recog-
nized in their curriculum changes. The Indian students entered college
training, not primarily as a means of achieving material success in the
white man's competitive society, but to acquire the knowledge and
skills needed to bring about improved living conditions at home, to
protect their position as a sovereign people, and to define acceptable
goals for themselves and their tribes. They talked about "education
for Indian purposes", and they were concerned that "self-determina-
tion", as the term was used in the 1970's5 should have substance and
meaning.

The term received wide public attention when it was employed in
Presidential messages to Congress relating to the conduct of Indian af-
fairs. President Johnson in 1968 declared : "We must affirm the right
of the first Americans to remain Indians while exercising their rights
as Americans. We must affirm their rights to freedom of choice and
self-determination." ^'^

In 1970, President Nixon denounced the termination policy of the
Eisenhower administration — making no mention of his position in
that administration — and declared :

This, then, must be the goal of any new national policy toward the Indian
people : to strengthen the Indian's sense of autonomy without threatening his
sense of community * * *. There is no reason why Indian communities should be
■deprived of the privilege of self-determination merely because they receive
monetary support from the Federal Goverriment. Nor should they lose Federal
money because they reject Federal control.'^

These declarations, at the highest level of government, acknowledged
for the first time what Indians have al Vv'ays wanted : The right to make
■choices ; the right to decide, as individuals and as tribes, how to adapt
to the modes of the general society without destroying the values they
cherish. When this right of decision prevails, som.e individuals may
opt for making themselves over to conform with another lifestyle;
some tribes may abandon traditional patterns in favor of new goals
and new ideals. But unless such a climate of free choice exists, change
will be resisted, and coercive change will only repeat the antagonisms
and failures of the past.

so Locke. Patricia (ed.), 1974, A Survey of College and University Profrrams for Ameri-
can Inrlians. Boulder, Colo. : Western Interstate Commission for Higher Education.

81 Presidential Documents, VCeeklv Compilation of, 106S, vol. IV, No. 10, Washington,
D.C.. U.S. Government Printing Office.

82 Message from the President of the United States, 1970, Recommendations for Indian
Policy, Washington, D.C. : U.S. Government Printing Office.

CONGRESSIONAL ACKNOWLEDGMENT

Congress has now moved to give legal sanction to the principle of
free choice with the enactment o,f the Indian Self-Determination and
Education Assistance Act.'^^ Laws are not self-fulfilling, hoAvever, and
while the language is reassuring, the manner in which the 1075 Act
is administered will determine its effectiveness. If the administrators
proceed from the assumption that the Indian people have no future
as Indians and that assimilation and the loss of identity are inevitable,
the explicit intent of Congress will be subverted. National policy will
continue to be what it has been in the past — a strategy of manipulating
tribal leadership into compliance, with the usual result of discrediting
the leadership.

The Self- Determination Act is of particular promise because it pro-
vides a formula for dealing with what has alwa3's been a major ob-
stacle to the transfer of power from the bureaucracy to the Indian
community. The Secretary of the Interior as the Federal official ac-
countable for Indian trust property, has never been willing or legally
able to reduce his responsibility as trustee. A principal criticism leveled
at the Indian Reorganization Act arose from the failure to confront
that issue. The Act required that tribal constitutions and charters be
approved by the Secretary, as well as tribal actions affecting trust
property, tribal membership, or any matters relating to Federal
trusteeship. The tribal contracting arrangement authorized by the
Self-Determination Act, if constructively administered, can lead the
way to effective and purposeful tribal government.

INDIAN READINESS

What could be the decisive factor in determining national Indian
policy is the state of readiness of the Indian population. Many nega-
tive conditions still prevail : Educational levels are still much too low;^
the delivery of health services is grossly inadequate; Avretched hous-
ing breeds health problems and social ills: unemployment rates greatly
exceed local and national averages ; the affinnation of water rights re-
mains clouded, and meantime the pressure to reduce or to confiscate
available water continues to grow ; resource development languishes.

In spite of these crippling handicaps, remarkable advances have
been made. As already indicated, Indians have entered academic and
professional training in unprecedented numbers. Indian lawyei-s are
now in practice, many of them specializing in the intricacies of Indian
case law. The number of trained physicians and nurses has increased
to the point of warranting the formation of professional associations.
Administrative and supervisory positions in a number of school
systems are manned by Indians. Indian artists, writers, poets, musi-
cians, scientists, and engineers have established national reputations.
Indian tribes are writing: their histories and organizing libraries and
archival depositories. Where native languages were falling info dis-
use, special study courses have been initiated and several tribes are
compiling their own dictionaries. Culture centers are operating at
many reservations, encouraging a renaissance in traditional arts, music,.
dances, myth and legend, costumemaking, even cookery.

«3 88 Stat. 2203. 1975 ed.

What is most remarkable about these developments is that they
intensify and make explicit the boundaries of Indian identity. Native
America before the coming of Europeans was a land of many separate
peoples, with their separate languages, histories, traditions, and man-
ner of adapting to the physical environment. Each tribe, or band, or ■
camp was a self-contained entity organized in varying patterns of:
social structure. Such a population of separate and closed systems was ;
easy prey for invading forces employing divide and conquer tactics. ,

What IS now happening, after 400 years of Indian-white contact, is ;
a coalescing of Native Americans into something approaching a sense
of national identity. Indians have become aware of their common
problems and common peril, and they are learning how power is used
in contemporary society. Tribal boundaries are not likely to dis-
appear, but increasingly Indians can be expected to act in common
cause.

National Indian policy of the future must take into account that;
Indians will survive, as individuals and as communities; they will
grow in numbers, and they will insist on freedom of choice. That
insistence, it should be recognized, is of the same quality of mind angl
.spirit that made possible the growth of the free peoples of the world.

CHAPTER TWO
CONTEMPORARY INDIAN CONDITIONS

Today, available statistics on Indians in the United States continue to paint a
picture of widespread deprivation unequalled by any other United States sub-
group. Whether men or women, living in the citv or country, Indians in the
United States suffer from inadequate education and relatively poor health, low
incomes, poor housing and sanitary conditions generally regarded as unacceptable.

(83)

CONTENTS

Page

Introduction 87

Lack of reliable statistics 87

Who is an Indian? 89

Indians are everywhere 89

Indian poverty 91

Schoohng low and unemployment high 91

Statistical profile 93

Recommendation 94

(85)

CHAPTEK TWO
CONTEMPORARY CONDITIONS

[This chapter is based on the work of Mr. Stephen A. Langone and Mr. Richard
S. Jones, Government Division, Congressional Research Service, Library of
Congress]

Introduction

Who exactly are American Indians ? "Where do they live ? Are there
Indians that do not live on reservations ? Are there Indians in cities ?
Are there Indians that live outside the Western United States? How
much do they earn, where do they work, what is their educational and
health status ?

To answer these questions, the Commission has assembled demo-
graphics on the Indian population in the United States. The picture
that emerges is sometimes shocking, sometimes upsetting to precon-
ceived notions, and often depressing. This picture, although incom-
plete, is a basis for preliminary action.

Lack of Reliable Statistics

Eeliable statistics on Indian affairs that could be the basis for chart-
ing conditions, planning programs, and measuring progress do not
exist. The reasons for this inadequacy range from the simplest to the
most complex. The basic reason is that there is no clear-cut, generally
accepted definition of "an Indian". Without this basic definition, the
development of further statistical descriptions is very difficult. Defin-
ing the problems of various categories of Indians (urban, rural,
women, men) becomes a complex task, particularly at census time
when some Indians are not identified or contacted to fill out census
forms or are not familiar enough with English to do so.

The task is made more difficult by the fragmentation of jurisdiction
over the people who are classified as "Indians." Health services, agri-
cultural and other developmental assistance, business loans, housing
aid, land development, and other programs, though all directed to
Indians, are handled by different Federal agencies with widely dis-
similar interpretations of eligibility criteria.

This results in a diffusion, not only of effort, but of information.
Data that would yield statistics reflecting the Indian condition are
scattered among many Federal agencies, with far-reaching and unfor-
tunate results. Not only are data difficult to obtain, but they are often
incomplete, or unrepresentative. Worse still, the task frequently is not
undertaken at all because of the tremendous difficulty of implementa-
tion.

Ironically, this dearth of information is not for lack of interest or
resources. The Bureau of Indian Affairs has expanded dramatically
over the past 100 years, and congressional interest in the subject of

(87)

Indian policy has increased as well. Studies, reports, and analyses flow-
out of Washington with great regularity. Yet the problem of coordi-
nation of material on a regular basis remains.

The number of Indians under Federal jurisdiction has risen from
290,000 to nearly 550,000 over the past 100 years. Yet, of approxi-
mately 18,000 reference cards on Indians in the Library of Congress,
only 16 point to statistical information; only 11 can be found under
the heading of census ; and none deal with population or income.

Other sources also yield little valuable information. For example,
100 years ago the annual report of the Commissioner of Indian Affairs
was a 619-page book summarizing policy decisions and situations at
each field jurisdiction. It contained tables with information on popula-
tion, education, agriculture, trust funds, trust land sales, and liabilities,
in addition to miscellaneous reports.^ In contrast, the most recent
Commissioner's annual report contained 15 double-spaced pages, with
only four statistical tables dealing with awards, budgets, funding, and
income from leases.^

The Bureau of Indian Affairs publishes other reports dealing with
land, reservation development, population, and labor force status.
However, the information contained in these reports does not provide
a comprehensive picture of the state of Indian affairs today.*

Indian affairs are a far more complex subject today than they were
100 years ago, although those early times are more easily documented.
In 1869, the Bureau of Indian Affairs was budgeted at $7,042,923,
numbered 400 employees and had jurisdiction over 289,778 Indians. In
1977, the Bureau had a budget of $590,510,000, a staff of 13,000 and
543,000 Indians in its service population.^ Yet today there are no
statistics available to document the status of Indians, their living con-
ditions, and the effects of programs aimed at promoting their well-
being.

This lack of solid statistical information also extends to other agen-
cies assisting Indians. An additional $160 million or more is spent on
Indian programs each year by 9 Federal agencies :

Economic Development Administration ;

Small Business Administration ;

Department of Housing and Urban Development ;

Farmers Home Administration ;

Rural Electrification Administration ;

Forest Service ;

Bureau of Sport Fisheries and Wildlife ;

U.S. Geological Survey;

Department of Labor.
Even with all these agencies, and even with all these funds, there is
no continuous statistical information on the condition of the American

*Spp Appendix B, Bibliography of Materials used by the Commission for a list of these
publications.

1 T^S. Bureau of Indian Affairs. Report of the Commissioner of Indian Affairs made to
the SprTetary of the TiitPrior for the rear ISfif). Wnshinarton. 1S70. 010 pp.

^TT.S. Bureau of Indian Affairs, Indian Affairs 1968; A Progress Report from the Com-
missioner of Indian Affairs, Washington. 1969. 15 pp. The BIA has not published a formal
anniinl report as snoh siiipe lOO'S. f.Sonreo: Letter from the Executive Secretary, U.S.
Dennrtment of the Interior, OfBce of the Secretary. Sept. 9, 1976).

^ BIA, Estimates of Resident Indian Population and Labor Status; by State and Reser-
vation : March 197.''> (released .T'ine 197;!), 19 pp. BIA. Office of Indian Education Programs,
Statistics Concerning Indian Educntion, Fiscal Year 197.5. 49 pn. BI\. Office of Trust
Responsibilities, Annual Report of Indian Land as of June 30, 1975, 66 pp.

Indian. Though Census Bureau statistics exist, and are the basis for
facts currently known and accepted about Indians, they are often
based on other Federal records. These other Federal records usually
do not extend to all persons of Indian ancestry, but only to those
individuals served by the Bureau of Indian Affairs.

Who Is an Indian?

The Federal Government, State gov^ernments and the Census Bu-
reau all have different criteria for defining "Indians" for statistical
purposes, and even Federal criteria are not consistent among Federal
agencies. For example, a State desiring financial aid to assist Indian
education receives that aid only for the number of people with one-
quarter or more Indian blood. For preference in hiring, enrollment
records from a federally recognized tribe are required. Under regula-
tions on law and order, anyone "of Indian descent" is counted an
Indian.

If Federal criteria are inconsistent, State guidelines for deciding
who is or is not an Indian are even more chaotic. In the course of
preparing this report, the Commission contacted several States with
large Indian populations to determine their criteria. Two States ac-
cept the individual's own determination. Four accept individuals as
Indian if they were "recognized in the community" as Native Ameri-
cans. Five use residence on a reservation as a criteria. One requires
one-quarter Indian blood and still another uses the Census Bureau
definition that Indians are those who say they are.

If simply defining who is an Indian presents problems, compiling
other vital statistics about Indians and Indian affairs presents almost
insurmountable obstacles.

Indians Are Everywhere

Population figures have played an historic role in clarifying the
effects both planned Indian programs and accidental circumstances
have had on Indian people. Through many periods of Federal policy,
figures demonstrating Indian death rates have often stirred public
attention to Indian policy and popular concern for Indian needs. In
the twentieth century, the increase in Indian population has been
viewed as an indication of improving conditions on Indian reserva-
tions: in the long historical view, however, this recent trend has been
late in developing. Indian population numbers show an impressive
gain since the end of the last century when 256,000 Indians were re-
ported for the area now comprising the United States. For this same
area it had been estimated that the Pre-Columbian population was
approximately 890,000, and so it appears that today's Indian cou.nt has
recovered most or all of the losses reported over the previous 450 years.
That, however, may turn out to have been a completely erroneous con-
clusion. The work of recent scholars in this field suggests that the Pre-
Columbian population for the area north of Mexico (what is now tl^.e
United States. Canada and Greenland) may have numbered between
10 and 12 million. If this revised calculation can be substantiated (it is
now undergoing vigorous examination), it Avill clearly demonstrate

92-185—77 7

the devastating effects of invading diseases and methods of warfare.

Today, available statistics on Indians in the United States contmue
to paint a picture of widespread deprivation unequalled by any other
United States subgroup. Whether men or women, living m the city or
country, Indians in the United States suffer from inadequate educa-
tion and relatively poor health, low incomes, poor housmg, and sani-
tary conditions generally regarded as unacceptable.

These conditions, of course, can be measured only among those de-
fined as Indians. The figures used here are taken primarily from the
1970 Census Bureau records and are based on the number of people
who identified themselves as Indians.

According to these files, there are 792,730 Indians, or Native Ameri-
cans, living in every State of the Union and the District of Columbia,
an increase of 122 percent since 1950.* Many people familiar with
Indian issues consider the Census figure to be low and a figure of one
million is generally considered more accurate. Vermont has the lowest
Indian population (229) of all the States, even though more than 25
percent of all Indians live in the Northeast, and more than half live
outside Western States. North Carolina, for example, is the State with
the fifth-largest Indian population (44,406) in the country.

Within the United States, a minority of 28 percent of all Indians
live on reservations that range in size from the 15.4-million-acre
Navajo reservation with approximately 125,000 tribal members
located in the Southwest to the one-quarter-acre Golden Hill Eeserva-
tion in Connecticut with six citizens. A total of 289 tribes and bands
live on 268 "federally recognized" reservations or otherwise defined
"trust areas" in 26 States. Nine "State-recognized" reservations in
New York and one in Texas receive some Federal assistance.^ Two
additional tribes are recognized in a limited fashion.^ In addition,
there are 24 State Indian reservations,^ and 219 Native Alaskan vil-
lages or reservations, and even some urban reservations such as Agua
Caliente in Palm Springs, Calif.

However, State and Federal reservation statistics do not tell the
whole story. An estimated 32.000 Indians exist without either Federal
or State recognition. Some belong to tribes that were never recog-
nized by the Federal Government, others to tribes whose Federal
status was "terminated" by legislation during the 1950's and early
1960's. These tribes, or communities, are scattered across the United
States and include the Mohegan Community in Connecticut, the Mon-
tauk Community on Long Island, the Narragansett Community in
Ehode Island, the Houma Community of Louisiana, the Yacqui
Indians of Arizona and others.^

■iln 1960 the figure was 523,591; in 1900, 237,196. The 1970 census does not Include
34,538 Eskimos and Aleuts among the total Indian count. (See U.S. Dept. of Health, Edu-
cation, and Welfare, A Study of Selected Socio-Economic Characteristics of Ethnic Minori-
ties Based on the 1970 Census; vol. Ill, American Indians, July 1974, pp. S, 18.)

^ Ch. 2, Legal Concepts and ch. 6, Social Services, address this issue'. These are the Alle-
ghany, Cattaraugus, Oil Springs, Onondaga, Poospatuck, Shinnecock, St. Regis Mohawk
Tonawanda, and Tuscarora in New York and the Alabama-Coushatta in Texas '

These are the Lumbees in North Carolina and the Tiguas in Texas. The Lumbees have
neither a communal land base nor a traditional tribal government, while the Tiguas live on
a 73-acre reservation held in trust by the State and receive services from the State

•^ See U.S. Dept. of Commerce, Economic Development Administration. Federal and State
Indian Reservations and Trust Areas, 1974. U.S. Government Printing Office stock No
0311-00076, 604 pp. ^ v^mce, biocK i>o.

8 See Theodore W. Taylor, The States and Their Indian Citizens, Bureau of Indian
Affairs, 1972, pp. 226-32.

However, the largest percentage of Indians are members of neither
reservations, nor communities but are urban residents."' More than 46
percent of all Indians (335,738) are city dwellers, double the number
of 1960.^ They may be members of a State or federally recognized
tribe, a community without its own I'eservation or land, or memlters
of a "terminated'' tribe. ^° The larsrest number of urban Indians
(23.908) live in the Los Angeles-Lone; Beach area, followed bv Tulsa,
Okla. (15.983). Oklahoma City (12,981), San Francisco-Oakhind
(12.041), and Phoenix (10.127). However, urban Indians are found in
many large cities ; Census Bureau data list 30 "SMSA's ^^ with large
Indian populations.

IXDIAX Po\'ERTY

No matter where Indians live, the pattern is essentially' the same.-
Incomes are lower than that of the population at large, with more
Indians below the poverty level.

INDIAN INCOME

Income
(percent)

Median
income

Poverty

levels"

(percent)'

All Indians, $4,000 a year 34

U.S. population, $4,000 a year 15

All Indians, $10,000 a year 22

U.S. population, $10,000 a year 47

$5, 832

9,590

33;

1 These ppctions are based upon 1970 census data as presented in a Dept. of Health,
Education, and Welfare report entitled "A Study of Selected Socio-Ecor.o'uic Characteristics
of Ethnic Minorities Based on tlie 1970 Census" ; vol. Ill; American Indians, July 1974,
100 pp. Cited above (Cf. footnote No. 1).

Statistics on health care are not quite as dismal.^^ Since the Indian
Health Service began in 1955, mortality rates have declined, and life
expectancy has increased. For example, between 1955 and 1971 the
Indian infant death rate decreased 56 percent, and the maternal death
rate by 54 percent. Deaths from tuberculosis, gastritis, and influenza/
pnemnonia declined 86, 88, and 57 percent respectively. Although life
expectancy increased from 60 years in 1950 to 65.1 years in 1970, it re-
mains the lowest of any U.S. population group.

Still, health care is a serious problem for the Indian population.
The Indian death rate from accidents was three times the national
average in 1971. So was the Indian mortality rate for cirrhosis of the
liver, tuberculosis, and gastritis. Although death rates have decreased,
certain diseases still disproportionately afflict Indian tribes. Between
1965 and 1971, the incidence of otitis media (a disease of the middle
ear affecting balance) increased 74 percent. Strep throat and scarlet
fever increased 218 percent and influenza by 242 percent.

Schooling Low and Unemployment High

Both Indian men and women suffer from inadequate and inappro-
priate education. They also suffer from unemployment and low income.

* See ch. 9. Off-Reservation Indians for more information.

9 See DHEW study, op. cit., p. 13.

^^ Taylor, op. cit.

^ Standard Metropolitan Statistical Areas.

" Ibid., p. 58.

The following charts show the comparative educational levels of
Indian men and women with their non-Indian counterparts.

EDUCATION -MEN (PERCENT)

Indian
men

U.S. popula-
tion, men

Completing grade school

63.

34.0

3.5

10.5

73.0

Completing high school

54.0

Completing college

12.6

Median (years)

12.1

EDUCATION -WOMEN (PERCENT)

Indian
women

U.S. popula-
tion, women

Completing grade school 66.0 -|- 75.0

'Completing high school 35.0 55.0

'Completing college 2.5 7.8

iMedian (years) 10.5 12. 1

Differences in educational levels often make themselves felt as
Indians seek work. More Indians are in the ranks of the unemployed
or the working poor, than members of the U.S. population at large.
Yery few make the $10,000 that is considered a living wage. The situ-
ation is highlighted by one statistic: 74 percent U.S. men are em-
ployed, while only 56 percent of Indian men are working. The unem-
ployment rate of 11.6 percent for Indian men and 10.2 percent fori
Indian women is not a true reflection of unemployment since unem-
ployment is determined by registering those seeking work. Obviously,
on reservations with no jobs, many do not register and are not included]
in these unemployment statistics.

EMPLOYMENT— MEN
[In percenll

Indian
men

U.S. popula-
tion, men

'Unemployed. 11.6

Employed 56.0

Earning S4,000 annually or less 55.0

Making $10,000 annually or more 8. 5

Median income $3, 509

3.9
74.0
31.0
25.2

$6, 614

Though Indian women are not as often unemployed as Indian men,

they are often found in the ranks of the underemployed, or those^
earning $4,000 annually or less. Additionally, they are less likely to
earn the $10,000 a year that is at least a beginning toward a living
wage.

IVIPLOYMENT— WOMEN
[In percent]

Indian U.S. popula-
women tion, women

I Unemployed .- 10.2 5.1

Employed 31.0 39.0

Making |4,000 annually or less 80.0 68.0

Making $10,000 annually or more 1.5 3.2:

Median income - $1,697 $2,404^

The conditions of poverty among Indians who live in rural areas are-
worse than the conditions of those residing in cities. This general
poverty extends to housing, sanitation, and transportation as well. The
comparison with other Americans is sharp :

[In percent)

Sanitation

Housing
(crowded)

Without
water

Without
toilets

Transporta-
tioiv

Rural Indians

14.

67.4

31. S

48.0 .
'""13^6".

Rural U.S. population

10.1

8.7

11.7-

Rural Indian women face the most difficult lives of all being well
below both urban women and rural and urban men, in education,,
income levels, and emploj'ment. In such families, 68 percent have
incomes of $4,000 a year or less and only 4.3 percent have incomes of
$10,000 or more annually. These income levels force these families to-
live in tragic misery.

Education Employment
(median, (percent Income-

years) employed) (median)-

Rural Indian women 9.7 26 $1,35^

Rural Indian men 9.4 56 2, 74»

Urban Indian women 11.4 38 2,023

Urban Indian men 11.5 65 4,65g

Statistical Profile

Overall, the picture that emerges from these statistics is a grim
one. The fact that it probably is not completely accurate and certainly
not up-to-date can only cause speculation as to how bad the problem
is today. Xor is it possible to establish clearly if programs aimed at
improving Indian lives are having any significant success.

Efficient planning and responsive execution of development pro-
grams must be based on accurate information on current economic and
social conditions and on changes in these conditions over time. Despite
increases in Federal expenditures for Indian programs from $7 mil-
lion to approximately $1.5 billion over the past hundred years or so,
statistics regarding these programs are more inadequate than ever.

The increasing neglect of Indian statistics has long been recognized
by those interested in Indian affairs. As long ago as 1904, Charles J.
Kappler, a staff member of the Senate Indian Affairs Committee,
decried the general lack of information while compiling a four- volume
publication, Indian Laws and Treaties. In the introduction to his
first volume he states:

An accurate compilation of the treaties, laws, executive orders, and other
matters relating to Indian affairs, from the organization of the Government to
the present time, has been urgently needed for many years, and its desirability
has been repeatedly emphasized by the Commissioner of Indian Affairs in his
annual reports to the Congress.^^

'V^'lien Kappler's four-volume compilation ^* was reprinted 46 years
later, the House Interior Committee pointed out that it had:

"* * * long recognized the need for gathering into one compilation all avail-
able important statistical information relative to the Indians under the com-
mittee jurisdiction and the law affecting such Indians.

This concern has been echoed by virtually every Congress since ,
rthat time. Yet while concern and allocated funds and staff increase,
the availability of reliable information does not. Statistics on unem-
ployment, educational attainment, land in trust, income, health, and
-so forth are less available today than they were many years ago.

Recommendation

The Commission recoTn/mends that:

Congress requires the Assistant Secretary of Indian Affairs to pro-
vide a comprehensive annual report on Indian matters which will
contain reliable, current, and accurate data.

The Secretary of Interior be directed to gather and maintain mate-
rial for this report from all Government agencies serving Indians.

The report be organized to present facts relating to Indian treaties,
agreements, and Executive orders; current land, population, tribal
government, economic, health, welfare, education, and housing statis-
tics in Indian communities; material relating to the use of natural
resources on Indian land; and information on administration of all
Indian programs. A sample format for this proposed report can be
fomid in Appendix C.

13 Indian Affairs : Law and Treaties. 88th Conj?., 2d sess. Senate Doc. No. 319.

" House, 81st Coug., 2d sess. Committee on Public Lands, Subcommittee on Indian
Affairs, Compilation of Material Relatinjr to tlie Indians of the United States and the
Territory of Alaska, Including Certain Laws and Treaties Affecting Such Indians, June 13,
1950, serial No. 30, 1110 pp.

CHAPTER THREE
BASIC DOCTRINES OF AMERICAN INDIAN LAW

C»ne of the most significant elements of Indian treaty law is that Indian treaties
were not a grant of rights from the United States to the tribes, but rather a grant
from the tribes to the United States,

(95)

CONTENTS

Page

Introduction 99

Tribal sovereignty: Indian tribes as governments 99

The trust relationship : The United States special and unique relationship

with Indians 103

Plenary power: Congressional authority over Indian aflFairs 106

Definition of Indian: Tribal membership 107

Indian treaties: Cornerstones of Indian law 109

Jurisdiction: Varying rights and responsibilities in Indian country 112

The importance of jurisdiction 112

Indian country 113

Original exclusive tribal jurisdiction 114

Federal statutes altering jurisdiction in Indian country 115

The recent cases 117

Synthesis: Indian tribes and people in America's legal and political system 119

(97)

CHAPTER THREE
BASIC DOCTRINES OF AMERICAN INDIAN LAW

[This chapter was prepared for the Commission by Professor Charles F.
Wilkinson, School of Law, University of Oregon]

Introdtjctiox

This Commission's charter from Congress, reflecting 200 years of
legislative and executive action, aptly describes the relationship be-
tween the United States and American Indian tribes as "unique" and
"special."' ^ Such words have repeatedly been emphasized by the
United States Supreme Court in opinions stretching across almost li/^
centuries.- Thus the unequivocal message from all three branches of
our Federal Government is that Indian law and policy is a field unto
itself.

It is almost always a mistake to seek answers to Indian legal issues
by making analogies to seemingly similar fields. General notions of
civil rights law and public land law-, for example, simply fail to re-
solve many questions relating to American Indian tribes and indi-
viduals. This extraordinaiT body of law and policy holds its own
answers, which are often wholly unexpected to those unfamiliar
with it.

This chapter examines the root doctrines of the Federal-tribal rela-
tionship. Ultimately, these doctrines allocate legal and political power
among three sets of governments — the tribes, the United States, and
the States — on more than 50 million acres of Indian land. For better
or worse, law plays an enormous role in the lives of American In-
dians — perhaps a greater role than is the case with any other group
of American citizens. Because of that, the doctrines peculiar to Indian
law will continue to play the same crucial role that they have played in
the past ; they will determine whether, and to what extent, American
Indians will be able to control their own destinies.

Tribal Sovereigxtt: Indian Tpobes as Governments

Sovereignty means the authority to govern, to exercise those powers
necessary to maintain an orderly society. The powers of sovereign
governments are familiar : the power to enact laws ; the power to estab-
lish court systems; the power to require people to abide by established
laws; the power to tax; the power to grant marriages and divorces;
the power to provide for the adoption of children; the power to zone
property; the power to regulate hunting and fishing; and so on. "Sov-

1 Public Law 93-580. Jan. 2, 1975, 88 Stat. 1910, as amended by Public Law 94-80 5§ 1-4.
Aug. 9. 1975, 89 Stat. 41.5. . »« .

2 See. e.g.. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ; Morton v. Mancari,
417 U.S. 535 (1974).

(99)

100

ereignty," therefore, is a collection of all or some of those powers
^vhich governments (such as the United States, States, counties, find
cities) have and exercise on a regular basis.^

When we talk about tribal sovereignty, then, we are saying a very
simple but deeply fundamental thing: Indian tribes are governments.

The status of Indian tribes as sovereigns, or governments, has been
uniformly recognized by Congress and the courts from prerevolution-
ary days through the present. This sovereign status is reflected in the
early treaties, the early cases, the recent cases, and the recent legisla-
tion. Since tribal sovereignty is a doctrine which has evolved and has
"been clarified over more than 200 years, it is helpful to trace the de-
Telopment of the doctrine.

The single most important court decision, which is still relied upon
"by courts, is Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). This
■case resulted from the struggle between the State of Georgia and the
•Cherokee Nation, whose lands became surrounded by the State of
'Georgia. In the late 1820's, Georgia passed a series of laws which effec-
tively abolished the Cherokee government. One of the laws included a
requirement that any non-Indian residing on Cherokee land rnust first
obtain a permit from the Governor of Georgia. Two non-Indian mis-
■sionaries resided on Cherokee land at the invitation of the tribe but
without such a permit from the Governor. The Georgia courts con-
victed the missionaries of violating the State law, but the United
States Supreme Court overturned that conviction.

Chief Justice John Marshall's opinion in Worcester v. Georgia
struck down the Georgia State laws which purported to operate on
Cherokee lands. Interpreting the treaties, the Constitution, and the
Indian Trade and Intercourse Act, Chief Justice Marshall found that
Indian tribes were "distinct, independent, political communities hav-
ing territorial boundaries, within which their authority [of self-gov-
ernment] is exclusive * * *." Thus, the State laws could have no effect
on Cherokee lands because the Cherokee Tribe was a separate sov-
ereign government.

While the opinion in Worcester v. Georgia holds that Indian tribes
are not subject to State law, later cases make it clear that Indian
tribal sovereignty, or self-government, is subject to the superior legisla-
tive authority of Congress.* To put it another way, Georgia could not
regulate affairs on the Cherokee reservation, but the United States
•could. The doctrine of tribal sovereignty, as first set forth in Worcester
V. Gc'orgia, has been explained in its most classic form by Felix Cohen,
then Assistant Solicitor, Department of the Interior, a writer who is
still considered by the courts to be the leading authority on Federal
Indian law:

The whole course of judicial decision on the nature of Indian tribal powers
is marked by adherence to three fundamental principles: (1) An Indian tribe
possesses * * * ail the powers of any sovereign state. (2) Con(]iiest renders the
tribe subject to the legislative power of the United States and, in substance,
terminates the external powers of sovereignty of the tribe, * * * but does not
by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-
government. (3) These powers are subject to qualification by treaties and by
express legislation of Congress, but, save as thus expressly qualified, full powers

= See generally F. Cohen, Handbook of Federal Indian Law 122-50 (U. N. Mex. ed. 1971)
(hereinafter cited as "Cohen").
^ Congress' plenary power over Indian affairs is discussed later in this chapter.

101

of internal sovereignty are vested in the Indian tribes and in their duly con-
stituted organs of government."

The doctrine of tribal sovereignty, or self-government, remains the
starting point for any current discussions concerning the powers of
Indian tribes. An Indian tribe inherently possesses all powers held by
a government. The tribe continues to hold these sovereign powers until
they are expressly relinquished by the tribe, as in a treaty, or until they
are expressly taken away by Congress.

Since Worcester v. Georgia in 1832, the Supreme Court has treated
tribal sovereignty as an evolving doctrine. This evolution is not un-
usual ; many provisions of our Constitution itself, including the Com-
merce Clause and the Bill of Eights, have also undergone great change
during the same period. In the late 19th and early 20th centuries, the
Supreme Court emphasized the plenary authority of Congress in re-
lation to tribal sovereignty as Congress began to exercise its broad
power to deal with Indian affairs.^ In the latter part of the 19th cen-
tury, the Court implicitly limited tribal sovereignty by finding that a
crime committed by a non-Indian against a non-Indian on the res-
erAation was wholly the concern of the States, not of the Federal
Government.'

With passage of the Curtis Act of 1898 (30 Stat. 495) and the
abolishment of the Indian Territory, tribal government lapsed into a.
period of dormancy. The policy trend toward destruction of tribal
government was reversed in 1934 with passage of the Indian Reorgani-
zation Act (25 U.S.C. sec. 461-479). In 1959, in WilUams v. Lee, 35&
U.S. 217 (1959), the Supreme Court gave recognition to the continued
strength of the doctrine of tribal sovereignty.

In the early 1960's, the Supreme Court itself seemed to be caught
up in tlie termination era. ]NIost particularly. Organized Village of
Kake v. Egan, 369 U.S. 60 (1962), set forth the previously unprece-
dented proposition that State laws would apply to Indians on the
reservations, in spite of notions of tribal sovereignty, unless the State
laws infringed upon tribal self-government or were prohibited by
Federal law. This finding, which was not raised by the facts of the
case and which has since been limited by the Supreme Court,^ was a
clear departure from earlier cases finding that reservation Indians
were beyond the reach of State authority.

But the Supreme Court decisions of the 1970's have reemphasized
the importance of tribal sovereignty. MeClanahan v. Arizona Tax
Commission, 411 U.S. 164 (1973), found that "the Indian sovereignty
doctrine is relevant, then, not because it provides a definitive resolu-
tion of the issues in this suit, but because it provides a backdrop against
which the applicable treaties and Federal statutes must be read."^
Thus, Federal treaties and statutes must be "read with this tradition

'' Cohen, supra note 3, at 123.

« Vnited States v. Kagama. 118 U.S. 375 (1886) ; Lone Wolf v. Hitchcock, 187 U.S. 553
(1908).

■^ HcBrntneii v. Vnited States, 104 U.S. 621 (1882) ; Draper v. United States, 1G4 U.S.
240 (1896). in this same time period, however, three decisions also affirmed the general
taxing power of a tribe over persons and property within the geographiral l)nniidar1ps of
the tribe. Morris v. Hitchcock, 24 App. D.C. r>6?> (1904). aflf'd. 194 U.S. 384 (1904) : Maareij
V. Wright, 10.^. F. 1003 (Sth Cir. 1900) aff's per cur. 3 Ind. T. 243. 54 S.W. 807 (1900).
Buster v. Wrif/ht, 135 F. 947 (Sth Cir. 1905). aff'g 82 S.W. 855 (1904), app. dlsm. 203
U.S. 599 (1906).

>* MeClanahan v. Arizona Tax Commission, 411 U.S. 164. 167-68, 172 n. 8, 176 n. 5.
180 n. 20 (1973) ; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 150 n. 15, 153
(1973).

102

of sovereignty in mind." The Supreme Court then ruled that a reserva-
tion Indian is not subject to State income tax for income earned on the
reservation. The Court restated most of the basic law of tribal sov-
ereignty first established by Chief Justice Marshall in Worcester v.
Georgia :

"[T]he policy of leaving Indians free from state jurisdiction and control is
deeply rooted in the Nation's history" * * * This policy was first articulated
by this Court 141 years aj?o when Mr. Chief Justice Marshall hold that Indian
nations were "distinct political communities having territorial boundaries, within
which their authority is exclusive, and having a right to all the land within those
boundaries, which is not only acknowledged, l)ut guaranteed by the United
States."

An even more recent case is Uirited States v. Masune, 419 U.S. 544
(1975), which dealt with the right of tribal governments to exercise
regulatory authority over non-Indians. The Wind River Tribes, acting
pursuant to Federal statutes and with the approval of the Secretary
of the Interior, passed a law requiring that sellers of alcoholic bever-
ages must obtain liquor licenses from the tribe. This pattern of regu-
lation is, of course, similar to regulation by State governments. A non-
Indian was denied a liquor permit from the tribe. The operators of the
liquor store continued to operate without a license and a Federal prose-
cution followed. The Tenth Circuit Court of Appeals ruled that the
tribe had no power to regulate a liquor license because it was not a
government. According to the appellate court, the tril)e was nothing
more than a "private, voluntary organization." The Supreme Court
Rejected that reasoning and upheld the requirement of a tribal license.
Justice Rehnquist, writing for a unanimous Court, relied upon notions
of tribal sovereignty and found that Indian tribes are "a good deal
more than 'private voluntary organizations' " :

Thus it is an important aspect of this case that Indian tribes are unique aggre-
gations possessing attributes of sovereignty over both their members and their-
territories, Worcester v. Georgia, 6 Pet. 515, 557 (1832) : they are "a separate ■
people" possessing "the power of regulating their internal and social rela-
tions * * *."

^ Thus, today's Supreme Court has made it clear that tribal sover-
eignty remains a vigorous and far-reaching doctrine. The absolute
view of complete sovereignty, first set forth in Worcester v. Georgia^ .
has been slightly eroded. Nonetheless, Worcester is repeatedly cited
by the courts and the results consistently affirm sovereign tribal rio-hts.
The present law fully and unequivocally supports the conclusion1:hat
Indian tribes initially possess all elements of internal sovereignty
And that their sovereign attributes can be diminished only by Congress
not by the States. These sovereign attributes include such basic gov-
ernmental powers as the following :

1. The power to establish legislatures, usually called tribal
councils.^

2. The power to establish tribal courts.^"

3. The power to tax.^^

cin Ssef."^" ■*^""«'"* "■ ^^^' ^"P'-^^- 1^°^ Grow V. Oglala Sioux Tribe, 231 F. 2d 89 (Sth

^1 See, e.g.. Barta v. Oglala Sioux Tribe. ''59 P '^r\ -.=iq cQfh «!,. lo-o^ r, ^ -rr^ . ,

135 F. 947 (Sth cir. 1905), appeal dismissed 203 uTs 599 (tgOG) ' ^^^ ' '^"*^"" ''• ^"^"*'

103

4. The power to grant marriages and divorces.^^

0. The power to provide for adoptions and guardianships."

6. The power to regulate hunting and fishing.^*

7. The power to control economic development through zoning
regulations and other land use planning devices.^^

8. The power to regulate non-Indian individuals in Indian
country.^^

Other sovereign powers could be added to this list. The point, how-
ever, is not to enumerate all sovereign powers of Indian tribes, but
simply to give examples for the purpose of showing that Indian tribes
are in fact governments. Congress has the unquestioned power to limit
those sovereign rights, but all inherent governmental powers remain
intact until Congress expressly acts. The importance of strong tribal
self-government has been manifested in all recent congressional
legislation.^'^

The Trust Eelationship : The United States' Special axd Unique
Relationship With Indians

The trust relationship between the United States and American
Indians was first set forth in Cherokee Nation v. Georgia^ 30 U.S.
(5 Pet.) 1 (1831). This opinion, which was written by Chief Justice
John ^Nlarshall, stands with ^yorcester v. Georgia as one of the most
significant opinions in Indian law. The two cases retain their vitality
today and are repeatedly cited by modern courts.

Cherokee Nation v. Georgia was handed down one year before the
Worcester decision and also involved the Cherokee Nation's resistance
to Georgia's attempts to enforce State law on Cherokee lands. The
Cherokee Nation filed an action in the United States Supreme Court,
seeking to enjoin enforcement of the State statutes which etfectively
outlawed the Cherokee government and laws. The Supreme Court
refused to accept the case because the tribe was not a ''foreign state*'
within the meaning of Article III of the Constitution. As a result,
the Court did not have jurisdiction over the case.

Chief Justice Marshall, however, proceeded to discuss the legal
status of Indian tribes and their relationship to the Federal Govern-
ment. In doing so, he drew upon international law, colonial and
United States treaties, Federal statutes, and the Constitution. The
Chief Justice characterized the relationship between the two govern-
ments as "perhaps unlike that of any other two people in existence"
and "marked by peculiar distinctions which exist nowhere else."
Marshall agreed with the Cherokee Nation that it was a "state" in that
it was "a distinct political society * * * capable of managing its own

'^ See, e.g., United States v. Quiver, 241 U.S. 602 (1916) ; Cohen, supra note -3. at 137-39.

13 See, e.g., Fisher v. District Court, 424 U.S. 3S2 (1976) ; Wakefield v. Little Light, 276
Md. 333. 347 A. 2(1 22S (1975).

^* ColviUe Tribe v. State of Washington, 412 F. Supp. 651 (E.D. Wash. 1976) ; Quechan
Tribe v. Rowe, 531 F. 2d 408 Oth cir. 1976).

^^ Santa Rosa Band of Indians v. Kings Court, 532 F. 2d 655 (9th cir. 1975). cert,
granted ; Snohomish Count'i v. Seattle Di-'fposal Co.. 70 Wash. 2d 668. 423 P. 2d 22 (1967).

18 See. e.g., Oliphant v. Schlie, 544 F. 2d 1007 (9th cir. 1976), cert, granted: Quechan
Tribe of Indians v. Rowe, 531 F. 2d 408 (9th cir. 1976) ; Barta v. Oglala Sioux Tribe, 259
F. 2d 533 (Sth cir. 1958) ; and U.S. v. Blackfeet Tribal Court, 244 F. Supp. 474 (D. Mont
1963 1 .

1" Report of Task Force IX (vol. 1), p. 73. See also, Bryan v. Itasca County, — U.S. — ,
96 S. Ct. 2102, 2101 n. 14 (1976).

104

affairs and governing itself." But he found that the Cherokee Nation
was not "foreign" because it was within the jurisdictional limits of
the United States and because the treaties with the Cherokees ac-
knowledged dependency upon the United States.

Marshall concluded that Indian tribes, rather than being foreign
states, "may, more correctly, perhaps, be denominated domestic de-
pendent nations * * *." He then invoked the trust relationship by
concluding that the relationship of the tribes to the United States
"•resembles that of a ward to his guardian."

This duty has always been recognized by the courts and has been
variously characterized as a "fiduciary" relationship, a "trust" respon-
sibility, and a "guardian-ward" relationship.^^ Marshall's analysis
that our law has no direct parallel to this trust relationship has
been often emphasized by the United States Supreme Court, which
has described the relationship between Congress and Indians as
"solemn," "unique" or "special," and "moral." ^^ The Court, in utiliz-
ing such unusually forceful language, has relied in large part upon
23olitical principles which have emerged throughout the history of
Indian Affairs. Although Cherokee Nation v. Georgia involved a
treaty, later decisions have found that the trust relationship is
created not only by treaty but also by other methods of Federal
recognition such as statutes, agreements, and Executive orders.'^*'

The trust relationship, like the Bill of Rights in the Constitution,
cannot be defined with precision in all respects. It is an evolving,
dynamic doctirine which has been expanded over the years as changing
times have brought changing issues.^^ Nevertheless, the trust relation-
ship is a mature doctrine about which several generalizations can
fairly be made.

Indian trust title to land is one important manifestation of the trust
relationship. Title to land in Indian country is held by the United
States in trust for the tribe. Trust land is not subject to taxation,
and individual Indians on trust land are free of State taxes.^^ Trust
lands, and their resources, must be managed for the sole benefit of
the tribe so that they will be preserved.-^ In some instances, land is
held in trust by the United States for individual Indians.^* Some
tribal funds are also held in trust and, in some cases, funds are held
in trust for individual Indians.-^

Land held in trust for Indian tribes or individuals must be carefully
distinguished from the so-called "public lands," such as those admin-
istered by the National Park Service, the Bureau of Land Manage-
ment, and the Forest Service. Public lands are administered for the

"See, e.g., United States v. Mason, 412 U.S. 391, 397 (1973); Seminole Nation v.
Vfiited States, 316 U.S. 286, 296-97 (1942).

" See, e.g., Morton v. Mancari, 417 U.S. 535, 540, 552 (1974) ; Vtiited States v. Sandoval,
231 U.S. 228, 239 (1913) ; Cherokee Nation v. Southern Kan. Ry., 135 U.S. 641, 654 (1890).
=" Chambers. .Tndlcial Enforeement of the Federal Trust Responsibility to Indians, 27
Stan. L. Rev. 1213, 1214-15 (1975) (hereinafter cited as "Chambers").
^ Chambers, supra note 20, pp. 1230-38.

22 See. e.g.. McGla?whan v. State Tax Comm'n, 411 U.S. 164 (1073) ; Warren Trading
PoKt V. State To.r Comm'n, 3S0 U.S. 685 (1965) ; Israel & Smithson. Indian Taxation,
Trih."l Soverplsnty find Eponomio Bevelonment, 49 N. Dak. L. Rev 269 (1973).

23 See generally. Chambers, supra note 20.
^ 25 U.S.C. § 348.

2^ See, e.g., Cohen, supra note 3, pp. 97, 105-07, 113.

105

piiblic-at-large. Different rules often apply for Indian trust lands
which are held, and administered solely for, the affected Indians.^'^

The scope of the ti'ust responsibility extends beyond specific real or
personal property which is held in trust. The United States has tlie
obligation to provide related services, and to take other appropriate
actions necessary to protect tribal self-government,-^ The doctrine
may also include a duty to provide adequate social services to In-
dians,^* These conclusions flow from the basic notion that the tiust
responsibility is a genei-al obligation which is not limited to specific
provisions in treaties. Executive orders, or statutes; once the trust
relationship has been acknowledged, administrative action is gov-
erned by the same higli duty which is imposed on a private trustee.-*

The tribes have recourse in the courts if the trust responsibility is
breached. For compensable claims arising before 1946, tribes are per-
mitted to sue for money damages in the Indian Claims Conmiission.-"
For claims arising after that date, the proper court is the U.S. Court
of Claims.^^ Many successful suits have been brought for loss of land
and for mismanagement of timber, water, and mineral resources.

In addition, although the trust responsibility cannot be enforced in
court against Congress itself, executi\e officials are subject to suits
for injunctive and declaratory relief for breach of the trust duty.^^
A leading example is Pyramid Lake Paiute Tribe v. Morton^ 354
F. Supp. 252. (D.D.C. 1972), where a Federal district court enjoined
the Department of Interior from diverting water to a Federal project
which reduced the water quality of Pyramid Lake in Xevada. Pyramid
Lake is located on a doAvnstream Indian reservation. The court held
that the Government's trust responsibility to the tribe was violated by
the upstream diversion, even though the divei'sion was not on the
reservation. A leading writer on the trust relationship has emphasized
the importance of this case in the development of the trust relation-
ship :

The case, therefore, imposes a duty of loyalty on Federal officials, and sug-
gests that when actions or projects of Federal agencies conflict with the trust
responsibility to Indians, the non-Indian Federal activity should be operated so
as to avoid interference with Indian trust property."'

These principles clarify the crucial distinction between Congress and
executive agencies in the administration of the trust responsibility. Al-
though Congress is not subject to suit for violation of the trust respon-
sibility, administrative officials are directly accountable to the tribes
through court actions. Administrative agencies operate only pursuant
to delegations of authority ^rom Congress. Basic administrative Jaw
principles dictate that administrative officials are subject to judicial
review for most situations in which they exceed their delegated au-
thority.3* Accordingly. Indian tribes and individuals will often have

2« Cohen, supra note 3, p. 287. 289. A good example of the distinction is the Public Land
Review Commission, which filed its report to Conpress on the "public lands" in 1970
Indian lands were expressly exempted from that study of the public lands. See 43 U.S.C.
§ 1400.

^ Chambers, supra note 20, pp. 1217-20, 1236. 1246-48.

28 Chambers, supra note 20, pp. 1243-4.5. See also AIPRC final report, chapter 4 below

^Seminole Nation v. United States, 316 U.S. 286 (1942) ; Manchester Band of Porno In-
dians V. United States, 363 F. Supp. 1238 (N. D. Cal. 1973).

3" 2.5 U.S.C. § 70.

=128 U.S.C. § 150.5.

^ See generally. Chambers, supra note 20.

^ Chambers, supra note 20, p. 1234.

^5 U.S.C. §§ 701-06.

92-185—77— — 8

106

recourse against the Department of the Interior, or anj' other agency
which violates the trust responsibility.

Many basic aspects of the trust obligation extend to an individual
Indian wherever he or she may bo. The duty to protect his tribal gov-
ernment, the duty to protect his trust resources, and the duty to ac-
knowledge his tribal identity continue undiminished even though the
individual Indian may have left the reservation.

The research of this Connnission shows that the Bureau of Indian
Affairs, the primary agent of Congress in the administration of the
trust responsibility, has used the trust doctrine as a means to develop
a paternalistic control over the day-to-day affairs of Indian tribes and
individuals."^ The trust responsibility calls for no such course of con-
duct. Clearly expressed congressional legislation calls for self-deter-
mination and self-government by Indian tribes.^^ Federal-Indian trust
law, as expressed both by Congress and the courts, calls for Federal
protection, not Federal domination.

Plenary Power: Coxgressioxal Authority Omsr Indian Affairs

The Constitution grants Congress broad power over Indian affairs.
The scope of this power is extraordinary, and is perhaps equaled only
by the power of the Federal Government over international relations.
Congress' authority in Indian affairs is commonly referred to as
"plenary," which means absolute or total.

Indians are expressly mentioned twice in the Constitution. "Indians
not taxed" are excluded from the count for determining representa-
tives to Congress.'" Far more importantly, Congress is expressly given
power to "regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes." ^^ Congress has ratified
many treaties with Indians; thus the treatymaking power and the
power to spend money for the "general Welfare of the United States"
have also been used to support Congress' authority over Indian
affairs.^®

The Supreme Court, relying primarily on the commerce clause and
the treatymaking power, has recognized that Congress under the Con-
stitution has exclusive poAver over Indian affairs.^"

The plenary power over Indian affairs is not limited to federally
recognized tribes, but rather extends to "all dependent Indian com-
munities within its borders." ^^ There are several instances in which
the trust relationship has been terminated but later restored by Con-
gress.^- The trust relationship may remain in effect, especially in areas
relating to land, even though the Bureau of Indian Affairs has failed
to designate a tribe as federally recognized.^^ Thus Congress' power

33 See, e.g., Report of Task Force II, pp. 13-17.

39 Report of Task Force IX (vol. 1), p. 75. See also Bryan v. Itasca Countti n «?

96 S. Ct. 2102, 2111 n. 14 (1076). y • »««o« uoMwri/, — u.Ss. — ,

"'^ U.S Constitution, amendment XIV, sec. 2.
35 U.S. Constitution, art. I, sec. 8, clause 3.

3' U.S. Constitution, art. II. sec. 2, clause 2 (Treaty Power); art I sec ,S cl-insiP 1
(GenpralWelfare).Seegenerally, Cohen, supra note. S, pp. 89-90 ' ' ^^^"^^ ^

*» Mcdlanahan v. State Tax Comm'n, 411 U.S. 164, 172 n 7 (IQlii)
" ^«**ed States v. Sandoval, 321 U.S. 28, 46 (1913) ; U.S. v. Ramsey, 271 U.S. 467, 471

« See, e.g., the discussion In Conley v. Ballinger, 216 U.S. 84. 90 (1910)

*3 See, e.g.. .Joint Tribal Council of the Passamaquoddv Tribe v. ^Morion H-'S F 2d ^70
(1st cir. 1975) ; cf. Crain v. First National Bank, 324 F. 2d 532 (9th cir 1963) "

107

readies all Indian tribes in the T'nited States, including terminated
and "nofederally reco<inized" tribes; the question is whether, and
to what extent. Congress has chosen to exercise that power in regard
to a given tribe. The best recent example of a full congressional re-
sumption of the Federal-tribal relationship is the Menominee Restora-
tion Act of 1973, where Congress restored the terminated Menominee
Tribe by exercising its plenary power over Indian aliairs.'**

"Wliile Congress' plenary power over Indian a Hairs is extensive,^^
there are limits on the power. "When tribal or individual property
rights are taken away, the tribe or individual is entitled to be com-
pensated in cash for the loss.^'' In addition. Congress' plenary power
over Indians is subject to other constitutional limitations upon con-
gressional power, such as the Bill of Eights.'*"

It is Congress, not the Bureau of Indian Affairs or any other ad-
ministrative agency, which possesses this plenary power. Those agen-
cies hold only such powers over Indians as Congress has granted to
them.'^ Courts, therefore, have struck down administrative action over
Indians because the action was not within the scope of authority dele-
gated by Congress to the agency, even though Congress itself clearly
had the power to take the action in question.*^

Congressional action in furtherance of its plenary power over In-
dians is not violative of the Equal Protection and Due Process Clauses,
which prohibit discrimination on the basis of race. The trust relation-
ship, jurisdictional j)atterns in Indian country, and Federal programs
for Indians are not unconstitutional "reverse discrimination" because
they result in a special status for Indians. The reason for this is that;
the United States' relationship with Indian tribes is political, not
racial, in nature ; plenary power is intergovernmental in character and
exists between the United States and the tribes in their capacities as
governments. The Supreme Court, in rejecting arguments based upon
the Equal Protection and Due Process Clauses, has upheld a Federal
hiring preference for Indians; affirmed the jurisdiction of tribal
courts over tribal members; and upheld reservation tax immunity
from State law.^°

Powers which spring from concepts of natural right and justice are
premised on a measure of consent by the governed. The history of Fed-
eral dealings with the Indian people has much too often been rule
based on power, rather than on consent of the governed.^^

Defixitiox of Indian : Tribal Membership

AVho is an Indian? Early judicial decisions held that an Indian is a
person who is ethnically or legally part of his or her tribe.^- Recogni-

"r.S.C. S 903.

*-' In all of the long history of Congress' dealines with Indians, there is only one instance
In which congressional power has been overturned by the courts. Utnted f^tate'x v. Clevelntid,
503 F. 2d 1067 f9th cir. 1974K Compare L'nited States v. Anteleope. 44 USLW 4361
(April. 1077). rerersing 523 F. 2d 400 (9th cir. 1975).

46 spp^ p „ United States v. Creek ^'ation, 295 U.S. 103 (1935).

*' Cohen, supra note 3. p. 91.

^^ Cohen, supra note 3. p. 100.

<' See. e.g.. JRniz v. Morton. 415 F.S. 199 (1973).

^Morton V. Mancnri. 417 U.S. 535 (1974) : Fisher v. District Court. 424 U.S 38'' (1976) •
Moe T. Confederated Snlish rf Kootenai Trihes. U.S. . 96 S Ct 1634 (1970) '

zi See, P.O... Love Wolf v. Hitchcock, 187 U.S. 553, 565-66 (1903).

»- Cohen, supra note 3, p. 2.

108

tion by the tribe, once given, was not easily lost.^^ This Commission has
found, for example, that off-reservation Indian people identify them-
selves in the context of their tribal affiliation.^* The tribe's power to
determine its own membersliip, that is, individual identity as an In-
dian, has been repeatedly recognized by the courts ; the power derives
from the tribe's status as a distinct political party.^^ The tribe's power
over its own membership is the starting point for any discussion of
Indian identity.

But Congress can, and has, passed laws to define Indian status for
some Federal purposes. Although no statute has laid down a general
definition of "Indian," ^^ Congress has sometimes set standards to
define Indian status for special purposes. Older legislation used vari-
ous degrees of Indian blood for different tribes,^^ but those standards
were often arbitrary and conflicted with tribal provisions.^^ Recent
congressional legislation, however, has avoided these conflicts and has
given recognition to the primary tribal interest in membership by
defining "Indian" as a member of an Indian tribe.^®

In the area of eligibility for Federal services, the Bureau of Indian
Affairs and other Federal agencies must work witliin definitions given
by Congress. For example, the Indian Reorganization Act of 1934
contains a definition of "Indian" for the implementation of that Act.
That definition includes all members of federally recognized Indian
tribes regardless of degree of Indian blood.

Despite that statutory definition, the Bureau of Indian Affairs and
the Indian Health Service for many yoRYs defined "Indian" for pur-
poses of employment preference as any pei'son who was a member of a
federally recognized Indian ti'ibe and one-fourth or more Indian
blood. This administrative criterion was challenged in court as being
contrary to the definition in the IRA. The Government conceded in a
final judgment that the statutory definition in the IRA controlled.'''^
Similarly, a lerent Supreme Court case found that the BIA had acted
improperly by denying welfare services to Indians living "near" reser-
vations while providing the benefits to those living "on" reservations.®^
Again, the reasoning was that the BIA was acting contrary to con-
gressional direction in denying benefits to tribal members.

In most circumstances, then, a person is an Indian if that person's
tribe recognizes him or her as an Indian. That means that the tribe.
as a political institution, has primary responsibility to determine tribal
membership for purposes of voting in tribal elections, property dis-
tributions, exercise of treaty rights, Indian preference, and other rights

^ E.er., K. Llewellyn and B. Hoebel, The Cheyenne Way : Conflict and Case Law in Primi-
tive Jurisprudence, 9-13 (1973).

^ Report of Task Force VIIL P. 12.

^''Hea, e.g., Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N.E. 734 (1927) ;
Delnwnre Indians v. Cherokee Nation, 193 U.S. 127 (1904) ; Cherokee Intermarriage Canes,
203 U.S. 76 (1906).

•'"''' Cohen, supra note 3, p. 4.

'^'^ See, e.sr.. Cohen, supra, note 3. p. 5.

M See memorandum to Ernest Stevens from Jerry Straus, Wilkinson. Cragun & Barker
on enrollment re(iulrements of federally recognized tribes, Jan. 25, 1977 (memorandum In
Commission files).

''•■'See. e.sr. 25 U.S.C. S450b(a) (Indian Self-Determination and Education Assistance
Act of 1975) ; 25 U.S.C. § 479 (Indian Reorganization Act) ; 25 U.S.C. § 1452 fb) (Indian
Financing Act of 1974).

<"> Whiting v. United States, civ. No. 75-3007 (D.S.D. 1975). For a more detailed discus-
sion of this issue, see Report of Task Force IX (vol. 1), p. 110.

«^Ruiz v. Morton, 415 U.S. 199 (1974).

109

arising from tribal membership.^^ Many tribal provisions call for
one-fourth deo^ree of blood of the particular tribe but tribal pro-
visions vary widely.^^ A .few tribes require as much as one-half degree
of tribal blood and a small number permit any descendant of a tribal
member to be enrolled, regardless of the blood quantum.*'* For tribal
purposes, that tribal definition is final. Absent express congressional
action, the Bureau of Indian Affairs has no power to alter tribal
determinations.®^

Indiax Treaties: Cornerstones of Indian Law

Indian treaties, which have played such a central role in the develop-
ment of Indian law and policy, were negotiated during the 18th and
19th centuries. These legally binding agi-eements were made between
governments, the United States on the one hand and the tribes on
the other. The courts have treated the parties as substantial equals:
both sides agreed to compromises, with the tribes giving up claims to
vast areas of land. Treaties were negotiated in the field by members
of the executive branch of the Government, and went into effect after
being ratified by the Senate. Unless abrogated (i.p., breached or
broken) by subsequent Federal statute in whole or in part, treaties re-
main fully in effect.

Indian' treaties are superior to all State laws and are entitled to
equal dia:nity with any Federal statute. They are the "supreme law
of the land." ««

Treatymaking continued until 1871 when Congress passed legisla-
tion which brought future treatymaking with Indian tribes to an
end.^' After 1871, no further treaties were negotiated but the United
States continued to deal with Indian tribes in essentially the same
manner through "agreements'- which are ratified by both the House
and the Senate, Executive orders, and statutes.®^

Treaties, while an extremely important part of Federal policy
toward Indians, were by no means the only method used to deal w4th
Indian tribes. The Trade and Intercourse Acts, which regulated trade
with the tribes and controlled the liquor traffic, were another major
means by which Congress dealt with the tribes.''^ Treaties, however, de-
scjve special mention because of the important legal rights which they
establisli, because of their importance in the development of Indian
law. and because of their great significance to American Indians today.

The courts have always interpreted treaties in a manner favorable
to the tribes. The historical realities of brutal and inequitable rela-
tions with Indians, along with the serious language problems exist-
ing during the treaty negotiations, led to the development of three
basic canons of treaty construction :

« For discussion of the different policy questions raised by Indian identity for purposes
of the preference statutes, see Report of Task Force IX (vol. 1), pp. 185-219.

<^ See note 58, supra.

'"Id.

«5 Cohen, supra note 3. p. 114. , , ,

'"'T'nitPd States Constitution, art. VI, sec. 2. This provision applies with resard to
Indian treaties. Worcester v. Georgia, .31 U.S. (6 Pet.) 515, 559 (1832). Treaties are
superior to State laws, including State constitutions, Hauenstein v. Lynham, 100 U.S. 483,
490 (1880). and are accorded equal dignity with Federal statutes. See, e.g., Edye v. Robert-
goii. 112 U.S. 580, 599 (1884) ; Reid v. Covert, 354 U.S. 1, 17 (1957).

^" 25 U.S.C. sec. 71.

•^•^ See, 'e.s..'Ant'oine v. Washivoton, 420 F.S 194 (1975).

■"^ Francis Paul Prucha, American Indian Policy In the Formatiye Tears, pp. 1-4 (1962)
(Harvard Univ. Press).

110

1. Ambiguous expressions in treaties must be resolved in favor
of the Indians ; ^°

2. Treaties must be interpreted as the Indians themselves would
have foreseen and understood them ; ' ^

3. Treaties must be liberally construed in favor of the Indians."
By using these canons, the courts have given expansive readings of

Indian treaties. For example, the word "trust," or similar language,
was never used in the treaties, but the courts have implied the existence
of a trust relationship in treaties.'^^ The treaty phrase "to be held as
Indian lands are held" has been interpreted to include provision for
hunting and fishing rights.'^* Treaty provisions reserving the right to
fish at "usual and accustomed places" have been held to reserve ap-
propriate easement rights over non-Indian land to gain access to off-
reservation sites,^^^ The Supreme Court held recently that general
provisions for the protection of the Navajo Tribe served to bar the
operation of State taxes upon Indians in Indian country."

The Winters doctrine, providing that the reservation of sufficient
waters for tribal use is implicit in Indian treaties, has been developed
and consistently affirmed by the Supreme Court. Under that doctrine^
Indian water rights precede and preempt any other rights established
by State law.^^ The fishing rights decisions in the Northwest provide
another example of how the canons of construction have protected
basic treaty rights from encroachment by the States.'^''

One of the most significant elements of Indian treaty law is that
Indian treaties were iiot a grant of rights from the United States to
the tribes, but rather a grant from the tril)es to the United States.
Thus, all sovereign powers of tribes are retained unless expressly
granted away by the tribe in a treaty or expressly taken away from the
tribe by Federal statute.'^

Indian treaties, then, are not to be read in a neutral way. The courts
have found that the historical circumstances surrounding treaty nego-
tiations require rules of construction which cut in favor of the tribes,

Indian treaties, like international treaties, can be abrogated by Con-
gress.^^ Questions of Avhether Congress actually has intended to abro-
gate treaties have arisen frequently. The issue often comes up when
administrative officials argiie that general Federal statutes, which do
not mention Indian tribes, regulate hunting and fishing rights, water
rights, mineral rights, jurisdiction, and rights to the retention of lancL
A crucial point is that only Congress has the power to abrogate Indian
treaties or otherwise regulate Indian affairs; the administrative
agency seeking to limit Indian rights must have specific delegated

""> McClanalian v. State Tax Comm'n, 411 U.S. 164, 174 (1973) ; Carpenter v. Show, 2S0
U.S. 36.3, 367 (1930).

'''^Choctaw Nation v. Oklahoma, S97 U.S. 620, 631 (1970) ; United States v. Shoshone
Tribe, 304 U.S. Ill, 116 (1938).

'^Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943) ; Tulee v. Washington,
315 U.S. 681, 684^-85 (1942).

■^3 See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

■^1 See., e.g., Menotninee Tribe v. United States, 391 U.S. 404 (1968).

^1" See, e.g.. United States v. Winans, 198 U.S. 371 (1905).

''^ McClanahan v. State Tax Comm'n, 411 U.S. 164 (1973).

""^Winters v. United States, 207 U.S. 564 (1908) ; Arizona v. California, 373 U.S. 546.
599—600 (1963).

" See, e.g.. United States v. Washington, 525 F. 2d 676 (9th cir. 1975) ; Sohappy v. Smith.
529 F. 2d 570 (9th cir. 1976).

78 United States v. Winans, 198 U.S. 371 (1905) ; Winters v. United States, 207 U S 564
(1908) ; United States v. Santa Fe R.R., 314 U.S. 339 (1942).

w Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

Ill

aiitlioiity from Congress before it can abrogate a treaty or otherwise
diminish Indian rights.

The courts have cut back on administrative action affecting treaty
rights by requiring very explicit directions from Congress to the
agency. Absent such a showing of congressional action, treaty rights
remain intact; treaty rights cannot be abrogated "in a backhanded
way.'' ^° Although the law is not fully consistent in the area, the better
reasoned cases hold that treaty rights cannot be eliminated by admin-
istrative action unless there is a specific congressional statute which
identifies the specific affected Indian treaty rights and which states
that it is the intent of Congress to abrogate such rights.^^ Xo Supreme
Court case in the last 50 years has upheld any asserted abrogation of
an Indian treaty .®^^

The principles discussed above were developed in the context of
Indian treaties; if those principles were limited solely to treaties,
many tribes would not benefit from them because many reservations
were established by Federal action other than treaties. The courts have
recognized, however, that treaties are but one method of dealing
with tribes and that treaty law is generally applicable to agreements,
statutes, and Executive orders dealing with Indians.

The trust relationship, for example, was first applied to the Chero-
kee treaty but has si^ce been applied in numerous nontreaty situa-
tions.^- The rules of treaty construction apply not only to treaties but
also to statutes.^^ Hunting and fishing rights can be established by
methods other than treaty.®* Similarly, thr Supreme Court has ruled
that exclusive tribal jurisdiction can be established b}' agreement or
Executive order, as well as by treaty.®"

Indian treaties, therefore, are an important foundation of all In-
dian law. Most early court cases involved treaty tribes. Policy changed,
however, and the United States began to deal with Indian tribes by
other means, such as Executive orders, agreements, and statutes. When
those nontreaty tribes came into court, the rules of construction gov-
erning treaties were applied.

"While this discussion has focused on treaties as law, any discussion
of treaties would be incomplete without mention of tlieir symbolic and
moral significance to the Indian people. Unlike almost all other docu-
ments in Anglo-American law, treaties are seen as moral statements
which represent the "word of the nation" and the ''sanctity of the pub-
lic faith." ®^ An Indian treaty is "a bulwark against State encroach-
ment * * *. It is a monument to past guilt ; and efforts to change the
law include, in themselves, evidences of continued uneasiness." ®^

i" Menominee Tribe v. United States, 301 U.S. 404. 412 (196S).

5^ Spe. e.g.. United States v. White. 508 F. 2cl 45."^ (Sth cir. 1974) : Wilkinson & Volkman,
Judicial Review of Indian Treaty Abrogation : "As Long as Water Flows, or Grass Grows
Tpon the Earth" — How Long A Time is That?. 6.3 Cal. L. Rev. 601 (197.5).

fi'' In F.P.C. V. Tiiscarora Indian Nation, 362 U.S. 99 (1960) a taking of Indian lands
was upheld by the Court, but the majority opinion squarely held that the lands in question
were "not subject to any treaty." 362 [T.S. at 123.

82 Chambers, supra note 20, pp. 1214-1.5. See, e.g.. United States v. Ahtanum Irrigation
District, 236 F. 2d 321 (9th cir. 1956) and United States v. Walker River Irrigation Dis-
trict. 104 F. 2d 334 (9th cir. 1939).

^ See, e.g., Antoine v. Washington, 420 U.S. 194 (1975).

^ See, e.g., Antoine v. Washington, supra.

^ Perrin v. United States, 232 U.S. 478 (1914) ; Fisher v. District Court, 424 U.S. 382,
96 S. Ct. 943 (1976).

6« United States v. Winans, 198 U.S. 371, 380 (1905) ; Ward v. Race Horse, 163 U.S.
504. 516 (1S96)

^ Monroe Price, Law and the American Indian, p. 294 (1973).

112

This Commission, in hearin;? after hearing, has seen that Ameri-
can Indians rightfully expect that this Nation will continue to abide
bv the solemn promises made in these old laws : The Constitution is
ail old law, too. Thus while treaties can be broken by Congress, such
extreme action must be truly a last resort.^^ As Justice Hugo Black
put it : "Great Nations, like great men. should keep their word.'] «^
Indian treaties are among the very few laws in our society which raise
those kinds of issues.

Jurisdiction: Varying Eights and Responsibilities in
Indian Country

THE importance OF JURISDICTION

"Jurisdiction" sounds like an arcane word for lawyers only. To res-
ervation Indians, it is far more than that. Jurisdiction is a living
reality which has a direct, dramatic effect on their day-to-day lives.

Sovereignty refers to the powers of a government. Jurisdiction, as
used here, refers to the human conduct (subject matter jurisdiction)
and to the geographic area (territorial jurisdiction) over which a gov-
ernment's sovereign powers can be exerted. The question is whether
conduct in Indian country (which usually means all land within res-
ervation boundaries) will be regulated by the legislatures and courts
of the tribes themselves or by the State or Federal Government.

Tribal councils (tribal legislatures) and tribal courts possess orig-
inal jurisdiction within Indian country. As a general rule the States
have no jurisdiction over matters involving Indian tribes or Indian
people in Indian country absent a Federal statute giving them juris-
diction. Accordingly, absent Federal authority to a State, all Indian
reservations within a State are islands where the laws of the State
cannot reach. Those islands are governed by the institutions of the
tribes. To put it another way, the laws of Arizona have no effect for
most purposes in New Mexico or Utah. Absent express Federal legisla-
tion, the laws of Arizona have no effect for most purposes on the
Papago and Navajo reservations. Only Federal legislation can change
that pattern.

For its part, the Federal Government possesses and exercises only
that jurisdiction which the Congress expressly provides for, even
though potentially, its plenary authority is all encompassing.

Jurisdiction is both criminal and civil. Criminal cases involve
wrongs against the public, ranging from disorderly conduct to mur-
der, which become the subject of prosecutions resulting in imprison-
ment or fine. If a legislature has jurisdiction, it can define criminal
conduct in many areas which are especially sensitive to Indians, such
as questions involving hunting and fishing rights. The existence of
jurisdiction will determine whether crimes will be defined by tribal
councils or by State legislatures or Congress. Questions of criminal
jurisdiction will also resolve whether violations of such criminal laws
■will be handled by Indian or non-Indian judges, jurors, prosecutors,
policemen, and jailers.

88 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

^F.P.C. V. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (dissenting opinion).

113

Criminal jurisdiction, then, will determine whetlier crimes in Indian
country are tried in tribal courts by Indians ; in the local State courts
where hostility by non-Indians is often ^reat; or in Federal courts
which are often inconveniently distant from the reservations but
where there is usually less antagonism ajjainst Indians. In some situ-
ations, two governments can have "concurrent" jurisdiction. That is,
it is sometimes possible for a criminal defendant to be tried in either
tribal or State court for alleged criminal conduct. In other situations,
it is possible that a criminal defendant could be subject to the con-
current jurisdiction of either the tribal court or the Federal cx)urt.
In most cases, when two courts have concurrent jurisdiction, the in-
dividual will be tried and punished in the court where the case is first
prosecuted.

Civil, as opposed to criminal, jurisdiction involves private or indi-
vidual disputes such as debts, automobile accidents, and disputes over
leases. Grovernments also pass civil laws in critically important areas
such as child custody, education, zoning, domestic relations, envi-
ronmental planning, and alcoholism. Again, the civil jurisdictional
issue is truly fundamental : whether these important laws affecting
Indian country will be passed by tribal councils or by non-Indian
legislatures. Similarly, the question arises as to which government's
courts have jurisdiction to hear civil cases — tribal courts, State courts,
or Federal courts. As with criminal jurisdiction, in a limited number
of situations, there can be concurrent civil jurisdiction between two
courts.

Jurisdiction to tax has been the subject of continuing litigation and
deserves special mention. The States have sought to increase their
revenues by taxing persons and activities on the reservations. An in-
creasing number of tribes believe that tribal taxation jurisdiction is
essential to the long range economic viability of tribal governments.
The problem is twofold. For most purposes, reservations are immune
from State taxes; individual tribal members and struggling tribal
businesses badly need those exemptions. On the other hand, tribes
themselves have powers to tax persons and activities on the reserva-
tions. Future tribal economic self-sufficiency may well depend upon the
continued existence of that power.

The discussion which follows provides a general outline of the jur-
isdictional pattern in Indian country. A more detailed analysis of
each of these areas appears in chapter 5 of this report.

INDIAN COUNTRY

Jurisdiction is often a question of the specific geographic area which
is covered by the sovereign powers of a given government. Usually
Indian jurisdiction cases involve disputes within reservation bounda-
ries. The technical term "Indian country," however, is properly used
to determine the geographic extent of tribal jurisdiction, and the geo-
graphic limits on State jurisdiction. The term "Indian country" is
derived from 18 U.S.C., sec. 1151, which is a Federal criminal juris-
diction statute. That statutory definition of Indian country applies as
well to questions of civil jurisdiction.®"

^"DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2 (1975).

114

The Indian country statute has three separate parts. First, Indian
country is defined as all lands within the limits of any Federal Indian
reservation, "not withstanding the issuance of any patent." Land
within reservation boundaries which has been opened to settlernent by
non-Indians is Indian country unless Congress intended to diminish
the reservation.'-^^ Thus, Indian country includes all land within the
reservation boundaries, including "checkerboarded" land — that is,
those areas within Indian reservations where non-Indian land is inter-
spersed with Indian land. Second, Indian country includes all de-
pendent Indian communities within the borders of the United States.^-
Third, Indian country includes all Indian trust allotments, even
though they may not be within the boundaries of a reservation.

Normally, unless expressly limited by Federal legislation, Indian
tribes have criminal and civil jurisdiction in Indian country. On the
other hand, absent express Federal legislation. States do not have ju-
risdiction within Indian country. The reverse is true outside of Indian
country : absent express Federal law to the contrary, Indians leaving
Indian country have generally been subject to State law otherwise
a,pplicable to ail citizens of the State.^^

ORIGINAL EXCLUSIVE TRIBAL JURISDICTION

Congress, acting pursuant to its plenary power, has passed a number
of laws altering original exclusive tribal jurisdiction. Exclusive tribal
jurisdiction, however, existed before such laws were passed. It is best,
therefore, to examine the nature of exclusive tribal jurisdiction and
then to discuss the ways in which Congress has limited that
jurisdiction.

Two cases serve to show the nature of the exclusive tribal criminal
and civil jurisdiction which exists in the absence of limiting Federal
legislation. In Ex parte Croio Dog^ 109 U.S. 556 (1883), the Supreme
Court held that a Federal court had no jurisdiction to try a Sioux
Indian for the murder of a fellow Indian which occurred in Indian
country. In the absence of any Federal legislation to the contrary,
therefore, only the Indian tribe has jurisdiction to punish the murder
of an Indian by an Indian on the reservation. The same principle
applies to all other crimes in Indian country ; unless Congress so pro-
vides, there is no State jurisdiction and there is no Federal jurisdiction.

The same principles apply in civil situations. Schantz v. White
Lightning^ 231 N.W. 2d 812 (N.D. 1975), involved an automobile
accident on the Standing Bock Sioux Indian Reservation. The
allegedly negligent defendant was an Indian. A Federal court had
earlier ruled that the action could not be brought in Federal court
because there was no express Federal statute granting jurisdiction. The
North Dakota Supreme Court held that the State courts had no juris-
diction over the subject matter. Only the tribal court had jurisdiction
to hear the case.

"1 Kee, p.ff.. Mnttz v. Arnett, 412 U.S. 481 (1973) ; Decoteau v. District County Court,
420 U.S. 425 (1975).

92 Uniteri states v. fJancloval, 231 U.S. 228 (1913).

^ Mescalero Apache Tribe \. Jones, 4^11 U.S. 145 (1973).

115

FEDERAL STATUTES ALTERING JURISDICTION IN INDIAN COUNTRY

Thus, in the absence of express Federal statutes altering the jurisdic-
tional pattern, Indian reservations are geographic areas, governed by
tribal law, where State and Federal jurisdiction do not reach. That
jurisdictional pattern, however, is subject to Congress' plenary power.
On several occasions, Congress has exerted its plenary power and
altered the jurisdictional scheme in Indian country.

Angered by the result in the Croio Dog case, Congress in 1885 passed
the Major Crimes Act, 18 U.S.C. sec. 1153. This Act extended Federal
jurisdiction over seven enumerated crimes, which have now been ex-
panded to 14. Under the Major Crimes Act, therefore. Federal courts
now have jurisdiction over any Indian in Indian country who commits
one of the specified crimes against the person or property of another
Indian or any other person.^* It is unclear whether the Major Crimes
Act eliminates tribal jurisdiction entirely or whether it provides for
concurrent Federal and tribal jurisdiction.''^

Congress has also passed the General Crimes Act, 18 U.S.C. sec. 1152,
which provides for Federal jurisdiction over crimes, other than the
enumerated major crimes, by both Indians and non-Indians in Indian
country. The Act provides that Federal laws applicable to Federal
enclaves will be effective in Indian country. Exceptions to the Act are
crimes committed by one Indian against the person or property of
another Indian ; Indians punished by the local law of the tribe ; and
areas preserved to tribes by treaty as being within their explicit juris-
diction. The Act establishes Federal jurisdiction but does not eliminate
concurrent tribal jurisdiction.^^

The General Crimes Act has been interpreted to permit the indirect
enforcement of State law in Indian country. Althousfh the States them-
selves cannot enforce such violations of State law, Federal authorities
may bring such a prosecution in Federal court, basing the prosecution
upon a violation of State law. This result was reached in Williams v.
United States. 327 U.S. 711 (1946), when the Supreme Court reasoned
that the General Crimes Act, in extending Federal enclave laws to
Indian country, also extended the Assimilative Crimes Act, 18 U.S.C.
sec. 13. The Assimilative Crimes Act, in turn provides that State law
is applicable within Federal enclaves if the act in question is not other-
Avise punishable by any Federal statute.®' The application of the As-
similative Crimes Act in Indian countiy is subject to all the limitations
in the General Crimes Act.

The aboA'e Acts, then, gave the Federal courts authority to hear
various criminal cases arising in Indian country. Under those Acts,
the States acquired no jurisdiction in Indian country. Although some

■•^ The .iurisdietion of tribal rniirti? has been limited in one relevant respect which does
not involve Federal statutes. The Supreme Court has held that State courts have jurisdic-
tion over crimes by a non-Indian defendant aarainst a non-Indian victim in Indian countrv
^ee, e.g.. Vnited mates v. McBrntneii, 104 U.S. fi21 (1881) ; Draper v. United States l/)4
U.S. 240 (1896) ; United States ex rel. Ray v. Martin, 326 U.S. 496 (1946) ^^f^its, wi

fs See the discussion in Report of Task Force IV, pp. 36-.39

»« Report of Task Force IV, p. 40 ; AIPRC Final Report, ch. 5, below.

'•' This issue is discussed in more detail in Report ot Task Force IV, pp. 40-42 and ch. 5,

116

State laws indirectly reach to Indian country, the States cannot brin^^
such prosecutions in their own courts. If such prosecutions based on
State law are to be brought, they must be brought in Federal court by
Federal prosecutors.

The most fundamental realignment of jurisdictional patterns in
Indian country occurred during the termination era. In 1954, Congress
for the first time passed a general statute extending the jurisdiction
of State courts to Indian country through the passage of Public Law
280. This statute gave the States jurisdiction over some criminal
matters, 18 U.S.C. sec. 1162, and some civil matters, 28 U.S.C. sec.
1360, in Indian country.

Public Law 280 provides for State assumption of jurisdiction in
Indian country in tliree separate Avays. First, assumption of jurisdic-
tion was mandatory in five, now six, States.^^ Second, in those States
with State constitutional disclaimers barring jurisdiction in Indian
country, assumption could be accomplished by appropriate State
action to override the constitutional disclaimer.'-'" Third, in all other
States, assumption of jurisdiction was originally at the option of the
State by affirmative legislative enactment.^"" Since 1968, no State can
assume Public Law 280 jurisdiction without the consent of the tribe
in question; 25 U.S.C. sec. 1321, 1322. In addition, there is now a
statutory provision for retrocession, which permits the States to re-
linquish jurisdiction which it might have asserted under Public Law
280; 25 U.S.C. sec. 1323. Public Law 280 expressly excludes any State
jurisdiction relating to the alienation or taxing of trust property, or
to treaty recognized hunting, fishing, or trapping rights.

The full extent of State legislative jurisdiction under Public Law
280 was unclear for years. A major area of confusion has now been
resolved by the Supreme Court in Bryan v. Itasca County^ 96 S. Ct.
2102 (1976), where the Court held that the State was without au-
thority to levy a personal property tax on the reservation. The Court
found that Public Law 280 did not extend general civil regulatory
powers, including taxation, into Indian country. Kather, Public Law
280 relates only to the application of State criminal and civil law in
court proceedings. In the civil area. Public Law 280 provides State
courts as a forum to resolve private disputes, but does not permit the
legislature generally to regulate conduct in Indian country.

Many questions in regard to Public Law 280 remain unanswered. ^*'^
It permits different results from State to State and, in some cases,
from reservation to reservation within States. This complexity is
particularly apparent in five States — Idaho, Mississippi, Nevada,
New Mexico, and Washington — where only partial State subject
matter jurisdiction has been asserted. The present statutory frame-
work, which permits retrocession and requires tribal consent, seems
likely to result in a shrinkage of State jurisdiction.

8^ The five original States are California, Minnesota, Nebraska. Oreson. and Wisconsin,
althoush specified reservations within those States were not made subject to Pulblie Law
280. Alaska vras added to this mandatory group at the time of its statehood.

w These States are Arizona, Montana, New Mexico, North Dakota, South Dakota, Utah,
and Washington. For the nature of the action taken concerning Public Law 280 in these
States, «ee the Report of Task Force IV, pp. 14-19.

100 For the States which have assumed Public Law 280 jurisdiction, see Report of Task
Force IV, pp. 8-9.

101 /See generally, Report of Task Force IV, pp. 4-33, and ch. 5, below.

117

The final major jurisdictional Act is the Indian Civil Eights Act
of 1068. 25 U.8.C. sec. 1301-03. That Act, which was bitterly opposed
by most tribes, applied to tribes statutory standards that are similar,
but not identical, to those constitutional requirements contained in
tlie Bill of Rights and the Fourteenth Amendment."^ The Act ex-
pressly gives jurisdiction to the Federal district courts to proceed by
habeas corpus and has been construed to permit declaratory and
injunctive relief.^"^ The Indian Civil Rights Act does not in any way
extend jurisdiction to State courts, but, in fact, specifically authorized
States to retrocede jurisdiction previously acquired under Public
Law 280.

Tliere have been other Federal statutes, usually not mentioning
Indians expressly, which have been construed to create jurisdictional
inroads into Indian country. The effect of these Acts has been referred
to as "creeping jurisdiction'", because they have had a clear impact
on the reservations even though they were not expressly directed at
affecting the Federal-State-tribal jurisdictional relationship."* Ex-
amples of general Federal legislation which may have full or partial
effect in Indian country are the Administrative Procedure Act, in-
cluding the Freedom of Information Act; Federal condemnation
statutes, often administered by the Army Corps of Engineers; the
Xational Envii-onmental Polic}' Act: the Clean Air Act, which dele-
gates some authority to States; the Occupational Safety and Health
Act. which also delegates some authority to the States; and the Na-
tional Labor Relations Act. The question of whether all or some of
these Acts in fact apply in Indian country is not fully resolved, but
some low^er courts have applied them to Indian country; the conse-
quence is to allow some increased State and Federal jurisdiction on
the reservations.

THE RECENT CASES

During the last 20 years the courts have clarified many of the
basic issues concerning tribal and State jurisdiction in Indian coun-
try. Tribal jurisdiction over individual Indians and Indian-owned
land in Indian country is well-established with one major exception:
the courts have not yet ruled whether tribes have concurrent jurisdic-
tion with the States when Public Law 280 applies. Tribal jurisdiction
over non-Indian individuals "^ and land ^"'^ has been upheld by opin-
ions in the lower courts and appears to be supported bv the Supreme
Court opinion in Uiufed States v. Mazurie, 419 U.S. 544' (1975)."^ The
full extent of tribal jurisdiction over non-Indians, however, has not
been comprehensively treated by the United States Supreme Court.

The United States Supreme Court, construing congressional stat-
utes, has remained a bulwark against asserted State jurisdiction in

'0- Report of Task Force IV. pp. 12n-4ft.

103 xpp. e.g.. JohVftoti V. Loicer Ehrhn Tribal Communitv. 484 F. 2d 209 {9th cir. 1973) ;
Luroii V. Rosebud Sioux Tribe of South Dakota, 455 F. 2d 698 (8th cir. 1972).

T^'^ For a review of this matter. «pe Report of Task Force IV, pp. 47—54, and Task Force
IX. pp. 7(5-94.

^"■^.?ep, e.g., Oliphant v. Schlle. .^44 F. 2d, 1007 (9th cir. 1976), cert, granted; Confeder-
afeil Trihen of the ColviUe Indian Reservation v. Washington, 412 F. Supp. 651 (E.D.
Wash. 1976).

i"« Siee, e.g.. Barta v. Onlala SioiiT Tribe. 259 F. 2d 553 (8th cir. 1958) ; United States v.
Blrrkfeet Tribal Court, 244 F. Supp. 494 (D. Mont. 1965).

^'^" Tlie Ma~inie opinion is discussed above in relation to tribal sovereignty.

118

Indian country. As long ago as 1832, the Court rejected the premise
that Georgia law could apply on the Cherokee Keservation. The em-
phasis on tribal government, and freedom from State jurisdiction in
the absence of express Federal authority, has continued down to the
present day.

The recent cases have consistently struck down attempts by the
States to extend their jurisdiction to Indian country. In Williams v.
Lee, 358 U.S. 217 (1959) , the Court held that the Navajo Tribal Court
had exclusive subject matter jurisdiction over an action for debt by
a non-Indian against an Indian : "The cases in this Court have con-
sistently guarded the authority of Indian governments over their res-
ervations." In Warren Trading Post v. Arizona Tax Commission,
380 U.S. 685 (1965), the Court held that a State gross proceeds tax
did not apply to a non-Indian trader on the reservation because of
the general Federal regulatory scheme over traders : "Congress has,
since the creation of the Navajo Reservation nearly a century ago,
left the Indians on it largely free to run the reservation and its affairs
without state control " * *.*' The leading case, McCIanahan v. Arizona
Tax Commission, 411 U.S. 164 (1973), struck down a State attempt
to levy a personal income tax on a reservation Indian : the creation of
the Navajo reservation "was meant to establish the lands as within
the exclusive sovereignty of the Navajos under general Federal super-
vision." Fisher v. District Court, 424IT.S. 382 (1976) held that Mon-
tana State courts did not have jurisdiction over an adoption case
involving reservation Indians because "state-court jurisdiction plainly
would interfere with the powers of self-government conferred upon
the Northern Cheyenne Tribe and exercised through the tribal court."

The Supreme Court has been almost unyielding in rejecting State
jurisdiction in Indian country, absent express congressional grant to
the States, even when non-Indians are involved. State jurisdiction
over non-Indians will be struck down if "tlie State action infringed on
the right of reservation Indians to make their own laws and be ruled
by them." ^°® The only case in which the Supreme Court has used this
"infringement" test from Williams v. Lee to permit any kind of State
jurisdiction in Indian country is Moe v. Confederated Salish and
'Kootenai Trihes, 96 S. Ct. 1634 (1976). In Moe, Wiq Court prohibited
any taxation of Indians, but permitted the State to require Indian
merchants to collect a tax assessed against non-Indians purchasings
cigarettes from the Indian merchant. A line of older cases has per-
mitted the State covirts to take jurisdiction over crimes in Indian coun-
try in the limited number of situations in which both the criminal
defendant and the victim are non-Indians.^°^

The Supreme Court has been even more protective of tribal self-
government when State? have asserted jurisdiction over Indians in
Indian country. The Court looks first to determine whether Federal
preemption has occurred. The most common method of Federal pre-
emption occurs when an Indian reservation is established ; once that
happens Congress is found to have excluded State power over the
reservation by "preempting the field." Once Federal preemption is
found to exist, the Court will look to see if there is an express statute

^0% Williams V. Lee, 358 U.S. 217 (19.j9).
1*9 See footnote 94 ; supra.

119

explicitly giving the State jurisdiction over the reservation. If there
is no such statute, any asserted State jurisdiction over the reservation
must be analyzed against the "backdrop'* of tribal sovereignty."° The
many recent opinions make it abundantly evident that the Court will
view any attempted State incursion in the context of a vigorous and
far-reaching notion of tribal sovereignty. The leading example is
Bryan v. Itmca County^ 96 S. Ct. '110-2 (1976), where the Court found
that even "Public Law 280" does not extend general State tax and
regulatory law into Indian country.

It is instructive to place the immunity of Indian tribes from State
jurisdiction in historical perspective. Since WiUiams v. Lee was handed
down in 1958, the Supreme Court has permitted State jurisdiction over
non-Indians in Indian country only once — and that was in the very
limited context of il/oe, discussed above. Since that period, the Court
has never upheld any asserted State jurisdiction over Indians in In-
dian country. Indeed, in its long history the Supreme Court has never,
absent express congressional authority, permitted any State to as-
sume any jurisdiction whatsoever over Indians in Indian countrj-.

Synthesis : Indian Tribes and People in America's Legal and
Political System

Political science texts commonly state that there are four levels of
government in the United States : the Federal Government, the State
governments, the county governments, and local governments. In
States where Indian country is located, that notion is incorrect and
confusing. In fact, in those States there are two separate chains of
government: the Federal Government and Indian tribes, on the one
hand; and State, county, and local governments on the other. This is
not to say that Indian tribes are instrumentalities or creations of the
Federal Government. They are not. ^^^ It is analytically essential, how-
ever, to recognize that Federal law, not State law. is preeminent in
Indian country. Tribal powers spring from the tribe's own inherent
sovereignty and can be diminished only by express Federal, not State,
action.

From the early days of this Eepublic, local interests have placed
the greatest pressures on Congress to limit the land bases and powers
of tribal governments. In some instances, such as the Allotment Act,
Public Law 280, and the Termination Acts, those pressures were no-
tably successful.

But, when one considers the long historical sweep of Federal-tribal
relations, the marvel is that tribes have retained so many of their es-
sential governmental powers. Similarly, with the exception of Public
Law 280, tribal governments have retained the great part of their
immunity from State jurisdiction.

This is partly due to congressional actions such as the Indian Re-
organization Act and, most particularly, the progressive legislation
during the 19T0's. Congi-ess has truly been a trustee during those
periods.

^^ McClanalian v. f^tate Tax Comm'n. 411 U.S. 164 (1973). McClanalian Is discussed more
thoroughly above. See text following footnote 8.

'^'^ See, e.g.. Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) ; Talton v Mayes,
163 U.S. 376 (1895).

120

The station of American Indians in our society is also due to the
classic opinions of the United States Supreme Court which developed
the basic Indian law doctrines when the Cherokee Tribe came to that
court of last resort in the 1830's. Those principles have since been
reaffirmed and applied to other tribes and to other circumstances. Both
of those doctrines — tribal sovereignty and the trust responsibility —
remain vital and far-reaching today.

The development of Indian law and policy has not always been even.
For the tribes, it has sometimes been two steps forward and one step
back. But there can be no question about the essence of modern Fed-
eral Indian law and policy: it stands for strong tribal self-govern-
ment and for strict protection against assertions of State jurisdiction.
The three branches of the Federal Government have all spoken on
those points.

Federal policy cannot, of course, provide a full picture of life on
the reservations, in the cities, or in those areas occupied by terminated
and nonfederally recognized tribes. It is a long way from Capitol Hill,
the White House, and the Supreme Court building to Indian country.

Even today, many tribes exercise relativel}' few powers of self-
government. No tribe has exercised the full range of those powers. The
tribes still feel the effects of the restrictive Federal policies laid down
between 1871 and 1933.

But since the termination era abated during the late 1950's and
especially during the 1970's, the definite thrust of tribal policy has
been toward a greater use of their powers of self-government. The
terminated and nonfederally recognized tribes have sought to develop
their existing rights and have attempted to reestablish the full Federal-
tribal relationship. The federally recognized tribes, taken as a whole,
have moved forcefully and responsibly in the direction of developing
their governmental systems. Tribal legislatures are adopting social
programs, land use planning measures, and tax plans to provide for
the future. Tribal courts are expanding their systems of justice. Thus
the States usually cannot govern on the reservations, but the tribes are
showing that they can do the job competently and fairly.

These developments hold the greatest promise for the tribes. They
hold promise for the land, which has been there forever, and for the
generations which will be there tomorrow. Ultimately, that promise
can only be realized by American Indians themselves. But the distinc-
tive doctrines of Federal Indian law and policy are fundamental tools
which the tribes have used and are using to fulfill that promise.

CHAPTER FOUR
TRUST RESPONSIBILITY

The Federal trust responsibility emanates from the unique relationship between,
the United States and Indians in which the Federal Government undertoolc the
obligation to insure the survival of Indian tribes. It has its genesis in interna-
tional law, colonial and U.S. treaties, agreements, Federal statutes and Federal
judicial decisions.

(121)
92-185—77 W

CONTENTS

Page

Introduction 125

Trust relationship 125

Tribal sovereignty and Indian citizenship 126

Wardship versus trusteeship 126

Trustee's duty of care 127

Courts find Government accountable 128

Conflict of interest 129

Scope of trust obligation 129

Congressional guidance required 132

Should the trust be specifically defined? 132

The trust concept is a constantly evolving doctrine 133

Development of a sound trust policy 133

Recommendations :

A. Statement of policy 136

B. Indian trust rights impact statement 13T

C. Legal representation for Indians 137

D. Authorization for award of attorney's fees 138-

(123)

CHAPTER FOUR
TRUST RESPONSIBILITY

Introduction

The Federal trust responsibility to American Indians is one of the
most important as well as most misunderstood concepts in Federal-
Indian relations. Admittedly, it is a rather confusing legal concept
with murky origins and inexact application. Indian opinion is clear
that, along with tribal government powers, a reaffirmation by Con-
gress of the Federal trust responsibility could go far in improving
Federal-Indian relations and setting a firm course for Government
policy which would give substance to self-determination for Indians.

It should be noted that many of the 11 Commission task forces dis-
cussed in their reports various aspects, legal analyses, and historical
factors in the development of the Federal trust relation.^ Moreover,
several excellent law review articles and general essays have ex-
amined Federal judicial decisions, statutory and treaty law, and the
historical evolution of the trust doctrine.^ At least one of these has al-
ready been published in a congressional committee print.^ And Con-
gress previously has conducted hearings on matters which relate di-
rectly to what the trust means and how it is and should be adminis-
tered.* What follows is a brief discussion of these elements of the
law and history which are most relevant as background for the
recommendations.

The Trust Relationship

The relationship of the United States to Indians is "perhaps unlike
that of any other two people in existence.*' ^ This statement was made
by the Supreme Court almost 150 yer.rs ago, and while there have been
great changes in that relationship since that time, it is still "marked
by peculiar and cardinal distinctions which exist nowhere else.'" '^ One

^ See U.S. Cougress. American Indian Policy Review Commission. Final Keport of TasFc
Force One, Trust Responsibilities and the Fetleral-Indian Relationship, including Treaty
Review, sec. 7 ; Final Report of Task Force Two, Tribal Government ; Final Report of Task
Force Three, Federal Administration and Structure of Indian Affairs ; Final Report of
Task Force Five, Indian Education; Final Reiwrt of Task Force Seven, Reservation Re-
source Development and Protection ; Final Report of Task Force Eight, Urban and Rural
Non-Reservation Indians (45-56) ; Final Report of Task Force Nine, Law Revision, Codi-
fication and Consolidation. Washington, U.S. Gov't. Print. Off., 1976. Final Reports of Task
Forces are hereinafter cited by Task Force number.

2 For example. R. Chambers, Judicial Enforcement of the Federal Trust Responsibilitv to
Indians, 27 Stanford L.R. 1213 (1975) ; C. Wilkinson and .1. Volkman, Judicial Review of
Indian Treaty Abrogation : "As Long as Water Flows, or Grass Grows upon the Earth —
How Long a Time Is That?" 63 Cal. L.R. 601, 612-617 (1975).

^^ U.S. Congress, Senate Comm. on Judiciary, Subcomm, on Administrative Practices and
Procedure. R. Cliambers. A Study of Administrative ODnflicI of Interest in the Protection
of Indian Natural Resources. Washington, U.S. Gov"t. Print. Oil"., 1971 (91st Cong., 2d sess.
Senate Comm. reprint).

*E.g., see hearing testimony on the proposed Indian Trust Counsel Authority. U.S. Con-
gress Senate Comm. on Interior and Insular Affairs, hearings before Subcomm. on Indian
Affairs on Nov. 22, 2.3. 1971. Washington, U.S. Gov't Print. Off. (92d Cong., 1st sess).

5 Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831).

«Id.

(125)

126

■of those distinctions involves the trust responsibility which the Fed-
eral Government owes to Indians. Ill
The United States holds legal title to Indian lands, yet those lands
cannot be disposed of or managed contrary to the equitable title rest-
ing witli Indians. This means that while the United States Govern-
ment has the appearance of title as the nominal owner of Indian trust
lands, it is actually holding title entirely for the benefit and use of the
Indian owners.

Tribal Sovereignty and Indian Citizenship

Indian tribes are not parties to the U.S. Constitution or explicitly
institutionalized as part of the federal system of governmental power,
jet, siinilar to States, tribes do retain that degree of governmental
sovereignty which they have not relinquis-hed to the United States
Government.^ In other words, in the Constitution, the States delegated
■ to the Federal Government certain powers, including whatever powers
they may have had over Indian tribes and lands.^ Similarly, Indian
tribes, pursuant to treaties and agreements, relinquished certain
powers to the Federal Government and retained others. Tribal mem-
bers are United States citizens, yet they are citizens of their tribes
also, giving them riglits and privileges distinct from any other racial
or cultural group in the Nation. Other examples of the different status
pertaining to Indians are numerous but tlie point is that there is pres-
ent in law and policy certain rights which are unique to Indian tribes
and people.

The Federal trust responsibility emanates from the unique rela-
tionship Ixitween the United States and Indians in which the Federal
Government undertook the obligation to insure the survival of Indian
tribes. It has its genesis in international law. colonial and U.S. treaties,
agreements. Fedpral statutes and Federal judicial decisions.^ It is a
"duty of protection" which arose because of the "weakness and help-
lessness" of Indian tribes "so largely due to the course of dealings of
the Federal Government with them and the treaties in which it has
been promised * * *." ^° Its broad purposes, as revealed by a thought-
ful reading of the various legal sources, is to protect and enhance the
people, the property and the self-government of Indian tribes. The
extent to which these purposes have been understood fully, let alone
carried out, have varied greatly over the decades. This lack of under-
standing and consistent policy has contributed immeasurably to
Indian resentment and suspicion of Government programs.

Wardshtp Versus Trustkksiitp

'When Indians say they want control over their lives.^^ they often
find the Federal trust responsibility being used as a tool Ceither de-
liberately or innocently) to deny them that control, to inject Federal

T See F. Cohen, Handbook of Federal Indian Law 122 (1941).

srs ron«t art. ITT. sec. Sf?!). See Worre.ifer v, Opornla. Zl F.S. 515 (1832).

« See generally. Air'UC, Task Force Nns. 1 and 8: also Tl. Chambers, notf 2, svpra. At
least with respect to Indian lands, the Trade and Intercourse Act created a Federal trust
responsihiiny. Passamnquoddu Trihe v. Mortnn, 528 F. 2d. 370 (1st clr. 1975).

M TJvited Stafrt^ y. Knanwn. 118 U.S. 375. .'584 (1886).

11 fipp p £r. aTPRC Tps'- Vovcp No. 3. apn. T>. Dpclnrfltlnn nf Indian Purpose: aUr> Special
Tribal Report of the Northwest Affiliated Tribes to the AIPRC.

127

bureaucracy where there should be self-government, to encourage
paternalism where cooperation or independence should prevail. Much
of this misuse could be avoided if the Federal duty would be viewed
as flowing from a trustee/beneficiary relationship rather than a
guardian/ward relationship. Although Indians have sometimes been
referred to by the courts as '"wards*' and while this term may have
been a fair description in the 1800's. it is a misleading characterization
of the modern-day status of Indians. There is a very significant dif-
ference in the authority and control which may be exercised by a
guardian as opposed to a trustee.

In common law, the purpose of a guardianship is to protect minors
or incompetents. The guardian does not have title to the ward's prop-
erty but he does have the power to manage it. He is under the direct
supervision of a court and is not required to consult with the ward
in carrying out his duties.^^ This is distinguished from' the Indian
situation in which, like the common law trust, title to the property is
split (thus requiring the consent of both the Federal Government
and the Indians in order to dispose of the property), where manage-
ment of the property is shared, and where the responsibilities of the
Federal Government to account to the trust beneficiary are consider-
ably broader than merely accounting to a court for the management
of a ward's property. The relationship should be thought of not only
in terms of a moral and legal duty, but also as a partnership agree-
ment to insure that Indian tribes have available to them the tools and
resources to survive as distinct political and cultural groups.

In many instances, the duty of the Federal Government in this
relationship has been stated as one of "care'" and "protection" of
Indians. For example, in the treaty with the Cherokees of Novem-
ber 28, 1785.^^ the United States agreed to "give peace to all the
Cherokees, and receive them into the favor and protection of the
United States," to provide "benefit and comfort" and to prevent "in-
juries or oppressions". (Article IX). In the treaty, both the United
States and the Cherokee Tribe were referred to as "contracting parties"
(Article XIII). This language can be viewed as creating an "express
trust" although the term "trust" has not been used.^*

Trustee's Duty of Care

The Federal duty can also be likened to the "implied trust" in com-
mon law whereby a trust is created by operation of law. Generally,
such trusts are recognized by the courts on the basis of an implied
intention of the parties to a transaction (resulting trust) or on the
basis that recognition of a trust is necessary in order to prevent the
unjust enrichment of one party who committed fraud, deception or
some other wrongdoing (constructive trust). ^^ In such circumstances,
the requirements and restrictions imposed on a trustee are recognized
even though no formal trust document creates them.

'2 5 A. Scott. Law of Trusts (3d ed. 1967).

" Vol. II. Kappler's Indian Affairs, Laws and Treaties 8-10.

" Jt\ order to create a trust It is not necessary to actually use the term "trust'. Intent
and circumstances will determine if an actual trust has been created. See, 1 A. Seott, Law
of Trusts 174-1S7 (M ed. 19R7).

«.5 A. Scott, Law of Trusts 321.3-.3216 (3d ed. 19R7».

128

This analysis of the United States duty to Indians as that of a
trustee to his beneficiary is supported by many judicial decisions
where common law trust principles were used to measure the actions of
the Federal Government toward Indians.*^^ "VVliether the creation of
the responsibility is deemed an express trust or implied trust and
whether the nature of the duty is identified as an active trust or a.
passive trust, the results are the same : the Federal Government is a
fiduciary and as such is "judged by the most exacting fiduciary
standards." ^^ This means that it must act with good faith and utter
loyalty to the best interests of the beneficiary.^^ It must keep the
beneficiary informed of all significant matters concerning the trust
and must not engage in "self-dealing." ^^ Under common law prin-
ciples, if the trustee manages the trust propertj^ in such a way that he
may benefit (such as, for example, buying property for himself) and
the beneficiary has not been fully informed of the transaction and
consented to it, the transaction is voidable by the beneficiary, even
though the trustee may have acted in good faith and the bargain Avas
a fair and reasonable one. And even if the beneficiary did consent to
the transaction prior to its taking place, he may still be able to void
it if the trustee can be shown to have failed to disclose essential facts
which he knew or should have known, or if he fraudulently induced
consent, or if the bargain was not fair and reasonable.^"

CouETS Find Government Accountable

In addition to good faith and loyalty, the fiduciary relationship-
also requires that the trustee exercise the care, diligence, and skill of a
prudent person in managing the trust assets of the beneficiary. This
common law principle has been directly applied to the Federal trust
responsibility to Indians.^^

These doctrines are being applied increasingly by the courts to the
actions of the executive agencies of the United States with respect to
Indian lands,^^ water resources,-^ and trust funds.^* But there is a key
distinguishing factor present in the Federal trust relationship with
Indians which does not occur in any other trust relationship: The
trustee may unilaterally terminate the trust relationship. The ulti-
mate trustee in Indian affairs is the United States Congress and it
can establish or redefine the existence and scope o.f the Federal trust
responsibility and even unilaterallj^ dissolve the relationship^ if it
chooses. This power stems from the plenary power of Congress in In-
dian affairs. This power and the Indian reaction to its exercise is
discussed in chapter 11. Congress has designated a principal agent for
carrying out the trust, i.e., the Department of the Interior. That agent

^« E.p.. United States v. Mason, 412 U.S. S91 (1973) ; Manchester Band of Porno Indians,
Inc. V. United States, 363 F. Supp. 1238 (N.D. Cal. 1973).

^- Seminole Nation v. United States, 316 U.S. 286. 296 (1942).

■^^ Manchester Band of Porno Indians, Inc. v. United States, 363 F. Supp. 1238 (N.D.
Cal. 1973). For further elaboration on this standard of performance, see 5 A. Scott, Law of
Trusts 1298 (3d ed. 1967).

w .') A. Scott. Law of Trusts 1277-1299 (3d ed. 1967).

2« 7<J. at 1298.

21 United States V. Mason, 412 U.S. 391 (1973) : Menominee Trihe v. United States, 101
Ct. CI. 10 (1944) ; Manchester Band of Porno Indians, Inc. v. United States, 363 F. Supp.
1238 (N.D. Cal. 1973).

a United States v. Creek Nation, 295 U.S. 103 (1935).

23 Pyramid Lal<e Paiute Trihe v. Morton, 354 F. Supp. 252 (D.D.C. 1972).

2< Seminole Nation v. United States, 316 U.S. 286 (1942).

129

cannot terminate the trust nor change the manner in which it is carried
out, but the trustee (i.e., Congress) itself can. The beneficiary may be
able to relieve the trustee of its trust responsibility in certain cir-
cumstances, but the extent to which that may be clone should be
clarified.-^

Conflict of Interest

These principles place the United States in a curious position. Not
only is it charged as trustee for a private interest, i.e., Indians, but it
also must balance competing interests in carrjdng out public policy.
Therein, of course, lies the source of the long-lamented conflict of
interest of the Federal Government in carrying out the Indian trust
responsibility. "What happens when perceived public policy is incon-
sistent with the Indian interests? Under the current administrative
structure, Indian interests often suffer.^^

"Wliile this conflict can never be entirely eliminated, it can be dimin-
ished greatly by vesting the primary responsibility for carrying out
the trust responsibility in an Executive office which has as its single
mission the protection of Indian tribes and imjirovement of the eco-
nomic and social status of the Indian people. While the Bureau of
Indian Affairs is charged currently with the primary obligation for
carrying out the Federal trust responsibility in most subject areas, it
cannot fill that role adequately while subject to the competing demands
present within the Department of the Interior. It is difficult to recon-
cile, for example, the functions of the Bureau of Land ]\Ianagement
and the Bureau for Fisheries and Wildlife with the requirements of
the trust to protect the Indian land base, forestry, mineral resources,
and hunting and fishing rights. ( See chapter VI for proposals to allevi-
ate this administrative conflict of interest.)

This does not imply, however, that the Federal trust duty rests
solely with one Executive office. Courts have firmly stated that the
trust duty is an obligation of the United States Government.^^ Legally
there may be, and practically there should be, a prime agent in the
Federal Government which insures that the trust is carried out faith-
fully, but this does not relieve other Federal agencies of the fiduciary
duty to act with the utmost care, good faith, and prudence where
Indian trust rights are concerned or potentially affected. Nor does
this relieve the agencies of the duty to provide those services neces-
sary for protection and enhancement of those rights. Many examples
of the conflict of interest are cited in the Commission task force
reports. This conflict is particularly obvious when Indians attempt
to secure adequate legal representation to protect their trust
interests.^^

Scope of Tkust Obligation-

The Department of the Interior adopts a very narrow interpretation
the trustee concept by limiting its application to the lands, natural

Z l^^ ^H?5^' ^^^V' ^"""^^ ^>- -• <'^- 1- '"i"*^ sPe ''^- ^- part A-3 of this report,
note 3^s»/^7 ^ ^^^^ ' ' '^^^''^^^ ' ^IPRC, Task Force No. 3 ; R. Chambers,

27 (yee generally. F. Cohen, Handbook of Federal Indian Law. 171-172 (1941) and ca=;es
citeci therein.

28 See generally, AIPRC, Task Force Xo. 9, part 6, ch. 10.

130

resources, and mangement of trust funds of "federally recognized"
tribes.^^ There is little reason to so restrict the trust doctrine other
than administrative convenience. There is legal authority that the
United States trust duty is much broader. =^° The purpose behind the
trust is and always has been to insure the survival and welfare of
Indian tribes and people. This includes an obligation to provide those
services required to protect and enhance Indian lands, resources, and
self-government, and also includes those economic and social pro-
grams which are necessary to raise the standard of living and social
well-being of the Indian people to a level comparable to the non-
Indian society. This duty has long been recognized implicitly by
Congress in numerous acts, including the Snyder Act of 1921,^^ the
Indian Eeorganization Act of 1934,^^'' the Jolmson-O'Malley Act of
1934,22 ti^e Native American Programs Act of 1974,^^ the Indian Self-
Determination and Education Assistance Act of 1975,^* and the Indian
Health Care Improvement Act of 1976.^^ In fact as early as 1818
Congress established a general civilization fund to aid Indians in
achieving self-sufficiency within the non-Indian social and economic
structure.^^

The Commission has found that Indian people are unanimous and
consistent in their own view of the scope of the trust responsibility.
Invariably they perceive the concept to symbolize the honor and good
faith which historically the United States has always professed in
their dealing with the Indian tribes. Indian people have not drawn
sharp legal distinctions between services and custody of physical as-
sets in their understanding of the application of the trust relationship.
Consequently, at its core, the trust relationship has meant to them the
guarantee of the U.S. that solemn promises of Federal protection for
lands and people would be kept. The fact that the United States has
been notoriously unfaithful in observing its commitments to the In-
dian tribes is not seen as lessening the continuing responsibility. In
this context the range of social services which the United States has
traditionally provided and for which successive Congresses have ap-
propriated funds (for example, see the above list of statutes) have al-
ways been seen as an integral part of the Federal-Indian relationship.

Notwithstanding this common perception of the scope of the trust
responsibility, an analysis of the implications of its meaning on a level
of practical application logically forces us to make a broad distinction
between the protection of physical trust assets and the commitment
to provide human services. This distinction is particularly relevant
in view of the Commission recommendations articulating a standard
of care, remedies for breach of tnist, and the necessity for proce-
dural protections to accompany condemnation of trust interests. As
the above analysis makes clear, these principles have evolved in the

-T.S. Congress. House Comm. on Appropriations, Subcomm. on the Dept. of Interior
and Rplated Agencies. Hearinss on BIA Appropriations, 102 et seq. (94th Conir.. 1st spss.,
1976) : see also U.S. Dept. of Interior, Office of the Secretary, Letter from Acting Secre-
tary Kent Frizzell to David Getches. Oct. 27, 19T6.

30 ,S'ee AIPRC. Task Force No. 1 ; Task Force No. 8 ; also R. Chambers, note 2, supra.

^ 25 U.S.C. sec. 13.

M" 25 TI.S.C. sec. 461 et seq.

3= 25 U.S.C. sec. 452.

33 8S Stat. 2323.

8* 88 Stat. 2203.

3s P.L. 94-437.

38 See ch. 8, this report.

131

coiirse of judicial anal^-sis of the trust responsibility, which have
found the common law principles of trust to be an appropriate frame
of reference. Essentially, the courts have found that trusteeship with-
out standards, remedies, or procedural protections borders on beingr
meaninofless and unenforceable. It is important to note that these court
decisions have all arisen in the context of the trust responsibility as
applied to physical assets. The principles of law derived from com-
mon law trust doctrine are readily applicable to the trust relationship
as it affects the United States' stewardship of Indian trust assets. The
identification and formulation of standards of care, remedial devices,
and procedural protections by the Commission have only followed this
development in the law as found in Federal iudicial decisions.

The trust relationship as applied to the broader concepts of Iniman
services and supportive Indian tribal government calls for a different,
thou.<^h parallel, line of reasoning. That is, the principles of law so
readily applicable in reference to the intansrible responsibilities of pro-
vidinsr services and respecting rijffht of self-government. It is a matter
of a difference in form, which calls for a dilfference in application.
Tlie Federal respousibilitv to provide services and to suj^port the right
of self-government is no less of a trust resDonsibility simplv because
the manner of application is distin<juishable. The social and 2fovern-
mental trust, which is more nearly analogous to the .onardian-ward
principles, is clearly no less of a binding responsibility and is cer-
tainly understood to be on the same level bv Indian people.

The precise manner in which these obli<]:ations are fulfilled in tei^ms
of ma^itude and distribution may be changed by Congress as the
relative streno;th and self-sufficiency of Indian tribes chancre. But the
federal duty to provide them remains constant. Furthermore, the
nature and degree of services provided by the Federal Government
pursuant to the trust obligation is not altered by the services which
Indians may receive on the same basis as other United States citizens
or governmental units. This follows f,rom the dual-entitlement con-
cept whereby Indians, pursuant to equal protection of the laws, have a
right to receipt of general government services on a nondiscriminatory
basis and also a right to those services offered specifically to Indians
as a distinct group of citizens.

It must be pointed out that the special "Indian" services have never
resulted in double benefits nor have they been understood as such by
Indian people. The congressional purpose in providing Indian serv-
ices has alwavs been to meet the minimal human service needs of In-
dian communities where general government services have been un-
available. However, the Commission has found that in many instances
Indians have been declared ineligible for general government serv-
ices due to a pattern of misunderstanding of the effect of dual entitle-
ment by government officials with the result that too often Indians
have received no services. In chapter eight of this report, the Com-
mission calls for congressional oversight hearings to investigate this
problem.

It should be noted that the trust obligation extends not only to
tribes as governing units but also to their members wherever they may
be.27 There is nothing in the law which holds that the Federal trust

37 United States v. Holliday, 70 U.S. 407 (1865) : Seminole Nation v. U S., 316 U S 286-
(1942) ; McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973).

132

responsibilitv stops at the reservation gate, nor do sound policy con-
siderations dictate such a result. On the contrary, consistency and
fairness demand just the opposite. ^Moreover, the trust duty of the
TJ.S. Government "is not affected one way or the other by the delivery
or nondelivery of Federal social service programs in urban and other
nonreservation settings or by the Federal choice of delivery vehicles.
The trust obligation is unique and independent of other Government
activities.

CONGRESSIOXAL GuiDAXCE ReQUIKED

Congress has often contributed to the misunderstanding of the U.S.
trust responsibility and has sometimes inadvertently prevented Fed-
eral agencies from" administering it in the best interests of the Indians.
This results because Congress has not always given sufficient guidance
to executive agencies as to what is expected of them in carrying out
these responsibilities. Furthermore, inadequate appropriations for In-
dian programs indirectly encourage agencies to restrict eligibility for
their trust services, contrary to both the purposes and the rationale
for the Federal trust relationship. Given the dramatic significance of
the trust responsibility in Federal-Indian relations, and the plenary
power of Congress in Indian matters,^^ there is little reason for leav-
ing the doctrine to founder in judicial and administrative guesswork
and budgetary juggling. Therefore, the Commission concludes that
Congress is the appropriate forum for discussion of the trust
relationship.

Should the Trust Be Specifically Defined ?

There was considerable discussion in and outside the Commission
as to the relative merits of two alternative approaches to recommended
legislation dealing with the trust responsibility :

(1) A detailed definition ;

(2) A general statement of policy.

The argument for the first alternative was that such a definition
would clarify legal rights under the concept, give day-to-day guidance
to executive agencies carrying out the trust and diminish the incon-
sistencies in administrative and Federal court decisions as to how the
trust translates into affirmative duties and rights in Indian law.

The argument against a precise definition of the trust obligations
with an enumeration of specific rights and obligations is tiiat the
Federal trust responsibility is a continually evolving concept. This
argument suggests that a general affirmation of the trust responsibility
by Congress would not place undue restrictions on the development of
this doctrine but still would constitute an explicit recognition of the
scope of the obligation by Congress.

The Commission has taken the middle ground between these alter-
natives and elected not to offer a detailed definition of trust respon-
sibility because such a definition offered today could become obsolete
and unmanageable as the nature and functions of tribal governments
cA'olve, as the role which Iiidians play as United States citizens

38 United States v. McGoican, 302 U.S. 535 (1938) ; Warren Trading Poi^t v. Sifate Tax
Commi-^sion, nso U.S. 685 (1965). For discussion of the plenary power, see AIPRC, Task
Force Xo. 9, 32-35.

133

clianges, and as the relationship bet^veen the Federal Government and
tribaT governments responds to new realities and demands. In such
circumstances, a specific legal definition of the trust relationship
could in time be a hindrance to Indian self-government and economic
improvement.

LikeAvise, we elected not to recommend a simple, broad reaffirma-
tion by Congress that there is such a concept as a trust responsibility.
Congress has recognized implicitly the special obligation of the United
States to American Indians in many statutes. The Federal courts have
recognized and given substance to the trust duty for more than 150
years.^^ And various sectors of the executive branch do specifically
recognize the trusteeship.'*"

Despite this recognition, the trust duty remains somewhat fuzzy^
poorly administered, and a matter of some disappointment to Indians
who read Federal court statements that the trust responsibility in-
volves ''moral obligations of the highest responsibility and trusf' and
is to be "judged by the most exacting fiduciary standards," *^ then try
to perceive those obligations being met. As a rule, Indians cannot see
the performance of the promise.

The Trust Coxcept Is a Coxstaxtly Evolvixg Doctrixe

The recommendations constitute a "definition" in that they set out
more clearly than previous congressional actions wdiat the trust duty
is, who owes it and to whom, and wliat the standards should be for
judging performance. But they have purposely restiicted statements
of these elements to broad principles.

This approach is desirable because, much like the principles and
rights contained in the U.S. Bill of Rights, the United States trust
responsibility is a constantly evolving legal concept. To a great extent,
this flexibility in meaning accounts for the continued vitality and
relevance of these legal determinants, despite the enormous political
and social changes witnessed in the 200-year history of the United
States. The principles contained in the Bill of Eights and those in-
herent in the trust relationship with Indians should be allowed that
flexibility.

It should be noted that there is considerable support in statutory,
judicial, and constitutional law for the congressional declaration set
forth below. Consistent with Supreme Court mandates, these sources
have been read in favor of Indians, and as Indians would have
understood them.^^

Developmext of a Souxd Trust Policy

The first paragraph of the recommended policy statement (Al
below) proposes an explicit recognition that the trust obligation is

39 For example. Worcester v. Georgia, 31 U.S. 515 (1832) and more recently Passama-
qunddy Tribe v. Morton, 528 F. 2d 370 (1st cir., 1975) affirming 38S F. Supp'. 649 (B.C. Me.,
1974).

*" E.pr., message from President Xixon to Congress, the American Indians — Message
from the President of the United States, 116 Cong. Rec. 23131, 23132 (197C) ; also 1976
Appropriations Hearings, note 28 supra.

" Seminole Nation v. United States, 316 U.S. 286. 296 (1942).

" For a thorough discussion of the case law setting forth this rule of Inttrpretatlon, see
AIl'RC, Task Force No. 9, pt. I, ch. 1, sec. C.

134

linked historically to protection of Indians and Indian tribes in three
areas : (1) trust resources, including lands, natural resources, and trust
lunds ; (2) services related to the economic and social well-being of the
Indian people; and (3) the right to self-go\-ernment. With respect to
services related to protection and enhancement of trust assets, the
United States should be held to the standards of a common law trustee
as discussed in the narrative above, and it should be subject to liability
in Federal courts for violation of this trust obligation. In the absence
of such a remedy there is no incentive for the trustee to perform its
obligation in a diligent manner.

In matters relating to possible liability for failure to protect rights
of self-government or to provide social and economic services, the
courts have not spoken. Certainly it is possible that events such as the
diminishment of the governmental capacities of the tribes in matters
such as the power to regulate limiting and fishing activities could lead
to significant monetary losses. The Conniiission recommendations set
forth below would not preclude legal actions either for monetary
damages or for injunctive relief in either of these areas.

The second paragraph (A2) reaffirms Federal court holdings that
the trust duty is not one which applies only to the Bureau of Indian
Atlairs or another ''Indian agency." Federal agencies may not be re-
quired to establish special Indian programs, but they are required to
act consistent with fiduciary standards when they take actioiis which
inay affect Indian trust property.

The third paragraph (A3) makes it clear that the Federal trust
responsibility extends to members of Indian tribes but is not limited to >
Indians living on reservations. The last sentence merely reaffirms the
rights of Indians to those services offered to all United States citizens
and to those offered specifically to American Indians. Eligibility for
receipt of one does not preclude eligibility for receipt of the other.

The fourth paragraph (A4) emphasizes that Indian lands are not
public lands. They are privately owned lands held in trust by the
United States for Indians. It should be unnecessary to state this in a
congressional policy except that it is a legal fact which sometimes still
is ndsunderstood. For example, as recently as 1972, the U.S. Court of
Appeals for the Tenth Circuit identified Indian trust lands as "public
lands," thereby subjecting them to more stringent environmental!
protection rules than other private lands.*^

The recommendation of an Indian rights impact statement con--
tained in section B below follows from two premises: (1) Federal
agencies have in the past and today continue to violate Indian trust
rights; and (2) a procedure should be established which would pre-
vent such violations without consent of the Indians or specific authori-
zation of Congress. The need for such an Indian rights impact state-
ment is fully discussed in the final report of Task Force Number Nine,
pages 62-70. Among other specific instances listed is the conflict be-
tween the Seneca Indian Nation and the Army Corps of Engineers
in which the tribe lost in excess of 80 percent of its reservation without
specific congressional authorization.

Under our proposal, prior to taking any action which may abrogate
■ or otherwise infringe on Indian trust ris^hts. Federal agencies must

*^ Davis V. Morton; 469 F. 2d 593 (10th cir., 1972).

135

first seek consent from the affected Indians and obtain authorization
from Congress. Under part 2 of section B below Congress will not
authorize such action absent Indian consent except under "extraordi-
nary circumstances whore a compelling national interest requires'Mt.
In anj^ case, the congressional authorization must identify the specific
Indian rights being affected and that it is the intent of Congress to
''abrogate or infringe such rights." It is implied in this procedure
that the appropriatelndians and Federal agencies will receive copies
of the impact statement and be permitted to comment on its contents.

Because of the conflict of interest problems, frequent refusal by the
Department of the Interior and the Department of Justice to represent
tribes or individuals involved in trust issues, and limited resources of
the tribes to employ their own attorneys, Indians are often unable
to secure adequate legal representation to protect or enforce their
rights under the Federal trust responsibility.** And even when they
are. able to litigate, the enormous expense involved depletes tribal
resources and hinders delivery of needed services. The recommenda-
tions in section C below are intended to alleviate this situation by
creating a new office Avith litigation authority and providing for
government payment of fees for private attorneys representing
Indians in trust matters. Nothing in this section, however, affects the
right of tribes to engage counsel on their own behalf.

Section C recommends that within a new Department of Indian
Affairs, which is recfinimended elsewliere in tliis report (see chapter
six), there be established an Office of Trust Riglits Protection. It may
be part of a general counsers office in tlie department or it may be a
separate entity. In either location, it would assume a role as the pri-
mary legal aclvocate in the Federal Government for protecting and
enforcing Indian riglits pursuant to the Federal trust responsibility.
With Indian consent, it would provide legal guidance in trust matters,
initiate and participate in administrative proceedings affecting Indian
ti'Ufit rights and prepare and try Indian cases in Federal and State
courts. The Department of Justice would have a secondary duty to
handle such matters upon request of the Office. Upon establishment of
the Office, the function of the Division of Indian Affairs of the
Solicitor's Office in the Department of Interior would be transferred
to the new office.

This approach to relieving the conflict of interest problems so
troublesome with the present structure for providing legal assistance
to Indians presupposes the creation of a Department of Indian Affairs.
In the absence of such action, it is the recommendation of this Com-
mission that some entity like the proposed Indian Trust Counsel
Authority ^^ be established.

The difficulty with the Trust Counsel concept as proposed is that :
(1) it does not go far enough to diminish conflict of interest situa-
tions; (2) the distribution of responsibility between the Authority,
the Department of the Interior and the Department of Justice was
I'onfusing; (3) the proposed staff of the Authoritv was too limited
to adequately handle the potential caseload; and (4) because of the

** For an excellent discussion of specific cases of inadequate lesrnl representation f
[ndians and the reasons for it. see pt. VI. cli. 9 of the Final Report of Task Force No 9
*-^ See Hearinjrs on the Proposed Indian Trust Counsel Authority, note 4 supra

136

absence of field offices, comminiication between Indians seeking legal
assistance and the Authority would be cumbersome. Even still, the
idea \\^ould lead to an improvement of the current situation in that
Indians would have at least some alternative besides the Department
of Justice with its inherent conflict of interest.

The advantage of establishing a legal office with litigation authori-
zation in an independent Indian agency is that it would have readily
available the expertise and manpower of the parent agency; it could
place legal staff in the various field offices of the agency thus facilitat-
ing communication with Indian clients; and it would lessen the risk
of severe reductions in appropriations which would drastically reduce
the effectiveness of the legal office as an advocate of Indian trust
rights.

A recent Supreme Court decision strengthened the general rule in
Federal courts that the prevailing party in litigation is not entitled
to an award of attorney's fees by the pourt in the absence of statutory
authorization or other exception.*^ This rule, however, is subject to
revision or exception by Congress and numerous current statutes pro-
vide for such exceptions.*^ Recommendation D. below, is intended to
provide an additional exception in the case of Indians involved in
litigation. For an excellent and thorough discussion of the need for
such legislation and the consequences of the current practice, see part
6 of the final report of Task Force No. Nine.

Recommendatioxs

To clarify and hnpro'ce the administration of the Federal trust re-
sponsibility to ATnerican Indians^ the CoTnmission recommends
that:
Congress reaffirm and direct all executive agencies to administer the

trust responsibility consistent with tlie following principles and

procedures.

A. STATEMENT OF POLICY

In carrying out its trust obligations to American Indians (includ-
ing Alaskan Natives) it shall be the policy of the United States to rec-
ognize and act consistent with these principles of law^ :

1. The trust responsibility to American Indians is an established
legal obligation which requires the United States to protect and en-
hance Indian trust resources and tribal self-government and to pro-
vide economic and social programs necessary to raise the standard of
living and social well-being of the Indian people to a level comparable
to the non-Indian society.

In matters involving trust resources, the United States be held to
the highest standards of care and good faith consistent with the prin-
ciples of common law trust. Legal and equitable remedies be available
in Federal courts for breach of standards.

2. Although the trust responsibility is a legally binding duty re-
quired of all United States agencies and instrumentalities, and al-
though Congress has the ultimate responsibility for insuring that the

<" Ahiexkn Pipeline Service Co. v. Wilderness Society, 421 U.S. 240.

^' For a list of such statutes, see footnote 9, part VI, ch. 9 of the Final Report of Task
Force No. 9.

137

duty is met. there be in the executive branch one inde])endcnt prime
agent charged with the principal responsibilit}- for faithfulh' admin-
istering the trust.

3. The trust responsibility extends through the tribe to the Indian
member, whether (m or off the reservation. His or her rights pursuant
to this United States obligation are not affected by services which
he/she may be eligible to receive on the same basis as other United
States citizens or Avhich the tribe may be eligible to receive on the
same basis as any other governmental unit.

4. The United States holds legal title to Indian trust property, but
full equitable title rests with the Indian owners.

B. IXDIAX TKUST RIGHTS IMPACT STATE:MEXT

Limitation Upon Agency Action

Before any agency takes action which may abrogate or in any way
infringe any Indian treaty rights, or nontreaty rights protected by
the trust responsibility, it prepare and submit to the appropriate com-
mittee in both Houses of Congress an Indian trust rights impact state-
ment, to include, but not be limited to. the following information:

1. Nature of the proposed action.

2. Xature of the Indian rights which may be abrogated or in any
way infringed upon by the proposed action.

3. Whether consent of the affected Indians has been sought and o]?-
tained. If such consent has not been obtained, then an explanation
shall be given of the extraordinary circumstances where a compelling-
national interest requires such action without Indian consent.

4. If the proposed action involves taking or otherwise infringing
Indian trust lands, there must be notification whether or not lieu lands
have been offered to the aff'ected Indian or Indians.

Action hy Congress Required

When considering legislation which may have an adverse impact
upon treaty or nontreaty rights of Indians the Congress adhere to the
following principles.

The United States not abrogate or in any Avay infringe any treaty
rights, or nontreaty rights that are protected by the trust responsibil-
ity, without first seeking to obtain the consent of the affected Indian or
Indians. Such rights not be abrogated or infringed without sucli con-
sent except under extraordinary circumstances where a compelling na-
tional interest requires otlierwise. With or without Indian consent,,
such rights not be abrogated or infringed upon in any wav except
pursuant to a congressional act which identifies the specific affected
Indian rights and which states that it is the intent of Congress to
abrogate or infringe such rights.

C. LEGAL REPRESEXTATIOX FOR IXDIAXS

To diminish the conflict of interest prevalent when the Department
of Justice and the Department of the Interior provide services to In-
dians, to provide for more efficient rendering of legal services to In-

9J-18.J— 77 10

138

dians, and to otherwise improve the representation which Indians re-
ceive for protection and enforcement of their trust rights, Congress
enact the following legislation :

1. There be established within a newl}' created Department of In-
dian Affairs (see recommendation in chapter six) an Office of Trust
Rights Protection. Its duties shall include, but not be limited to, cata-
lognig and assisting in the management of Iiidian trust property, ad-
vising Indians and Indian tribes in legal matters and representing
them in all litigation aiid administrative proceedings involving In-
dian trust rights. In appropriate field offices of the Department of In-
dian Affairs there be a legal and jnofessional sralf under the super-
vision of the Office of Trust Rights Protection.

2. The Office of Trust Rights Protection be authorized to render all
appropriate legal services which now are rendered by the Department
of Justice and the Department of the Interior, provided that the
Indian client agrees to accept representation and services.

o. The Office of Trust Rights Protection have the primary responsi-
bility of the Federal Government for protecting, enforcing, and en-
hancing Indian trust rights, but this shall not relieve any Federal
agency from the duty to recognize and act consistent with the Federal
trust responsibility for Indians.

4. The Office of Trust Rights Protection act in the name of the
United States as trustee for Indians in all legal matters and proceed-
ings, except those whicJi it refers to the Department of Justice for
litigation. It have the discretion to so refer those matters for which it
does not have the staff, resources, or expertise to handle. The Office also
have the discretion and authority to engage private legal counsel to
represent Indians, tribes or groups in trust matters. In such cases, the
Ignited States Government may pay all fees and costs and the wishes
of the Indian clients shall be complied with, as much as possible, in
the selection of counsel. Where there is conflict of interest between
an individual Indian and a tribe involving trust issues, the Office rep-
resent the tribe and it have the discretion to engage private counsel to
represent the individual at Government expense.

5. The United States waive sovereign immunity for all actions in-
volving Indian trust matters brought by the Office of Trust Rights
Protection or private counsel engaged by it to represent Indians.

6. The Office be authorized to obtain whatever information, services,
and other assistance deemed necessary from other Federal agencies^
and such agencies be obligated to comply with such requests.

D. AUTHORIZATION FOR AWARD OF ATTORNEY FEES AXD OTHER LITIGATION

COSTS

Federal courts be authorized to award attorneys' fees and expenses
and all reasonable costs incident to litigation, including but not limited
to expert witness fees, in cases in which an Indian or Indian tribe or
group engages private attorneys and is successful in protecting or en-
forcing treaty, trust, or other rights protected by Federal statute Fed-
eral courts be given the discretion to order that" all such fees and co=ts
be paid by the losing party or bv the United States Government

CHAPTER FIVE
TRIBAL GOVERNMENT

Simply put, the question is whether tribes are going to be permanent, on-going
political institutions exercising the basic powers of local government or whether
they are to be transient bodies relegated to mere "service delivery vehicles" for
federal assistance programs ; mere "fedei'al instrumentalities" for the control
of the social behavior of their own tribal membership pending their ultimate
assimilation into the dominant society which surrounds them. This is the funda-
mental question for the future of Indian tribes and the fundamental question
which the Congress must resolve in the formulation of the future course of
Federal-Indian policy.

(139)

CONTENTS

Page

Fundamental elements of tribal government 143

A. Historical overview and jurisdiction generallj' 143

Historical development of tribal government 144

Earl}- history 145

Westward removal and reservation? 147

Allotment and assimilation period 148

Indian Reorganization Act and contemporary legal assump-
tions 149

Post-Reorganization Act 150

Summary 153

Conclusions 154

Recommendations 154

B. Sources of tribal power 154

Sovereignty 154

Powers stemming from land ownership 156

The Federal instrumentality concept versus tribal sovereignty. 158

Recommendations 160

■C. Tribal justice systems 160

Overview 160

Background 161

Current justice systems 163

Capabilities 165

Training and funding 166

Recomnaendations 167

D. Taxation 168

Introduction 168

Narrative 170

Federal taxation 170

Federal tax and Indian tribes 170

Federal taxation of indi\'idual Indians 171

State taxation 173

State taxation of non-Indians on reservations 175

State taxation of Indians and Indian tribes off-reservation — 176

Current developments in State taxation of reservation Indians. 177

Tribal taxation 178

Recommendations ISl

E. Hunting, fishing, trapping, and gathering rights 182

On-reservation rights and regulation 182

Off-reservation rights and regulations: Limits of State

authority 1S4

Tribal authority 184

Need for Federal involvement 185

Summary 186

Recommendations 187

Federal constraints on tribal government 187

A. The Indian Reorganization Act of 1934 187

Recommendations 192

B. The assertion and implementation of Federal criminal jurisdiction. 194

Federal criminal statutes 194

INIajor Crimes Act 195

JSIajor crimes enforcement 196

General and Assimilative Crimes Act 197

Recommendations 198

(141)

142

Federal constraints on tribal governments — Continued Pag©

C. Public Law 280 199

Overview 199

Legislative history of Public Law 280 199

Status of Public Law 280 implementation 200

Controversies concerning the scope of State jurisdiction 203

Indian opinion of Public Law 280 204

Non-Indian opinion 206

Recommendations 208

D. The 1968 Civil Rights Act: Immunity, judicial review, and

mutuality 210

Recommendations 214

Status of tribal governments and the delivery of services 215

A. The Federal domestic assistance program delivery sj^stem 215

Overview 215

Background 216

Status of tribal government within the Federal domestic assist-
ance program delivery system 217

Inequities of population formula grant guidelines 218

Federal agency administrative requirements 219

Coordination among Federal agencies responsible for provid-
ing Federal domestic assistance programs 219

Joint Funding Simplification Act 220

Recommendations 221

B. Funding of tribal governments and Public Law 93-638 221

Overview ^ 221

Background — ^Ability of tribes to finance operations 222

Strengthening tribal governments: AIPRC objective 222

Inability to support leadership positions 222

Obstacles in grant regulations 223

Criteria for determining service populations 224

Definitions of allowable costs for grants 224

Litigation costs as a burden on tribal governments 224

Summary 225

Recommendations 225

CHAPTEK FIVE
TRIBAL GOVERNMENT

Fundamental Elements of Tribal Government
A. historical ovER^^EW and jurisdiction generally

Federal policy toward tribal government should be directed toward
affirming and encouraging the development of tribal governments
into strong, viable, permanent governmental institutions. Litigation
surrounding the jurisdictional conflicts between States and tribes
may suggest the desirability of a legislative solution. But it is the
consensus of this Commission that any attempt to impose a broad
legislative solution at this time would be ill-advised and premature.

The Commission hnds that the growth and development of tribal
government into fully functioning governments necessarily encom-
passes the exercise of tribal jurisdiction over non-Indian people and
property within reservation boundaries. There are limits, of course,
and tribes must operate under the assumption that the jurisdiction
they assert over non-Indians must bear a reasonable relationship to
legitimate tribal interests such as protection of trust resources, mainte-
nance of law and order, delivery of services, and protection of tribal
government generally.

Accordingly, the Commission finds that the following three prin-
ciples should serve as the basis for the Federal-tribal-State relation-
ship.

Federal policy concerning tribal sovereignty must be premised on
an assumption that when confronted with options, the Indian people
will act intelligently, responsibly, and fairly when exercising powers
of self-government. The suspicion and resentment which presently
characterize the relations between the tribes and States must be
eliminated within the context of respect and acceptance of the institu-
tions of tribal government and Federal laws must be designed to
foster this result.

With the increased power and responsibility of tribal governments,
some Federal review authority will be imposed. The Federal policy
must accept the position that the supervisory authority it asserts
must be limited and flexible. This authority is now encompassed in
title II of the 1968 Civil Rights Act (Indian Civil Rights Act).

The ultimate objective of Federal-Indian policj^^ must be directed
toward aiding the tribes in achievement of fully functioning govern-
ments exercising authority within the boundaries of the respective
reservations. This autliority would include the power to adjudicate
civil and criminal matters, to regulate land use, to regulate natural
resources such as fish and game and water rights, to issue business
licenses, to impose taxes, and to do any and all of those things which
all local governments within the United States are presently doing.

(143)

144

nistorical Development of Tribal Government

Tribal government today is at a crossroads of history. Simply put,
the question is whether tribes are going to be permanent, on-going
political institutions exercising the basic powers of local government
or whether they are to be transient bodies relegated to mere "service
•delivery vehicles" for Federal assistance programs; mere "Federal
instrumentalities" for the control of the social behavior of their own
tribal membership pending their ultimate assimilation into the domi-
nant society which surrounds them. This is the fundamental question
for the future of Indian tribes and the fimdamental question which
the Congress must resolve in the formulation of the future course
■of Federal-Indian policy.

Today we find basic questions being asked about the definition of
terms such as "Indian", "tribe" and "reservation". We find expressions
of concern over the fact that tribes are "sovereign", and protests over
the fact that tribes are beginning to exercise governmental authority
over non-Indians. There is even concern over the fact that not all
tribes are organized on the same democratic principles that have gov-
erned the formation of the Anglo-American political structures.

There are complaints that one sovereign cannot exist within the
boundaries of another sovereign — an argument advanced by the State
of Georgia in the 18th century. This argument led directly to the west-
ward removal policies of the 1830's with the agreement set forth in
treaties that the newly established reservations in the West should
never be included within the boundaries of any State or territory. The
argument, even today, surfaces in occasional State court decisions de-
spite repeated Supreme Court decisions, since 1834 to the present, re-
affirming the sovereignty of Indian tribes.

There are also complaints that people should not be subjected to the
authority of government in which they are not allowed to partici-
pate — a complaint with a solid patriotic ring but one which does not
reach the core of the problem of government in Indian country; it
overlooks the history of Federal poiicy which opened the Indian lands
for non-Indian settlement against the wishes of the Indian community
and in violation of the treaty agreements. The arginnent also brushes
aside the moral and legal obligations of the United States to protect
and foster the development of tribal government. Both of these argu-
ments if decided in a manner favorable to the non-Indian complain-
ants would inevitably result in the reduction of tribal government to a
point where it could truly be said that Indian tribes are mere associa-
tions of private property owners having no more authority than any
voluntary association.^

The position in which tribes find themselves today is a direct out-
growth of continual conflict and vascillation of Federal-Indian policy
and the failure of the United States to honor the numerous commit-
ments made to Indian tribes in treaty negotiations. These policies are
discussed at length in the historical chapters of this report. They are
also treated at some length in the report of Task Force No. Nine (part
III) . The evolution of the legislative and administrative policies of the
Federal Government are given detailed attention in chapters 2 and 4 of

1 Such a findins was made by the 10th circuit in U.S. v. Mazurie, 487. F. 2d 14 (10th cir.,
1973). It was rejected by a unanimous Supreme Court on appeal 417 U.S. 544 (1975).

145

the Handbook of Federal Indian Law (Cohen, 1940) prepared under
the auspices of the Department of the Interior. Nevertheless, to place
this chapter on tribal government in perspective, it is necessary again
to review summarily the history of Federal-Indian relations and the
role of tribal government in this evolutionary process.

Early History

The legal basis for the concept of tribal sovereignty and of Indian
country on Indian reservations springs from treaty negotiations be-
tween the United States and the various Indian tribes on our Western
frontier. The primary cause of war between the European settlers and
the Indian tribes centered on the continual encroachment of the non-
Indian populace upon lands claimed by the Indian people. At the time
the process of treaty negotiation and purchase of land was instituted,
the Indian tribes constituted formidable forces with whom the great
powers such as England, France, Spain, and the United States sought
formal alliances in their continuing conflicts among themselves over
territorial claims in North America.

There were three primary benefits sought by the United States in
these treaty negotiations: (1) acquisition of lands for the burgeoning
population of non-Indian settlers; (2) loyalty of the tribes to the
United States as opposed to the other European powers; and (3) peace
on the frontiers by having clearly defined boundaries of lands claimed
by the Indian tribes. The primary benefits which the Indian tribes
sought were : (1) a recognition by the United States of their exclusive
right to the use and occupancy o,f a well-defined area; and (2) a com-
mitment from the United States to defend and protect their rights
within that area from non-Indian encroachment.^

The thrust of these treaties was that the tribes were expected to
maintain order among their subjects to prevent depredations against
non-Indians and were obligated to turn over to the United States for
punishment bad men among them who committed wrongs against non-
Indians. The United States, for its part, was expected to maintain
order among its subjects and punish non-Indians for wrongs committed
against Indians. The negotiations and the agreements were entered into
as one sovereign nation to another. The principles underlying this basic
relationship were described by Secretary of War Henry Knox to
President George Washington in a report to the President dated
July 7, 1789, evaluating the military situation on the frontiers and
recommending adoption of the above course of action as the most
feasible, the least expensive and the most honorable course of action
for the United States in its dealing with the Indian people.^ Legislation
through 1834 was premised on the policy positions laid down in that
report.* For the most part, the Indians kept their end of the bargain. It
goes without saying that for the most part, the United States did not
keep its end of the agreements.

- Many excellent books have been written on the subject of early Indian relations. Two of
note are "American Indians Policy for the Formative Years" by F. Prucha (Harvard Univ.
Press. 1962') and "The Invasion of America — Indians, Colonialism, and the Cant of Con-
quest" by Francis Jennings (Univ. of N.C. Press, 1975).

= American State Papers, Indian Affairs, vol. 1. pp. .")2-53.

* Act of June SO, 1834, ch. 161, 4 Stat. 729. See F. Cohen, Handbook of Federal Indian
Law (1940 ed), ch. 4.

146

Two basic concepts emerged out of this course of dealing: (1) that
while the United States claimed ultimate sovereignty over all lands
within its territorial limits, the Indian people had ownership interests
in the lands under their control, that this land was held in common
ownership of the tribe, and that this land could only be acquired from
or taken from the tribes by purchase or conquest; and (2) a recognition
that Indian tribes were sovereign governments — a recognition that the
tribal government, the tribal leaders, had the capacity and the au-
thority to impose rules or laws to control the actions of individuals,
particularly Indian people, within the boundaries of the lands under
their jurisdiction, and a recognition that those Indian governments or
leaders had a right and power to convey title to the property under
their control.

These basic conceptions received judicial recognition in three land-
mark Supreme Court decisions.^

The Indian nations had always been considered as distinct, independent
political communities, retaining their original natural rights, as the undisputed
possessors of the soil, from time immemorial, with tlie single exception of that
imposed by irresistible power, which excluded them from intercourse with
any other European potentate than the first discoverer of the coast of the par-
ticular region claimed; and this was a restriction which those European
potentates imposed on themselves, as well as on the Indians. The very term
"nation", so generally applied to them, means, "a people distinct from others".
The Constitution by declaring treaties already made, as well as those to be
made, to the supreme law of the land, has adopted and sanctioned the previous
treaties with the Indian nations, and consequently admits their rank among
tho.se powers who are capable of maliing treaties.

*******

The Cherolvce nation, then, is a distinct community, occupying its own terri-
tory, with boundaries accurately described, in which the laws of Georgia can
have no force, and which the citizens of Georgia, have no right to enter, but
with the assent of the Cherokees themselves, or in conformity with treaties, and
with the acts of Congress. The whole intercourse between the United States and
this nation, is. by our Constitution and laws, vested in the government of the
United States.'

In 1830, Congress passed the Westward Eemoval Act ^ authorizing
the President to negotiate with Indian tribes for their removal west-
ward. Despite passage of this Act, it is clear that Congress shared the
perceptions of Justice Marshall with respect to the treaty obligations
owed the Indian tribes and recognized the inherent governmental au-
thority of the tribes within Indian country. The Final Indian Trade
and Intercourse Act was passed in 1834.^ Section 25 of that Act (what
is now known as the General Crimes Act codified as 18 U.S.C. 1152)
extended to the Indian country the Federal criminal laws which were
applicable within federal enclaves under the sole and exclusive juris-
diction of the United States. In issuing its report on that legislation,
the House Committee on Indian Aiiairs stated :

It will be seen that we cannot, consistently with the provision of some of
our treaties, and of the territorial act. extend our criminal laws to offenses com-
mitted l)y or against Indians, of which the tribes have exclusive jurisdiction;
and it is rather of courtesy than of right that we undertake to punish crimes
committed in that territory by and against our own citizens. And this provision is

^Johnxon v. McTvtoah, 21 U.S. (Wheat) 543 (182.3) ; Cherokee "Nation v. Georgia. 30 U.S.
(5 Pet.) 1 (1.S31) ; Worce'ttrrv. Georgia, 31 U.S. (6Pet.) 515 (1832).
« 31 U.S. (6 Pet.) at 558. 560, 561.
T Aet of Mnv 28. 1830, ch. 148, 4 Stat. 411.
8 Aet of June 30, 1834, ch. 148, 4 Stat. 411.

147

retained principally on the ground that it may be unsafe to trust to Indian law
in the early stages of their Government. It is not perceived that we can with
any justice or propriety extend our laws to offenses committed by Indians
against Indians, at any place within their own limits.'

It has been contended that the extension of Federal criminal law
to the Indian country by section 25 of the Final Indian Trade and
Intercourse Act ousted or preempted the jurisdiction of the tribes.
This contention has been rejected by the courts.^" At the time this law
was enacted, treaties with tribes commonly provided that the tribes
turn over "bad metf' among them for punishment by the United States.
This was in keeping with Secretary Knox's policy of placing the
United States between the Indian tribes and the non-Indian people to
act as a buffer. It would appear that this section should be read as an
effort by the United States to comply with its treaty commitments
to the tribes to punish offenses committed by non-Indians against
Indians.

A companion bill to the Final Indian Trade and Intercourse Act
would have provided for the establishment of an Indian State in the
West. One feature of this bill is that it would have provided for tribal
assumption of the enforcement of the laws set forth in the Final In-
dian Trade and Intercourse Act and enforce them in their own tribu-
nals. In fact, the only restriction of the penal power of the tribe would
have been with respect to the death penalty which would have been
subject to review by an appointed Governor prior to execution.^^ It
appears the basic concept of an Indian State was agreeable to the leg-
islators, but the bill was opposed for other reasons and was not en-
acted. Later bills were also introduced but were resisted by the In-
dian tribes who considered such organization as a weakening of their
own inherent authority .^^

Westward Removal and Reservations

It has already been noted that the argument of the State of Georgia
for extinguishment of the Indian title to lands and the abolition of
tribal government within her boundaries was premised on the theme
that it was not possible for one sovereign to exist within the bound-
aries of another sovereign. To preclude the repetition of any such
claims in the future, the treaties negotiated with the tribes removed
westward specifically provided that the lands reserved to them in the
treaties should never be included within the bounds of any State or
territory. This provision became "boiler plate" language included in
many of the treaties negotiated with Indian tribes over the next years.
It also led directly to the inclusion of "disclaimer" clauses which ap-
pear in the territorial and State enabling Acts and constitutions.^'

» House Report No. 474, 23d Cong., 1st sess.. June 30, 1834. p. 13.

1" Oliphant v. Schlie, No. 74-2154 (9th cir., decided Aug. 24, 1976).

" House Report No. 474, 2.Sd Cong., 1st sess., .June 20, 1834.

^ For an excellent treatise on the numerous bills proposed on this subject nnd the Indian
resistance to them, see "The Formation of the State of Oklahoma" by Roy Glttinger (Univ
of Oklahoma Press, 1939).

1" *'ee Rev. Stat.s. »1839 cited in vol. I, Kappler's Affairs, Laws and Treaties p 3
and the Act of .Tan. 29. 1861 (12 Stat. 126) admitting the State of Kansas into the'Union
in which it is provided that the lands reserved to the tribes by treaty should not be included
Within the territorial limits or jurisdiction of the State until the tribes assented to such
inclusion. These disclaimer clauses and the evolution of State jurisdiction within Indian
reservations is examined in an article entitled "Development of Tripartite Jurisdiction in
/?«i.^.'^ Country" by the Indian Civil Rights Task Force, vol. 22, No. 3 Kansas Law Review,
(19(4 ed.) pp. 351-385.

148

Despite the apparent respect which Congress, the Executive, and
the courts manifested in this period toward the political and leo^al
rights of the Indian tribes and nations, the relative power of the
United States and the growing requirements for more and more land
foreshadowed the Indian tragedy over the next 40 years. The massive-
influx of European immigrants, the gold rush to California, the devel-
opment of a rail system capable of transporting the products of the
West to the markets of the East doomed the Indian people to a reser-
vation system imposed through military force. This upheaval and its
social consequences are well developed in the historical chapter of this
report.

One of the principal products of this period from the mid-1830's
through the 1870's was the decline of the traditional tribal govern-
ments. This was j^articularly true for the plains tribes and the war-
like tribes whose traditional way of life was drastically altered, who-
fell under the most direct military rule, and who were subjected to the
most oppressive of regulations. It was probably less true of the non-
nomadic tribes who remained in their traditional grounds and con-
tinued to survive through the same enterprises and the same cultural
settings which had always sustained them. And it was particularly
not true for the Five Civilized Tribes situated in Indian Territory
(now eastern Oklahoma) who had tightly drawn treaties with the-
United States and whose governments and economies were similar tO'
those of the States and territories, and of the Pueblos who appear to
have been out of the mainstream of Indian administration at this
time.

Allotment and AssbnUation Period

By the end of the 19th century, Federal policy flowing from the
Dawes Act of 1887 dictated that the solution to the 'Tndian problem"
required that Indian reservations be broken up, that the communal
holdings of the Indians be individualized into allotments in severalty,-
and that the governments of the tribes l)e terminated. For most Indian
tribes, this policy was pursued through the land allotment process and
through the overlay of administrative rules and regulations designed
to stamp out the Indian way of life. The tribes in the Indian Territory
presented a different problem. Their treaties with the United States
were explicit, their governments and their economies were strong, and
their reservation or national boundaries adjoined each other so it was
not possible to simply "absorb" them within the boundaries of a State.
The solution for these tribes lav in specific legislation. In 1898, Con-
gress enacted the Curtis Act " stripping those tribes of most of their
governmental powers, and in 1906 it enacted further legislation^^
to provide for the final disposition of the affairs of those tribes.

It is ironic that this period saw the demise of the strongest, most
sophisticated Indian police and judicial systems, i.e., that of the Five
Civilized Tribes, and also witnessed the birth of the tribal court sys-
tem—originally an administrative device of the Bureau of Indian
Affairs whose purpose at the time of its establishment was to control
the activities of Indians within their reservations and aid in the sup-
pression of their culture, but which has since been taken over by the

" Act of June 28, 1898, ch. 517, 30 Stat 495. . -

IB Act of Apr. 26, 1906, ch. 1876, 34 Stat 137.

149

tribes and now represents one of the most important manifestations of
their sovereign power.

Indian Reorganisation Act and Contemporary Legal Assumptions

In the period following the near termination of the Five Civilized
Tribes, tribal governments lay relatively dormant. It was not until
1934 with the passage of the Indian Keorganization Act ^^ that tribal
government received any encouragement from the Federal authorities
to reassert any governmental functions. The purpose of this Act, and
its companion, the Oklahoma Indian Welfare Act of 1936, was to put
an end to the allotment era ; to restore to the Indian people an eco-
nomically viable land base; to provide the Indian people with suffi-
cient credit though a revolving loan fund that they might develop
their own resources and business institutions ; to recognize the rights
of the Indian people to be self-governing ; and to provide through the
employment preference policy for eventual control by Indian people
of the Federal agencies for protection of their resources and delivery
of services to them.

In October 1934, immediately following passage of the IRA, the
Solicitor's Office at the Department of the Interior issued an opinion
discussing at length the powers of Indian tribes.^^ This opinion exam-
ined a multitude of issues including such topics as: (1) the origin of
tribal authority and the rule by which its limits are determined,
i.e., that except as Congress has expressly restricted or limited the
internal powers of sovereignty vested in Indian tribes, such powers
are still vested in the respective tribes ; (2) the right of tribes to deter-
mine their own form of government; (3) the right of tribes to deter-
mine their own membership, except in matters where rights to "Fed-
eral" property are involved; (4) the right to control descent and dis-
tribution of non-trust property; (5) powers of taxation; (6) the
power to exclude nonmembers from the territory subject to the tribes'
jurisdiction; (7) police power of tribes over the property and con-
tracts of its members; and (8) the powers of tribes in the administra-
tion of justice.

Contemporary with this opinion was another in February 1935,
discussing the authority of the Secretary of the Interior to issue rules
and regulations applicable in Courts of Indian Offenses to govern the
conduct of Indians within reservation bonndarios.^* This opinion is
particularly illinninatinc;. It begins with the admission that there is
no statute which vests the Secretary of the Interior with specific au-
thority to ''govern the conduct of Indians on the reservations or to
promote law and order thereon in any way at all." The opinion, how-
ever, finds that the Secretary has the authority to promulgate rules and
regulations governing the conduct of Indians because: (1) Congress
lias annually appropriated money for the support of a tribal police sys-
tem : (2) the practice of Secretarial promulgation of such regulation is
long standing and has never been challenged; (3) that the Secretary
has a general duty to assure peace and tranquillity within Indian reser-

^" Act of .Tune 18, 1934, ch. 57fi. 48 Stat. 9S4.

'" Sol. Op. of Oct. 2.'), 10.':4 (.00 Interior Decisions 14) entitled Powers of Indian Tribes.
" Sol. Op. of Feb. 28, 1935 (unpublished) entitled Secretary's Power to Regulate Conduct
-of Indians.

150

vations; and (4) that Indian tribes have the inherent power to govern
the condnct of their own members, and, due to the policies of the Fed-
eral Government which weakened those governments, it became neces-
sary for the Secretary to assume the exercise of those powders in tlie
absence of the tribe.

The contrast in the assum.ptions of the 1934 and the 1935 opinions is
staggering. The first is strongly assertive of the inherent authority of
the tribes; the second describes a social and governmental structure
that had been brought to its knees through the conscious direction of
Federal policy. The truth lies somewhere in between.

Out of these opinions and out of the history of our Federal policy, a
policy which specificall}^ stripped the most powerful tribal govern-
ments of tlieir authority, i.e., the Five Civilized Tribes, and a policy
which created administrative institutions in the name of the tribes to
govern the conduct of the subjects of that bureaucracy— out of this
history it is not surprising to find that the agency charged with the
primary authority for the administration of Indian affairs should have
conceived of the power of Indian tribes as being limited to the mem-
bership of their own tribes.

Post Indian Reorganization Act

The modern history of tribal government can probably be traced
from the date of enactment of the Indian Reorganization Act of 1934.
It is the history of an effort to struggle free of bureaucratic concep-
tions of limited tribal powers, a history of bureaucratic entanglement
in the governmental process of the tribes, a history that saw tribes run
the gamut of termination when extinction awaited the most successful,'
a history that saw the policies of the United States burst forth into
social service and regulatory programs, many of which overlooked the
fact of tribal existence, and yet a history which despite these incredible
obstacles has found a judicial reaffirmation of the most important
legal concept in Indian affairs, the sovereignty of the tribe, and a his-
tory which in recent years has seen the emergence of legislative pro-
grams truly designed to provide for genuine tribal self-determination.
It is this history which brings us to the crossroads which Indian tribes
and the United States Congress confront today.

The Indian Reorganization Act of 1934 and the Oklahoma Indian
Welfare Act of 1936 manifested a positive attitude on the part of
Congress toward Indian tribes and their development, but such out-
ward manifestation was somewhat misleading. In 1937, Senators
Wheeler and Frazier cosponsored a bill to repeal the 1934 Indian Re-
organization Act.^^ The bill did not clear the committee. In 1943, the
Senate Committee on Indian Affairs issued a "'Partial Report" call-
ing for the complete dismemberment of the Bureau of Indian Affairs,
distribution of trust assets to individual Indians, and transfer of re-
sponsibility to the States.^" In 1952, the House Committee issued a
lengthy report supplying an overview of Indian affairs which called
for, among other things, termination of the trust relationship with
Indian tribes over a graduated period of time and dispersal of pro-
grams administered by the Bureau of Indian Affairs among other

19 S. 1736, 75th Cong., 1st sess.

20 Senate Report No. 310, 79th Congress, 1st sess. (1943).

151

Federal agencies.^^ In 1958. Congress adopted H. Con. Res. 108 ex-
pressing its policy of favoring termination of the Federal relationship
"with the tribes.

The terminationist sentiments of Congress and the desire to get the
Federal Government out of the Indian business manifested itself in
the 1940's with passage of special legislation transferring jurisdiction
over civil and criminal matters to specific States.-- In 1952, Public
Law 83-280 '^ was enacted providing a genera] authorization and pro-
viding a procedure for any and all States so desiring to extend their
jurisdiction to Indian country and all Indians therein. This legislation
did not require any consultation with the Indian tribes which might
be affected.

Throughout the 1950"s and into the early 1960's, the terminationist
philosophy guided much of the Federal policy relating to Indian af-
fairs. In 1953, Congress passed the Meiiominee Termination Act,^* the
first of many such termination acts. But despite this terminationist
bent on the part of Congress, tribal government continued to function
and judicial decisions relating to powers of Indian tribes again ap-
peared in the pages of the legal reporters.

In a series of decisions between 1956 and 1961, it was held that In-
dian tribes are sovereign entities endowed with the power to establish
courts and pass laws governing the conduct of their members ; -^ that
tribes have the power to impose taxes upon non-Indians using tribal
property, a power free of the Fifth Amendment restraints applicable
to non-Indian governments ; -^ that tribes could enact legislation reg-
ulating the use of peA^ote in religious ceremonies and that First Amend-
ment restraints were not applicable to Indian governments,^^ and that
in the absence of compliance with Public Law 83-280, the courts of a
State could not assert civil jurisdiction over an Indian for a transac-.
tion with a non-Indian which occurred within the boundaries of a
reservation since such an assertion would constitute an infringement
upon the rights of self-government.^^

By the early 1960's. the concept of termination was in disrepute and
was abandoned. For the first time, general Federal legislation relating
to domestic assistance programs began to include Indian tribes and
Indian reservations within their framework.-^ The number of Federal
agencies involved in Indian affairs proliferated and through grants
and contracts moneys became available to tribes which enablecl them
to devote substantially more time and attention to their governmental
affairs.^"

The question of tribal government and the relationship with State
and Federal governments also came under congressional scrutiny. In
1961, the Senate Subcommittee on Constitutional Rights focused its
attention on this subject, and in 1964 issued a report setting forth

=^ House Reports, vol. 8, No. 2503, 82d Congress, 2d sess., entitled "Investigation of the
Bur°nu of Indian AfpTirs."

22 Report of Task Force No. 4, pp. 8-9.

=3 Public Law 83-280, 83d Cong., 1st sess. (1953), 67 Stat. 588, codified as IS U.S.C. 1162
and 2S U.S.C. 1360.

=* .\ct of June 17, 1954, 68 Stat. 250.

^ Iron Crow v. OqlaJa Sioux Trihe, 231 F. 2d 80 (Sth cir., 1956).

-« Bnrta v. OqlaJa Slioiir Tribe. 259 F. 2d 553 (8th cir.. 1058).

^ Xatwe American Church v. Navajo Triijal Council, 272 F. 2d 131 (10th cir., 1959).

-'' Williams v. Lee, 358 U.S. 217 (1959).

2» Report of Tasic Force No. 9. part III, pp. 15-16; Schifter, "Trends in Federal Indian
Administration". S. Dak. Law Rev., vol. XV (1970K

* Task Force No. 2 discusses funding sources of tribal goyernments at length.

152

findings critic<al of the manner in which States had performed their
obligations under Federal jurisdictional grants to them under Public
Law 83-280.^^ That report also examined the law relating to the sov-
ereign status of Indian tribes, noted the decisions holding that tribes
were not subject to the restraints of the U.S. Constitution, and listed
certain criticisms of the tribal and the BIA judicial systems. Finally,
it strongly citicized the paternalistic control which the Department
of the Interior exercised over tribal government through the process
of requiring Secretarial approval over tribal codes and constitutions.
Legislation was introduced in 1965 which, in revised form, was en-
acted into law in 1968.^^ This Act imposed broad statutory restraints
upon tribal governments similar to but not identical with the Bill of
Rights of the U.S. Constitution, provided for review of actions result-
ing in detention by Federal courts by way of habeas corpus,^^ restricted
any further acquisition of jurisdiction over Indians and Indian coun-
try by States without first obtaining the consent of the tribes, and
provided a means for State retrocession of jurisdiction to Federal
authorities.

Judicial decisions since 1968 have continued to adhere to the prin-
ciples of earlier cases affirming the self-governing authority of Indian
tribes and restricting the power which States may exercise within the
boundaries of Indian reservations. Thus, in the absence of compliance
with the governing Federal statute, States may not assume either
criminal or civil jurisdiction over Indians for activities within Indian
reservations,^* their power to impose taxes on Indian-owned property
is precluded,^' they may not impose income taxes on income derived
by an Indian from employment within a reservation,^^ and their
power to impose sales taxes on Indian merchants within reservations
is limited.^'' In addition, the States are generally without authority
to regulate the manner in which Indians use their lands within reser-
vation boundaries,^^ they have no authority over domestic relations of
Indians within reservation boundaries,^^ and they are without power
to impose their fish and game laws over Indians within reservations.*"

Wliile these decisions speak in terms of limitation of the power of
State government, other decisions and administrative rulings issued
since 1968 have moved to affirm tribal authority in such matters. Thus,
it has been held that in the absence of some limitation found in the
tribal constitution or laws, tribes may enforce their laws regulating
hunting and fishing within the reservation.*^ Their power to authorize
hunting or fishing either by Indians or non-Indians upon trust prop-
erty within the reservation operates to the exclusion of State laws : *-

31 Stimmarv Renort on Constitutional Rights of the American Indian (1964). See also,
Ta^k Force No. 4. ch. II D, pp. 15-24.

•''2 .\ct of Apr. 11. lOOS, 82 Stat. 77. 2.5 U.S.C. l."?01 n 134.3.

'"In fnct, the courts have held that their .iurisdiction is much hroader than just habeas
corpus. See Task Force No. 4. pp. 129-150, and Task Force No. 9, pp. 40-45.

'* KennerJy v. District Court, 400 U.S. 423 (1971).

^' Brynn v. Itasca County, U.S. 96 S. Ct. 2102 (1976K

"8 McClanahnn v. Arizona State Tax Commission, 411 U.S. 164 (1973).

3T Mne V. Confederated Salish and Kootenai Tribes, U.S. , 48 L. Ed. 2d 96

(1970).

3« Santa Rosa Band of Indians v. Kin^s County, 532 F. 2d fi.55 (9th cir., 1975).

39 Fisher v. District Court, U.S. , 47 L. Ed. 2d 106 (1976). See Task Force No. 4,

pp. 85-S7.

*" T.osk Force No. 4, pp. 5S-65.

« Oupchan Tribe v. Rowe, 521 F. 2d 408 (9th cir., 1976). See Task Force No. 4, pp, 58-67.

« CoIviUe Tribe v. State, No. C-75-146 (E.D. Wash., 1976) ; Eastern Board of Cherokee
V. North Carolina Department of Nat. and Econ. Resc, No. BCC 76-65 ( W.D.N, C, 1976),
appeal docketed 4th cir.

153

tlieir power to assert criminal jurisdiction over non-Indians for ac-
tivities within the reservation occurring upon trust land ^^ and upon
non-trust land ^* has been affirmed, and their power to impose taxes
upon non-Indians users of trust assets has been reaffirmed.*^ Their
authority to impose land use regulations upon scattered fee land situ-
ated within the reservation boundaries has been favorably reviewed
and affirmed/^ and the general authority of the tribes to assert civil
jurisdiction over non-Indians for matters involving Indians within
1-eservation boundaries has been affirmed in dicta by the Supreme
Court.*^

The exact parameters of the respective jurisdiction of States and
tribes over people and property within the boundaries of Indian res-
ervations has not yet been determined. Some of the cases noted above
are still in the courts awaiting review, either at the circuit court or
Supreme Court leveL Other questions, particularly those relating to
the power of States to impose leasehold interest taxes and other regu-
latory laws such as zoning, environmental controls, business licensing,
etc., upon non-Indian lessors of trust lands of Indians, are also under
challenge.

Sumviary

The question of jurisdiction of tribal governments has grown in-
creasingly complex in recent years. Tribal governments are emerging
from an essentially dormant period forcibly imposed upon them by
Federal policies directed toward their ultimate destruction. The tribes
are beginning to assert those governmental powers necessary to take
their proper place in the role of governments within the United
States. The powers they are seeking to assert are no more and no less
than those of any local sovereign of these United States. The objec-
tives they seek to attain are peace and tranquillity within the reserva-
tion boundaries and economic independence which will permit them to
operate free of the Federal purse strings without fear of termination.

Numerous problems confront the tribes in this effort. The claimed
authority of the Secretary of the Interior to pass judgment upon the
validity of powers claimed by the tribes has prevented them in the past
from obtaining judicial determination of their rightful authority. The
continued indifference and ignorance of Federal agencies which sprang
into existence at a time when tribal government was at its weakest has
caused a host of laws to be written which conflict with the inherent
governmental authority of tribes.

The resolution of these issues is complicated by the varying land
distribution patterns within the different reservations, the difference
in physical, economic and human resources between small tribes and
large tribes, differences in the availability and value of natural re-
sources over which the various governments are contending for con-
trol, and differences in proximity to large metropolitan areas.

*'-Oliphant v. Schlie, No. 74-2154 (9th cir., 1976). Petition for certiorari has been fflpti
with the Supreme Court.

**^Be'^arde v. Morton, ^o. C-74-68.35 JWD^ Wash., 1975), appeal pending 9th clr. No.

Olipho

7.5-3.319. This case may be consolidated with OUphant before' the Supreme Court" The 9th
circuit has stayed proceedings awaiting the decision on the petition of cert, filed In OUphant.

*5 Sol. Op. dated Oct. 13, 1976, to the Sec. of Interior.

" Ibid.

" U.S. V. Mazurie, 419 U.S. 544 (1975). See also Task Force No. 4, pp. 89-9'4

92-185—77 11

154

Conclusions

There is an established legal basis for tribes to exercise jurisdiction
over non-Indians. • j. -i i

There has been a demonstrated need for the exercise of some tribal
jurisdiction over non-Indians within Indian reservations.

The multiplicity of circumstances and variance in resources and
capabilities of the tribes makes it undesirable that Congress attempt
to impose a uniform solution to the jurisdictional authority of Indian

tribes.

The administrative decisions, the judicial opinions and the authori-
ties of tribes thus far asserted reflect a conservative approach to
defining the parameters of jurisdiction and authorty of tribal govern-
ments and that such case by case determination is preferable to at-
tempting any legislative solution.

The provisions of the 1968 Civil Rights Act supply safeguards and
remedies to persons aggrieved by actions of tribal government which i
are adequate to the concerns expressed by non-Indians at this time.

In the event any substantial problem arises in the future, the Con-
gress has ample authority to impose whatever legislative solution may
be required.

Recommendations

The Coimnission recommends that :

The long term objective of Federal-Indian policy be the develop-
ment of tribal governments into fully operational governments exer-
cising the same powers and shouldering the same responsibilities as
other local governments. This objective should be pursued in a flexible ■
manner which will respect and accommodate the unique cultural and
social attributes of the individual Indian tribes.

No legislative action be undertaken by Congress in relation to tribal
jurisdiction over non-Indians at this time.

B. SOURCES OF TRIBAL POWER

The powers of tribes derive from two sources, the first and by far
the most important being the original sovereignty of the tribe; the
second being the authority derived from their ownership of their
lands.

Sovereignty

The sovereign authority of a tribe was first judicially recognized in
Worcester v. Georgia,^^ a decision in which it was held that the laws
of the State of Georgia could have no application within the bound-
aries of the Cherokee Nation, even though that Nation lay within
the exterior boundaries of the State. The inherent sovereignty of
Indian tribes has been repeatedly reaffirmed by the Federal Judiciary
ever since that decision.

In Ex Parte Croio Dog^^^ it was held that neither Federal nor ter-
ritorial laws pertaining to murder were applicable to an offense by
one Indian against another Indian within Indian country, such an

« 31 U.S. (6 Pet.) 515 (1832).
*»]09 U.S. 556 (1883).

155

offense bein^ by the laws of our Xation ^Yitl^in the sole and exclusive
jurisdiction of the Indian tribe. In Talton v. Mayes^^^ it was held
that the requirements of the United States Constitution pertaining to
the form of grand jury indictments were not applicable to procedures
in the courts of the Cherokees since they were not a party to the
Constitution, derived no authority from it, and were subject to none
of its restrictions. In U.S. v. Qmver^'^ it was held that Federal laws
pertaining to adultery could not be applied to an offense between an
Indian and a non-Indian, jurisdiction over such conduct reposing
solely in the tribe. In Iron Crow v. Oglala Simioc,^^ it was held that
the tribal court of the Oglala Sioux Tribe was an arm of the sovereign
tribal government, not an instrumentality of the Federal Government,
and that as such a sovereign instrument, it had the power to apply
the laws of the tribe and punish an Indian for the offense of adultery.
In Native American Church v. Navajo Tribal Goiincil^^ it was held
that the First Amendment of the U.S. Constitution was not applicable
to the Xavajo Tribe and the tribe was not barred thereby from enact-
ing an ordinance banning the use of peyote in religious ceremonies.
This decision described the legal status of an Indian tribe as being
superior to that of a State since the tribe was not a party to the U.S.
Constitution and had surrendered none of its powers to the central
government under that document as had the States of the Union. In
'Williams V. Zee,^* it was held that the courts of the State of Arizona
could not assert jurisdiction over a transaction between an Indian
and a non-Indian occurring within the boundaries of the Navajo
Reservation. To allow such jurisdiction would infringe upon the
sovereign power of the tribe to self-government, a right protected by
long standing Federal statutes. Only by strict compliance with the
Federal statutory procedures for securing such jurisdiction could the
State acquire such authority. In McGlanohan v. Arizona State Tax
Commlsslon.^^ it was held that the State of Arizona could not impose
its income tax upon the income of an Indian derived from employment
within the Xavajo Reservation. It was no answer that the imposition
of such a tax might not interfere with the operation of the govern-
ment of that tribe. Tlie right to self-government — the right to be
free of the application of State law — pertained not only to the tribe
as a government, it applied to every individual member of that tribe.
And, most recently, in U.S. v. Mazurie^^ the Supreme Court upheld the
authority of the tribes of the Wind River Reservation in the State
of Wj'oming to regulate the sale and dispensation of liquor under
tribal license withm Indian country under the authority of Federal
law. The defendant was a non-Indian and the sale in question occurred
upon fee patent (nontrust) land, but the location of the bar was in
near proximity to Indian-owned land in a community setting which
had a significant Indian population. The only question before the
Court was the power of the Federal Government to delegate to the

«> 163 U.S. 376 (1896). .

« 241 U.S. 602 (1961). ^

62 231 F. 2d 89 (8th dr.. 1956).

^ 272 F. 2d 131 (10th dr., 1959).

"358 U.S. 217 (19r.9).

^Mll U.S. 164 (1973).

"419 U.S. 544 (1975).

156

tribe such a regulatory power but stated in dicta tliat it appeared
tliat the tribe could exercise such regulatory power without benefit
of Federal law on the basis of its own inherent sovereignty.

From these decisions, it simply cannot be questioned that the power
of a tribe springs from its own original, inherent sovereignty — a
power which predates the coming of the European to this continent,
predates the signing of the Declaration of Independence or the
adoption of the U.S. Constitution, a power which has been repeatedly
affirmed and recognized in our course of dealing with Indian tribes
through a treaty process, through our Federal statutes and through
our judicial decisions. The only question open to discussion is the
scope and extent of that power. That question will be considered in
other sections of this chapter.

Pollers Stemming From Land Ownership

A second source of tribal power springs from the tribal ownership
of their lands. Many administrative opinions and Federal court deci-
sions, particularly those dealing with the power of tribes over non-
Indians or Indians who are not members of the tribe, are premised
on the power of the tribe to exclude persons from the reservation
or territory under the jurisdiction of the tribe. This has led to a con-
siderable degree of confusion, particularly in administrative opinions
issued in the period immediately after passage of the Indian Eeorgani-
zation Act in 1934, the result of which was to perceive limitations
on tribal power which would not be present if the power were
premised on "sovereignty".

The earliest recognition of the power of Indian tribes to exclude
non-Indians or nonmembers from their territory is found in an opinion
of Attorney Wirt in 1821:

So long as a tribe exists and remains in possession of its land, its title and
possession are sovereign and exclusive ; and there exists no authority to enter
upon their lands, for any purpose whatever, without their consent. * * *
Although the Indian title continues only during their possession, yet that pos-
session has been always held sacred, and can never be disturbed but by their
consent. They do not hold under the States, nor under the United States ;
their title is original, sovereign, and exclusive. We treat with them as separate
sovereignties ; and while an Indian nation continues to exist within its acknowl-
edged limits, we have no more right to enter upon their territory, without their
consent, tban we have to enter upon the territory of a foreign prince.*^

A common feature found in treaties throughout the entire treaty-
making period (i.e., until 1871) is a right of safe passage for non-
Indians through the Indian country coupled with a prohibition against
non-Indian settlement upon such lands. The Trade and Intercourse
Act of 1802 ^^ required that any non-Indian entering Indian country
must have a passport. This provision was relaxed in the Trade and
Intercourse Act of 1834 ^"^ but a somewhat similar provision authoriz-
ing Federal officials to remove persons who w^ere not "legally" within
Indian country was reenacted in 1858 *^° and was not actually removed
from the book of statutes until 1934.^^

5T1 Op. A.G. 465 (1821).

68 Act of March ,30, 1802, 2 Stat. l.-^Q.

69 Sec. 6, Act of June 30, 1S.34. 4 Stat. 729.

•0 Act of .Tune 12, 18.58, 11 Stat. 329. 3.32 ; Rev. Stat. 2149 ; 25 U.S.C. 222.
«i Act of Mav 21, 1934, 42 Stat. 787. See Cohen, Handbook of Federal Indian Law (1940
ed.), ch. 4, p. 73, ut. 73 and p. 76.

157

In the latter part of the 19th century, several administrative
opinions and judicial decisions were rendered reflecting the blur which
crept into the legal analysis of the source of tribal powers. In 1855,
Attorney General Gushing issued an opinion affirming the general
jurisdiction of Indian tribes over all persons and things within the
territorial limits :

The United States assure to the Choctaw nation "the jurisdiction and govern-
ment of all persons and property which may be within their limits west, * * *
and secure said Choctaw nation from and against all laws except such as from
time to time may be enacted in their own national councils, not inconsistent
with the Constitution, treaties and laws of the United States, and except such
as may be, and which have been, enacted by Congress, to the extent that Con-
gress, under the Constitution, are required to exercise a legislation over Indian
affairs." Can there be anything more explicit? The general rule is competency
of the local jurisdiction, saving exception. Exception is to be shown. If a thing
be not taken out by exception, it remains in the general rule. Here, the ques-
tions of exception are, first, the universal one of the Constitution, treaties, and
laws of the United States; and secondly, the special one — which being included
in the universal one, it did not need to specify — of acts of Congress regulating
the affairs of the Indians."^

For reasons related to treaty negotiations, the Attorney General
concluded that the Choctaw Tribe did not have criminal jurisdiction
over non-Indians within the Indian country but did have full and
complete civil jurisdiction over all persons and things within their
territory. The significance of the opinion is that it accepted as the
beginning point of analysis the proposition that Indian tribes are
endowed with all of the powers of any sovereign and that those
powers remained except as they may have been taken away.

Wliilo continuing to affirm tribal power over non-Indians, judicial
decisions and administrative opinions toward the latter half of the
19th century regarding powers of the Five Civilized Tribes some-
times premised this power of the tribe on previously recognized au-
thority to remove or expel non-members. Thus, in Maxey v. Wright ^'^^
it was held that tribes might impose license fees upon non-Indian at-
torneys for the privilege of practicing law before tribal courts, and
in an opinion of the Attorney General issued in 1900,^* it was held
that the tribes could impose taxes for the privilege of conducting busi-
ness within their borders. This opinion and decision were premised on
the power of the tribe to either deny access of nonmembers to their
facilities or the power to impose conditions upon the entry of non-
members into their territory. But at this same time, the Supreme
Court affirmed a decision of the District of Columbia Circuit, Moms
V. Hltchrock '^'' placing the tribal power of taxation of nonmembers
within the tribal jurisdiction squarely on the basis of the sovereign
authority of the tribe — not the power to expel or remove.

See also Buster v. Wriqht,^^ and the decision of the Attorney Gen-
eral in an opinion regarding the riirht of the Cherokee Nation to im-
pose an export tax on hay grown by a nonmember within the limits
of that nation.*'^ As stated in Morris v. Hitchcock :

82 7 OP A.G. 174. 180-lRl (1855).

« 5^ S.W. (Ind. Terr., 1900). aff'd, 105 F. 1003 (CCA. 8, 1900).
"* 23 Op. A.G. 21-1. 219 (1900).
M24 App. D.C 565. aff'd. 194 U.S. 3S4 (19014).

"«S2. S.W. 855 (Ind. Terr., 1904), aff'd, 135 F. 947 (CCA. 8, 1905), app. dlsm., 203 U.S.
590 (1906)

6' 23 Op. A.G. 528 (1900).

158

A government of this kind necessarily has the power to maintain its existence
and effectiveness through the exercise of the usual power of taxation upon all
property within its limits, save as may be restricted by its organic law. Any
restriction in the organic law in respect of this ordinary power of taxation, and
the property subject thereto, ought to appear by express provision or necessary
implication.^^

These opinions were examined at length in the Solicitor's opinion
of October 25, 1934 ®^ referred to in the section on sovereignty. The
primary emphasis on the opinions issued immediately following the
Indian Reorganization Act of 1934/° regarding powers of Indian
tribes, rested on the power to condition entry onto Indian lands.

Yet repeatedly, the Solicitor's Office encountered situations requiring
some identifiable regulatory authority, either Federal, State, or tribal,
to regulate the conduct of non-Indians or nonmembers within Indian
country that could only be accounted for by finding some power in-
herent in Indian tribes that arose from some source other than the
simple power to expel or remove. Thus it was held that the tribes might
seize stray cattle of a non-Indian which trespassed upon tribal prop-
erty and sell the same at a public auction in order to cover the expenses
of the tribe,''^ that the tribes might confiscate unlicensed dogs of non-
Indians in furtherance of tribal police powers,^^ that tribes might seize
and forfeit the fishing equipment of a non-Indian fishing within the
reservation in violation of tribal laws,^^ and that a tribal court could
enter a decree of divorce in a marriage between an Indian and a non-
Indian.'^*

Clearly, the conception that the power of a tribe was limited to its
power of removal from the reservation was not adequate to the law
enforcement or regulatory needs o,f government in Indian country.
As previousl}^ noted, with the Iron Groio decision in 1956,'^^ the sov-
ereignty of the tribe as the source of its authority was again recognized.
The decisions recognizing this authority and exploring its parameters
in conjunction with the persons over whom such authority extends are
explored in the prior section.

The Federal Instrumentality Concept Versus Tribal Sovereignty

In recent years, a new concept has found its way into the decisions
of the Federal courts, i.e., that tribes are an "instrumentality" holds
that the tribes and their governments are the chosen instruments
through which the Federal Government has elected to carry out its
Indian policies. It is this theory or concept which has been employed
in cases shielding tribal government and tribal members from the
application of State laws which would encroach upon the rights of
self-government guaranteed to the Indian people under treaties and
statutes.''^

08 24 App. D.C. 565, 593, quoted at 55 I.D. 48.
"55 I.D. 14. 46-4S.
""> Act of June 18, 1934, 4S Stat. 984.
»i Sol. Op. to Comm. of Ind. Affairs, Mav 13, 1941.
T2 Sol. Op. to Comm. of Ind. Affairs, Feb. 17, 1939.
■73 Op. Asst Sec, Feb. 12. 1943, 58 I.D. 331, 333-34.
" Memo Sol. to Comm. Ind. Affairs, Feb. 11, 1939.
" Supra, note 2fi.

■"'Williams v. Lee, 358 U.S. 217 (1959) ; Ariz, ex rel. Merrill v. Turtle, 413 F. 2d 683
(lOth cir., 1968) ; McClanahan v. Ariz. State Tax Comm.. 411 U.S. 164 (1973).

159

The second theory of "federal instrumentality" holds that the
tribes, particularly tribal courts, are an arm of the Federal sovereign;
in other words, a federally created instrumentality. This concept has
emerged in the area of criminal law, but it has grave implications for
the entire Federal-Indian relationship.

The concept of tribal courts as a federally established instrumen-
tality first surfaced in the case of CoTlif.ov:er v. Garland^ a decision
of the 9th Circuit Court of Appeals which held that a writ of habeas
corpus would lie in Federal court to test a judgment of conviction in
a tribal court." The judgment of this court was based on an extensive
review of the history of the development of the tribal court system
and its intimate involvement with the Bureau of Indian Affairs. How-
ever, in holding that the tribal court was in essense a Federal instru-
mentality, the 9th Circuit placed itself in direct conflict with a prior
judgment of the 8th Circuit Court of Appeals entitled. Iron Croio v.
Oglala Sioux Tribe^ which reviewed the same history of tribal courts
of the tribes.'^

The 1968 Congress statutorily extended to all persons the right to
test, by way of habeas corpus, the judgments of tribal courts in Fed-
eral court proceedings.' ^ As a result of this legislation, it was no longer
necessary to establish the "Federal connection" to obtain judicial re-
view of tribal court judgments, Nevertheless, in 1969. the 9th Circuit
reaffirmed its holding in GoUiflawer as a basis for Federal review.^"

The immediate problem which arises in connection with the "Fed-
eral instrumentality" doctrine is the application of the concept of
double jeopardy as a constitutional bar to prosecution of offenses in
both tribal and Federal courts. The issue was presented to the 8th
Circuit in two separate cases in 1971 and 1972.^^ In each case, the
court found other groimds for making its determination, thereby
avoiding the issue. But. in the second of the two cases, U.S. v. Kills
Plenty^ there was divided opinion, the dissent asserted that based on
CoUijlower., tribal and Federal courts should be considered "arms of
the same sovereign," thus making the doctrine of double jeopardy
and/or collateral estoppel applicable as a bar to proceedings in Fed-
eral court after a trial of the case in tribal court. The majority of the
court noted its disagreement with the dissent in a footnote, holding
that if it were to decide the issue, it would rely on its prior decision in
Iron Crow.

The most recent word on the subject, issued from the 9th Circuit in
U.S. V. Wheeler, was decided in December, 1976.^^ The case is best
summarized by quoting from the decision :

The defendant, a Navajo Indian, plead guilty in Navajo tribal court on
October IS. 1974 to charges of contributing to the delinquency of a minor and
disorderly conduct, the charges growing out of an incident tiiat had occurred
on Indian territory two days earlier. Over a year later the defendant was in-
dicted in Federal court for carnal knowledge of a female Indian under the age
of sixteen years. There is no dispute that the Federal charge grew out of the

" Cornflower V. Garland, 342 F. 2d ?.&9 f9th cir., 1965).

" Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th cir., 1958).

™ 25 U.S.C. 1.302. 1303.

» Settler v. Yakima iribal Court, 419 F. 2d 486 (9th dr., 1969), cert. den. 398 U.S. 903
(1970>.

^ U.S. V. DeMarrias, 441 F. 2d 1304 (8th cir., 1971) ; U.S. v. Kills Plenty, 466 F. 2d 240
(8th cir., 1972K

^ U.S. V. Wheeler, No. 76-1509 (9th Cir., 1976).

IGO

same incident and the same actions of the defendant as the "contributing to.
the delinquency of a minor" charge before the Navajo tribal court. Before trial,
the district court judge dismissed the indictment "on the basis that the de-
fendant (had) already once been place in jeopardy for the same offense". We
affirm.^"

The court bas=ed its prior decision on CoIU-fioweT. No mention was
made of any of the three cases in the 8th Circuit.

The implications of this decision for jurisdiction of Indian tribes
and for the power of Congress to take corrective action through legis-
lation are apparent. If the doctrine of double jeopardy is applicable
to judgments of tribal courts, there seems little doubt that either the
courts or Congress will soon strip the tribes of authority to act in any
situation which might potentially be prosecuted in Federal court. It is
simply not tolerable that a person can plead guilty in tribal court to a
minor offense and thereby preclude prosecution in Federal court for a
major offense. It is essential tliat the separate sovereignty of the tribes
continue to be recognized if the jurisdictional balance between tribal
and Federal courts is to be maintained.

The second level of this problem, the limitation on the power of
Congress to legislate in Indian affairs, is equally clear. If the govern-
mental institutions of the Indian tribes, particularly tribal courts, are
in fact federally created instrumentalities and thus arms of the Fed-
eral sovereign, there is no way that Congress can legislatively waive
the requirements of the U.S. Constitution to the instruments of its
own creation. This result would not only pertain to matters in the
area of criminal law, but also to matters in civil law. If the "Federal
instrumentality" doctrine enunciated in the Wheeler case is sustained,
then it is clear that the entire panoply of Federal constitutional law
must necessarily become applicable to the governments of Indian
tribes.

It is vitally important that the courts and Congress continue to rec-
ognize that tribes are not the creatures of Congress but are separate
and distinct sovereigns which the Federal Government has recognized.
They are domestic, dependent sovereigns. They are not federally
created instrumentalities. They are the instrumentalities through
which the Federal Government has chosen to carry out its Indian
policies. They are entitled to Federal protection — indeed, there is a
Federal responsibility to protect them — but they are not subject to all
and the same restraints which are applicable to the Federal Govern-
ment.

Recommendations

In connection with this section of the report, the Commission finds
that no legislative action is necessary at this time.

C. TRIBAL JUSTICE SYSTEMS

Overvieio

Tribal justice systems are evolving institutions which have grown
out of traditional Indian mechanisms for dispersing justice.

83 Ibid., p. 2.

161

Traditional systems survived well into the lOth centnry, and al-
though they varied considerably from tribe to tribe and region to
res'ion, they were characterized by consensual and well understood
means for 'maintaining connnunity harmony. Later on, some tribes
adopted western style, formalized institutions into their tribal sys-
tems: however, the vast majority of the tribes retained traditional
methods.

In the latter half of the 19th century, the Bureau of Indian Affairs
created within the tribal setting Indian police and a Court of Indian
Offenses. These were designed to enhance the authority of the Federal
Government and undercut that of the traditional tribal leadership. The
passage of the Indian Reorganization Act in 1934 permitted the tribes
to establish or reestablish their traditional justice systems by virtue
of the inherent sovereignty concept, the policy in the Department of
the Interior, the language of IRA. or some combination of one or more
of these. Today, traditional justice systems are emerging as viable
tribal institutions playing a significant role in the provision of justice
services on reservations. The systems vary in design, capacity, support,
and efficacy. But all require continued and expanded Federal support
and the flexibility for refinement and definition in order fully to meet
reservation needs.

Bachgj'ound

]\Iuch has changed in the manner and form of tribal government op-
eration since the arrival of western European institutions on the Amer-
ican continent. Some of the change has been evolutional, produced by
the tribes themselves; the greater change, however, has been imposed
upon the tribes by the direct and indirect operation of the United
States Government. At their present level of development, few tribal
institutions correspond to any traditional form or style. What modes
of government Indian tribes would have developed to meet the de-
mands of the changing centuries without the persuasive presence of
the Federal Government is not known; what options are open to the
tril^es other than these western modes can only be speculated upon.

In the first several hundred years of contact, tribes were for the
mo>t part able to retain their traditional governing modes. These were
highly diversified, ranging from the sophisticated confederacy of the
Iroquois — a precursor of the federal system — to informal systems of
communal consensus. To characterize all Indian tribes by any single
generalization is factually misleading. Several general observations
about Indian systems of government, in contrast to western systems,
however, are pertinent. ]\Iost western governments are formalized in-
stitutions with voluminous sets of laws and regulations, largely re-
lated to private property concepts. Indian tribes and societies gener-
ally did not consider private property as central to a government's
relationship to citizens: communal proj^crty concepts are far more
prevalent in tribal societies than are individual property concepts. Be-
cause of this, theft within tribes was "virtually unknown.-'

Rather than the representative style typical of western governments,
tribal societies were often governed by communal systems of chiefs and
elders. Leadership was often earned by performance or acknowledg-
ment and rested upon consensus and theological groimd for exercise.

162

Many different systems existed for resolving disputes and maintain-
ing order. Some tribes had warrior societies which functioned as en-
forcement mechanisms ; other tribes utilized community pressure to en-
force norms. Scorn is said to have been an extremely effective method
of enforcement. Imprisonment was unknown, and restitution, banish-
ment, and death were the major retributive sanctions utilized.

The first three-quarters of the 19th century wreaked havoc on these
traditional tribal governing bodies.®* Removal, continuous war, and
the reservation era reduced most tribes to de facto wards of the Gov-
ernment. Traditional food supplies were gone. Tribes were forced, oft
times brutally, into reservations, numbers and strength were depleted,
and pure survival from starvation placed tribes at the mercy of the
Government dole.^^ This dole was used as a frequent weapon by Indian
agents to enforce the policy of the moment.

At this point in history, several factors merged to create new mecha-
nisms for tribal governance which would eventually evolve, albeit con-
trary to the motives of the creators, into institutions for the mainte-
nance of tribal sovereignty.

A major struggle for power occurred in the 1870's and 1880's between
the civilian and military authorities for control over Indian reserva-
tions.^^ The civilian authorities, supported by many church organiza-
tions, sought ways to control the reservations without reliance on
military troops. Aside from simple bureaucratic competition, civilian
opposition to military authority was based primarily on the military
tendency to settle all matters by extermination.

In addition to the power dispute, there was a growing assimilation
fever; and law and order was felt to be a necessary component in the
job of "civilizing" the Indians: to educate; to Christianize; and to
transform the Indian economy from a subsistence hunting, fishing,
gathering and trapping system to a western style farming economy. A
system of laws was felt necessary because : "They cannot live without
law. We have broken up, in part, their tribal relationships, and they
must have something in their place." ^^

It was in this climate that federally controlled Indian police and
courts developed. Indian agents, as part of the assimilation process,
wished to further erode and undercut the remaining power and
authority of the traditional leaders and the s^^stems they represented.

Commissioner of Indian Affairs Price in 1881 referred to the new
police and court system as; "* * * a power entirely independent of
the Chief. It weakens, and will finally destroy, the power of tribes and
bands." ^^

By 1890, there were Indian police in nearly all the agencies and
Courts of Indian Offenses in two-thirds of the agencies.®^ The Indian
police and the Courts of Indian Offenses were not alwa5^s successful.^"

®* Some tribes, notably those known as the Five Civilized Tribes, specifically adopted west-
ern style institutions for governance in the late 18th and early 10th century ; these tribes,
however, were the exceptions.

85 Indian Police and Judges, at 6 (1966). Indian agents are referred to "as the local repre-
sent.itive of the TT.S. and fount of all favors."

8« Id., quoting Indian Agent Edward P. Smith (1875), at 6.

^ Id., quoting Bishop Whippel's advice to President Lincoln, at 9. Hagen also comments
"But what was to be gained by destroying the concept of communal ownership if the new
property owner had no legal machinery to protect his right?" at 5.

88 Id., at 9.

89 Id., at 27-43.

w See generally, BIA, Bureau of Law Enforcement, Indian Law Enforcement History.

163

Inadequacy of fimdino- lias always been a significant problem ; it was
not imtil 5 years after their creation that Congress provided any funds
for the courts, and then to a very meager degree. Neither the Indian
police nor the courts were able to eradicate the influence of traditional
Indian culture or Indian custom, as some of the assimilationists had
hoped. Instead, the combination was a cuiious mixture of western style
law and tribal custom, because the Indian police and Courts of Indian
Offenses exercised jurisdiction over both Indians and non-Indians. In
the early days of western expansion, the breed of whites settling on or
near Indian reservations created considerable trouble for the Indians.
The famous ''hanging*' Judge Parker described these newcomers to the
reservation areas as : "a class of men — who revel in the idea that they
have an inherent right to steal from Indians." °^

In some areas, in fact. non-Indians created the principal problems
faced by Indian police and courts. In western Oklahoma, for example,
much of the Indian police effort was directed at removing non-Indian
herds from Indian lands.

The status of the Courts of Indian Offenses within the jurisdictional
framework was unclear, and when potential test cases arose, the
Department of the Interior generally avoided the test rather than
meeting the issue.

Congress addressed the issue finally in 1934 when the Indian Re-
organization Act (IRA)°- was passed providing a SA'stem for reestab-
lishing tribal governments. The Act provided for federally chartered
institutions with constitutions and court sj'stems. Although at the
time of passage the IE A was perceived as a major shift in Federal
policy favoring tribal self-determination and ending the erosion of
tribes and their land bases, it actually provided, instead, a distinctly
western model of government for the tribes. With assistance from the
Department of the Interior, tribes were to draft their own constitu-
tions, establish their own courts and codes of laws. In practice, most
tribes using the IRA model either adopted the old system, which had,
by this time, become known as 25 CFR courts °" or adopted their
own codes and courts closely modeled on 25 CFR.

Of major importance to an understanding of tribal courts in terms
of present day issues and operations is the 196S Indian Civil Rights
Act,^* which extended certain U.S. Constitution type protections to
the operations of tribal governments and courts. The Act also congres-
sionally limited the penalties tliat could be imposed by tribal courts to
G months imprisonment and a $500 fine, or both.

The Current Justice Systems

In addition to preexisting tribal systems and 25 CFR systems,
many tribal governments have created justice systems in the context
of their inherent sovereignty, nnd under the auspices of the Indian
Reorganization Act.^^ In 1976. there were 117 operative tribal courts
in Indian country: this represents an increase of 32 courts since 1973
when there were 85.^^ In 1973, Indian tribal courts handled approxi-

" Ha^an, supra at 53.

"2 2o r.S.C. see. 461. et seq.

^ 2.5 CFR contains all the elements for the Bureau-created courts.

«■* 2.=) r.S.C. see. l.sni et seq.

^ 2.0 U.S.C. see. 461.

^ Source : National American Indian Court Judges Association.

164

mately 70,000 cases; although this caseload has increased, no actual
current figures are available. These courts and the other components
of the justice system are faced with herculean tasks and responsibili-
ties. A 1974 survey conducted by the Bureau of Indian Affairs indi-
cated that crime rates — predominantly alcohol related — on Indian
reservations were significantly higher than in rural America.®^

The 117 Indian justice systems vary considerably from one another
in both design and effectiveness. Like their non-Indian counterparts,
Indian court judges are both appointed and elected.'^® There is no uni-
form standard, but as a general rule, most tribal judges are not attor-
neys.^^ At least one tribe requires applicants for judicial positions to
pass an oral and written test on the tribe's constitution and laws.^°°
Indian tribal courts function in both criminal and civil matters. In
some areas, both the judicial and police functions are contracted from
neighboring non-Indian communities.^"^ In at least one area, a non-
Inclian government contracts law enforcement services from a tribal
police department.^"- Some tribes provide extensive representation
for indigent jiersons in tribal court; others provide none. Police
services may be provided entirely by tribal police, by BIA officers
or by a combination of BIA and tribal police. Tribal appellate sys-
tems also vary greatly. On some reservations, there is no appel-
late court system. Where tribes utilize 25 CFK Courts of In-
dian Offenses, appeals folloAv through the Department of the
Interior. Some tribes have their own appellate court system ; ^°^ others
use judges from neighboring tribes for special appeals.^"* The tribal
council may also constitute itself as the final tribal appellate system. ^°^

Any generalization about tribal courts and law enforcement sys-
tems is therefore vague by definition. These are evolving institutions
responding to tribal and community needs and operating at various
levels of sophistication. Contrary to the vicAvs of some, there does not
appear to be anything inherent in tribal justice systems that makes
them any less capable than their non-Indian counterparts in dis-
pensing justice.

However, one strong criticism of tribal government that occurred
in the 1950's and that used as a rationale for allowing States to assume
jurisdiction in Indian country (P.L. 83-280) was the perceived
inadequacy and the non-professional level of tribal justice systems.

»T Mpmorandum to the Commissioner of Indian Affairs from T. Krenske, Director, Office of
Indian Services, Mar. 13, 1975.

^'^K.g., on Gila River, judjies are elected at lar?:e for 3-year terms. Southwest Transcript
at 18. On Papago, judges are appointed bj- the council for 2-year terms. Southwest tran-
script at 119.

»» The majority of non-Indian judges at the J. P. level nationwide are not lawyers. North
V. RuKsell U.S. ■ (1976) upheld the use of such judges in a case involving the con-
viction and sentencing of a person by a judge with a high school education but without
any judicial training so long as there was the right of appeal to a court with a lawyer judge.

'"''" Mojave-Apache, Southwest transcript at 257.

!» Ak-Chin Indian Reservation uses a county judge for its tribal court judge. Interview
report.

102 Nespelem, Wash., contracts police services from the Colville Tribal Police Department,
Northwest transcript, exhibits, affidavit of members of Nespelem City Council.

!•" Yakima Nation, Northv^est transcript at 659.

104 rpjip papagos have used .Judge Rhodes from Gila River.

la* Conceptually this Is similar to the English system where the House of Lords is the
court of last resort. This process is used by the Yankton Sioux Tribe, Midwest transcript
at 144-45.

165

As one observer pointed out:

If jurisdiction was (transferred) because of inability to administer criminal
and civil jurisdiction in the early 1950's, it should have been foreseen that such
capabilities would someday be developed * * */"*

In fact, such capabilities have been and continue to be developed.
There are currently many institutions and programs that aid in this
process that did not exist in the 1950's. The Indian lawyer, formerly
a rare phenomenon, is being found in increasino- numbers. It is pres-
ently estimated that whereas there were only approximately 20 Indian
lawyers several decades ago, currently the number has grown to be-
tween 150-180. At least another 100 Indian students are enrolled in
law schooL^°^ The National American Indian Court Judges Associa-
tion now exists, and under Federal funding, provides resources, mate-
rials and training to Indian court judges. Among its publications are
a five-volume work on Justice and the American Indian, and a hand-
book on Child Welfare and Family Law and Procedural Manual.
Other public and private resources although insufficient for the total-
itj^ of the need, are also available, such as the Xative American Rights
Fund, and the various Indian legal services programs.

Capabilities

That tribal justice systems are seen as evolving institutions is re-
flected ill the fact that many tribes have just completed or are cur-
rently undertaking major revisions of constitutions, bylaws and law
and order codes.^°^ Thurman Trosper o,f the Flathead Reservation
expressed the view that judicial systems are essentially new to many
tribes as is the non-Indian concept of justice ; they are operating quite
well in view of their brief experience and are expected to develop a
high level of sophistication.^^^

There is criticism of tribal courts received from varied sources.
Montanans Opposed to Discrimination, an organization opposed to
tribal jurisdiction over non-Indians, does not think much of tribal
court systems in Montana.^^° The Assistant Area Director for the BIA,
Portland, Oreg., however, takes a different view : "^ "Wiile they may
not be trained in the law and the relationship to Anglo-Saxon law, I
do not know a tribal judge who doesn't know due process * * *." xllbert
Renie, the acting BIA Superintendent at Fathead, feels that the
Flathead Court makes sure that everyone's rights are protected, adding
that non-Indian business persons use the court for debt collection. ^^^

Severt Young Bear, a councilman from the Pine Ridge Reservation,
was severely critical of the "breakdown" of law on Pine Ridge. He

108 Letter from Douglas Nash, Counsel to the Umatilla Reservation to Donald R. Wharton,
Task Force No. 4.

1"^ Source : American Indian Law Center, Unir. of N. Mex. School of Law.

"" E.s:., San Carlos Apache. Southwest transcript, at 320. .321 ; Nez Perce, Northwest
transcript at 697-700 ; Gila River, Southwest transcript at 76 ; Flathead, Montana tran-
script at SS ; Winnebago, Midwest transcript at 431-32 ; Minnesota Chippewas, Great Lakes
transcript at 162 : and Oneida, Great Lakes transcript at 36.

1™ Montana transcript at 30.

"" AS'ee ch. 11, and ch. V, sec. E, of Task Force No. 4.

1" ^ee ch. II. and ch. V, at 142, Task Force No. 4.

1" Ibid., at 57-58.

166

attributed part of the problem to the role the Federal Government
played in violating the tribal constitution by dealing solely with the
chairman and ignoring the legally constituted governing body of the
Oglala Sioux, the tribal council. Another problem has been the multi-
ple exercise of criminal jurisdiction on Pine Eidge — by the FBI, the
BIA, the U.S. marshals. State police and various "vigilante" groups.
Notably excluded in that exercise is the tribal government.^^^ j^^ ^j^^.
portant footnote to the Pine Eidge story and tlie issue that has been
raised in some quarters about the Indian capacity for self-government
is that Oglala Sioux people in a popular election in 1976, turned out
o.f office the tribal chairman for Pine Eidge under whose regime most
of the problems occurred.

Training and Funding

The ability to operate a justice system is often dependent on the
training of its personnel and the financial resources of the system.

All extensive program now exists for the training of both Indian
police officers and tribal court judges. The Bureau of Indian Affairs
runs a police academy at Brigham, Utah, for the training of BIA
and tribal police officers. A significant limitation, however, is that
tribes must finance the officers' travel to and from training. In addi-
tion to this training, some tribal police departments provide supple-
mental training. Chief Johnson of the Colville Tribal Police Depart-
ment indicated that his officers receive more training than do the
deputies in the local sheriff's department.^^* Tribal police also are
often recruited from the ranks of non-Indian police departments.
The Suquamish Tribal Police include several county officers and a
former Pennsylvania highway patrolman.^^^

The training provided for tribal judges usually comes through the
National American Indian Court Judges Association. In the 1975-76
year, 199 persons participated in tribal court training sessions which
have been conducted for the past 6 years and generally cover criminal
law and family law.^^^ The training sessions are conducted in regional
centers for several days each month. No formalized onsite training is
being provided via national programs, although some courts infor-
mally train new judges onsite. Some of the limitations of the existing
programs as indicated by judges include an inability to attend because
of workload and a desire for more extensive training.

Funding for justice systems comes from several sources. The Bureau
of Indian Affairs, through contracts Avith tribes and direct services,
expended approximately $24 million in the 12-month period ending
in June 1976. Of this, approximately $3.5 million was spent on admin-
istrative expenses; $11.5 million in^direct services; and $8 million in
contracts to tribes; the remainder went to the training academy."''
Law Enforcement Assistance Administration made grants totaling
$4,691,000 to tribes out of its discretionary funds and another $900,000
out of LEAA's total block grant budget of $900 million went to law
enforcement agencies in areas where tribes and substantial urban

113 Midwest transcript at 614.

"* Northwest transcript at 96.

^- Ibid.

ii« Source : National American Indian Court Judges Association.

11' Source : Division of Law Enforcement Services, BIA.

167

Indian populations are located. It is not known what part of these
funds went to tribal law enforcement systems.^^^

In addition to these Federal moneys, substantial tribal resources are
expended for law enforcement systems. For example, the Colville
Tribe spent $347,000 of its own funds "^ (BIA provided $21,800) for
law enforcement this past year. The Yakima Nation spent $471,225
(BIA provided $69,400). Warm Sprinos estimates its expenses at
$450,000— five to six times as much as the BIA spends ($79,400) on the
Warm Springs law and order program. The Navajo Nation's tribal
expenditures are close to $1 million ^"*^ (BIA provides $465,000). All
tribes indicated the need for more resources to support and utilize
effectively law enforcement systems. Funds in some areas are being
used in creative ways. The Warm Springs Tribe, in cooperation with
the State of Oregon, has a "work release program" for criminal offend-
ers. The Yakimas haA'e started an alcohol detoxihcation center. The
unmet needs are, however, substantial. The problems of small tribes in
this area are overwhelming, particularly small tribes in P.L. 83-280
States which receive little or no Federal financial assistance.^^^ Of the
481 federally recognized tribes, 326 have resident populations of 350
or less. Many of these tribes do not even have the funds to support the
bare rudiments of tribal government, much less additional moneys to
support sophisticated justice systems. On the Campo Keservation in
Southern California, a $10,000 tribal development grant enabled the
tribe, for the first time, to set up a basic recordkeeping system.^"
Other small reservations relate similar stories of basic unmet needs.^-^

Recorrumendations

The Commission recommends that:

Congress appropriate significant additional moneys for the mainte-
nance and development of tribal justice systems :
Funding be direct to tribes.

Funding be specifically provided to enable tribal courts to be-
come courts of record.
Congress provide for the development of tribal appellate court
systems.

Appelate court systems will vary from tribe to tribe and region
to region.

The development of tribal court systems will require tribal ex-
perimentation and time.

Congress statutorily recognize such appellate systems as court
systems separate from State and Federal systems.

Wlien tribal court systems are firmly operative. Federal court

review of their decisions be limited exclusively to writs of habeas

corpus.

These recommendations flow from the concept that tribal justice

systems are evolving institutions that are capable of fair and efficient

"' Source : Indian Desk. LEAA.
"' Xorthwpst transcript at filT.
^20 Northwest transcript at 692.
'=ilbid.. at 2fi2.

^ Southern California transcript at 83.

'^^ f?ee. e.sr.. Pauma. Southern California transcript at 9: Pala. Southern California tran-
script at 471; Keweenaw Community (Michigan) Great Lakes transcript at vol. II, 35.

168

justice. Flexibility is needed to allow each tribe to develop fully the
system that will operate well within its own individual context. The
development of a tribal appellate system needs to be seen in this devel-
oping, experimental context. Some tribes are so situated that a tribal
system may be appropriate; others may wish to develop regional
appellate systems or appellate systems based on tribal relationship
(e.g., the various Sioux tribes might wish to form an appellate sys-
tem). The Federal Government's role in this area should be one of
support, providing the funds and the mechanisms to allow for these
developing institutions to evolve.

D. TAXATION

Introduction

Of all of the issues discussed in this report, there is none more con-
troversial than that of taxation. The issues are not w^ell understood —
nor in most cases does it appear there is any sincere desire to achieve
understanding. The notion that tribes might have the inherent power
to impose taxes upon persons or property within the jurisdiction of
the tribe evokes cries of "no taxation without representation" — a rally-
ing cry of revolutionists in 1776, and apparently 1976 as well. The
fact that Indians enjoy limited tax immunities from State or county
governments is cited as a ground for denying them access to or partici-
pation in either State or county government. The claim is that Indians
have all of the benefits and none of the burdens.

The issue has become a focal point of those who have long advo-
cated termination of the Federal relationship with tribes and a focal
point of those who so long resisted opening the doors of their political
systems to this visible minority and who yet would close those doors
even to their own financial detriment. In a climate such as this it is
difficult to discuss the issue rationally. Although undoubtedly well-
intentioned, the dissenting report itself advances these very
arguments.^-*

it was not until 1948 that the State of Arizona allowed Indians
to vote in State elections after they had appealed the issue to the
State supreme court.^-^ At this very time tlie legislature of the State
of Arizona is considering a bill that would divide two counties (Xava jo
and Apache) so as to create a single northern county which would be
predominantly non-Indian. The non-Indian po]:)ulation of these coun-
ties support the legislation, citing as their reason that Indians do not
pay taxes yet sit on the county boards. Yet it is acknowledged even
by those non-Indians advocating this separation that the consequence
of this political division will be to raise their own property tax to
three times its current level.^^*^

For the most part the "benefit-burden" argument would appear
to be spurious. Contrary to widely held beliefs, individual Indians
do not enjoy full tax exempt status. Except as to matters involving
trust property, they are subject to all the Federal taxes that any other

i=* Dissenting report, pp. 15—22.

125 Harrison v. Laveen, 67 Ariz. .'^.^7 (1948), 196 p. 2d 45ft.

!-■« The Arizona Republic, Mar. 20, 1977.

169

citizen pays. Theoretically, the rule is reversed as to State taxation of
Indians within Indian reservations, but as a practical matter they
pay most of the same State taxes as are paid by their non-Indian
neiofhbors. In addition, they have long contributed revenues to tribal
governments through processes other than those used by Federal,
State and local revenue schemes.

Of all of the governments involved, it would appear that only a
comparatively small number (approximately 200) county govern-
ments ^-^ have legitimate grounds for complaint or concern, and this
arises principally from the fact that a major part of county govern-
ment revenue is derived from taxation of real and/or personal prop-
erty.^-^ But these complaints must be measured against the benefits
which accrue to these local areas through (1) direct Federal subsidies
such as impact aid, and other program moneys for health, education
and general welfare, all designed to alleviate unusual money demands
on those governments, and (2) indirect benefits which accrue to these
local governments because of Federal and tribal expenditures of
money which flow through the reservations to tlie non-Indian
community.

The most outstanding feature of any analysis of taxation and
the comparative "benefit-burden'' discussion is the near total lack of
am' hard data. To the extent it has been developed it supports the
conclusion that States are deriving more direct cash benefits from the
Indian presence within their State than they would derive from the
Indians themselves if Federal recognition were withdrawn and the
States allowed to impose taxes without restriction.

A 1976 study of the Yankton Reservation in South Dakota com-
missioned by the Ninth District Federal Reserve Bank reflects a total
direct Federal program expenditure of $3,164,117 compared to a total
State expenditure of $1,214,701. The figure for the State is inflated,
however, because mam- of these State expenditures actually involved
Federal pass-through moneys. The program moneys expended by the
State whicli did not involve at least some Federal pass-through total
only $440,329 and of this sum more than $300,000 was spent on high-
way construction. By contrast, the St. Paul's Indian Mission at Yank-
ton spent well in excess of $500,000. The great bulk of the moneys
expended on behalf of services at this reservation passed directly into
the adjoining non-Indian community.^-^ The most thorough state-
wide analysis this Commission has been able to find dates from 1973
for the State of Arizona.^^° This study reflects a similar Federal-State
expenditure ratio with corresponding cash out-flow from the reserva-
tions to the local non-Indian community.

To the extent tribes are now developing tax schemes of their own,
they should most certainly be supported. Xot only does the commitment
to tribal self-government require this, so also does financial self-inter-
est. In 1975 the State of South Dakota entered into a sales, ser^'ice
and use tax collection agreement with the tribes in that State. This

1*^ Conversation with Jim Evans, National Association of Counties, Apr. 29, 1977.

i2''Rej>ort of the Board of Commissioners of Corson County, S. Dak., Cong. Rec, Mar. 20,
1977. at p. S514.5.

"9 "Flows of Funds on the Yankton Sioux Indian Reservation", a study commissioned by
the Ninth District Federal Reserve Bank, June 1976.

13" Arizona State Indian Seminar, Subcommittee Report on Taxation and Services to Ari-
zona Reservation Indians, 1973.

92-183—77 12

170

agreement provided for collection of the described taxes by the State
■with a pro rata rebate to the tribes without charge, for administration
of the costs of collection. The income derived from this agreement has
provided much needed money to the tribes for support of the costs of
government. Kecently the Oglala Sioux Tribe developed a compre-
hensive tax code. A special paper was submitted to Task Force Number
Two providing the details of this code and reflects the extreme sig-
nificance such taxing authority can play in making the tribes self-
sufficient.^^^

Narrative

The laws and policies presently applicable to the tax status of In-
dian tribes and individuals are often inconsistent and do not seem
to have followed any single rational scheme. The impact is increas-
ingly more important as all governments become more aware of reve-
nue sources. Sloreover, emerging tribal governments in search of
greater self-determination tlirough assumption of greater responsi-
bilities and increased exertion of sovereign powers will be even more
important in obtaining the benefit of the value of their natural re-
sources and governmental prerogatives. Affirmative taxing powers and
immnuity from outside taxation will be crucial issues in this evolution.
The following is a discussion of current tax laws.

Federal Taxation

Historically, tribes and individual Indians were not taxed by the
Federal Government. In fact, Indians were not even counted for the
purposes of apportioning representation in the Congress or for ap-
portioning taxation by population to the several States.^^^ However,
in 1924, the Congress provided for automatic citizenship of Indians
born within the United States, and in 1931 and 1935, two Supreme
Court cases established that individual Indian residents were subject
to the general tax laws of the Federal Government.^^^

Congress may, nonetheless, exempt individual Indians from such
Federal laws pursuant to Federal-Indian policy or in furtherance of
its trust obligation. Such intent must be express since an exemption
will not be inferred by the Internal Revenue Service or the courts.

Federal Tax and Indian T rites

As a general proposition Indian tribes are not taxed as entities.
There is no case which has decided the issue nor any specific provision
of the Internal Revenue Code exem]Dting tribes, but the Internal
Revenue Service has issued a ruling to that effect.^^*

This does not bestow upon tribal governments the full tax status
enjoyed by other governmental units such as States and their political
subdivisions.^2^ Moreover, there are Federal statutes which extend
Federal tax laws to tribes where they do not do so for States.^^^

121 Task Force No. 2, app. XV. Offlala Sioux Tribal Taxation System Case Study.

132 Art. 1, see. 1, clause 3, Constitution of the United States. See also, the 14th amend-
ment to the Constitution.

^^ Chateau v. Burnett, 2S.3 U.S. 691 (1931) ; Superintendent of Five Civilized Tribes r.
Commission, 295 U.S. 493 (1935).

^^ Rev. Rul. 67-284.

i^E.p., Rev. Rul. 58-610 exempting State and local governments from Federal excise tax,
but not tribal governments.

i"«E.g., 45 Stat. 495, ch. 517 (1928), oil and gas production of the Five Civilized Tribes.

171

During the 94th Congress, the proposed Indian Tribal Government
Tax Status Act (H.R."8989 and S. 2664) was introduced to provide
similar status to tribal governments for Federal tax purposes, a status
which is enjoyed by State and local governments. The Act would not,
however, have extended all such provisions of the 195-4 Internal Keve-
nue Code."^ Any renewed attempts to introduce such a bill should
seriously contemplate total extension of all provisions. Withholding of
any of the provisions should be based on specific justification on a
tribe-by -tribe analysis.

Tribes are distinct political entities fjossessing reserved sovereign
powers and as governments with powers over their internal affairs,
they have no less need for tax benefits than non-Indian governments.
In fact, the stated Federal-Indian policy of self-determination and
ultimate self-sufficienc}^ would indicate that tribal governments may
have greater need for these protections and benefits as they assume
greater responsibilities.

Ivelated to this are Federal tax laws which provide financial benefits
to non-Indian governments by providing certain incentives to indi-
vidual taxpaj^ers in their dealings with those governments. These
benefits are not presently enjoyed by tribal governments. The IRS
has ruled that a decedent's bequest to the Zuni Indian Pueblo is not
allowable as a deduction against Federal estate taxes,"^ that an indi-
vidual's income from interest on tribal obligations issued by the
Swinomish Indian Tribe is not an allowable deduction,^^^ and special
legislation was required to exempt interest on bonds issued bv the
Hopi Tribal Council.""

Disparity in the treatment of Indian tribal governments and non-
Indian governments should be removed so that tribal governments
may enjoy the benefits necessary to the generation of revenues. This
is not to say nor to imply that tribal governments or individuals deal-
ing with them will benefit from all of the provisions. Most tribal
governments simply will not ever be engaged in some of the activities
these provisions speak to. As such, they cannot have any measurable
impact on revenue sources of Federal or State governments or derive
any great benefits for tribal governments. However, it allows tribal
governments and individuals dealing with them a uniformity of ex-
pectation and a clear expression of the status of tribal governments,
^loreover, it goes far toward the overall scheme of providing tribal
governments the tools they require to become self-determined and
self-sufficient on a par with non-Indian governments.

Federal Taxation of Individual Indians

Individual Indians are subject to the general tax laws of the Federal
Government unless expressly exempted by treaties, agreements or con-
gressional acts. The exemptions run primarily to restricted Indian

1^ Proposed for extension, for example, were I.R.C. § 4055 (Federal retailers' excise tax) ;
§ 4221(a) (Federal manufacturer's excise tax); §4292 (Federal communications excise
tax) ; and §4482 (Federal motor vehicle tax). Examples of withheld sections are I.R.C.
§ 115 (income from performance of government functions) ; § 3306 (Federal employment
tax) ; § 4402 (sweepstakes wagerins: tax) : and 5113 (Federal liquor tax).

"« Rev. Rul. 73-179 regarding I.R.C. § 2055.

^■■» Rev. Rul. 68-231 regarding I.R.C. § 103.

"" See P.L. 91-264.

172

lands and allotments held in trust by the Federal Government for
individual Indians and encompass income derived from such lands.^*^
However, there are limiting factors in determining the exempt status
of land and income derived from it. Individual situations are tested
against the Federal-Indian policy of fostering financial independence
through the protection and preservation of land for the Indians, Taxa-
tion of such lands or income from them "would be inconsistent "with such
a policy and beyond the intent of Congress.^*^ Therefore, taxation
which would not run counter to such a policy would be permissible.

Exemption from Federal taxation of an individual Indian on lands
and income must meet two major tests concerning : (1) what lands are
within the exemption; and (2) what income can be said to be derived
directly from the land. The following guidelines have been adopted by
the lES, as expressed in rev. rul. 67-284 :

1. The land is held in trust ;

2. The land is restricted and allotted and held for an individual
noncompetent Indian, and not for a tribe ;

3. The income is derived directly from the land ;

4. The treaty or statute evinces a congressional intent that the
allotment be used as a means of protecting the Indian during the
trust period; and the language is clear as to congressional intent
that such land not be subject to taxation.

The effect is to provide the narrowest possible reading to the
exemption. The policy of fostering the economic welfare of the tribe
could as easily translate into protection of tlie economic development
of the individual Indian lessee of tribal lands. It is somewhat incon-
sistent to exempt income where the Indian person develops his own
trust lands or the tribe its own, but where the individual leases the
tribe's trust land, the exemption on income is lost. The same would be
true where tribal lands were never allotted and are assigned to
individual tribal members. The income would be taxable under the
IRS ruling since the land is not held in trust for that Indian.

The broader policy of exempting Indians from taxation in areas
designed to foster advancement and development is reflected in areas
other than trust lands. For exam.ple, payments made pursuant to vari-
ous employment programs to Indian residents of job training have been
ruled nontaxable; ^*^ and funds paid to Indians for relocation and
vocational training by the United States were ruled to be gifts and not
subject to Federal income tax.^** Congress has also exempted other
distributions to individual Indians where the disposition of judgment
funds, trust assets, or cash in lieu of allotments were involved.^*^

There must be a recognition that presently the disposition of the
trust obligation and the implementation of Federal-Indian policy
serve as separate grounds for congressional exemptions from Federal
taxation of individual Indian assets. Much would be added to clarify
and bring consistency of the law to policy implementation if Congress

"1 ^qnire v. Capoemayi, 331 U.S. 1 (1956).

1" See General Allotment Act { 6, 25 U.S.C. § 335 ; Stevens v. Commissioner, 452 F. 2d 741
(9th elr., 1971).

i« Rev. Rul. 6.S-.^8.

1" Rev. Rul. 57-2.^3.

"^ See. p.tr., 25 U.S.C. 5 772 (exemption of per capita distribution of judgment funds) ; 25'
U.S.C. § 037 (division of tribal assets. Catawbas) ; 25 U.S.C. § 955 (exemption of cash paid
in lieu of equalization allotment, Agua Caliente).

173

would enact a statute which exempts all income derived from trust
lands by an individual Indian irrespective of whether the land is held
in trust for that individual.

Sitate Taxation

As with other areas in the assertion of State powers over individual
Indians and tribal governments within reservation boundaries, States
are limited to those areas where autliority has been expressly con-
ferred upon the State by Congress.^*° A State may not tax the income
of a reservation Indian from sources within the reservation ; "' im-
pose a sales tax on purchases by an Indian within the reservation ; ^^'
or impose a personal property tax on Indians within the reserva-
tion."^ The same reasoning would appear to apply to a State inherit-
ance tax on the transfer of property of a deceased reservation
Indian.^^" ^

Some confusion over judicial doctrine has developed over the years
which has led to the present preemption/sovereignty analysis. Prior
to McCIana.lian, two distinct doctrines emerged : Tlie Federal instru-
mentality doctrine and the noninterference test. In U.S. v. Rickert.,
188 U.S. 432 (1903), the Supreme Court held that a State tax on per-
sonal property and permanent improvements on Indian trust land was
invalid as it interfered with the instrumentality ^^^ desigiied to achieve
a Federal policy of assimilation and economic development. This same
line of reasoning applied as well to non-Indian lessees of Indian
lands.^°-

However, in 1938. tlie Supreme Court l:>egan to reject the doctrine
where they perceived tlie intorferenre with the governmental purpose
or function to be insubstantial, indirect, or remote ^"'^ and upheld a
Federal tax on a non-Indian lessee of State school lands. In 1943, the
Court decided Oklahoma Tax Commission, v. U.S. ^"* and cited a pre-
vious holding in Tlelvering v. Motion Producers Corporation ^^^ for
the proposition that the Federal instrumentality doctrine was no
longer valid as a constitutional bar for State taxation of income from
Indian holdings. And hnallv in 1073, the Court rejected an argument
that the doctrine would act as a bar to the State's taxation of the in-
come from an Indian enterprise on trust lands outside of the reserva-
tion.^"^*^ As a determinant of the power of the State to tax non-Indians
on reservations in activities with Indians, and income from Indian
enterprises off the reservation on tax exempt land, the Federal instru-
mentality doctrine is no longer sound.

"Xoninterference"' as a test was enunciated in Williams v. Lee ^^" in
1959 and suggests that a State may exercise jurisdiction in areas such

146 yfrClnnahan v. Arizona Tax Commission, 411 U.S. 164 (1973).

"" Brynn v. Itasca County, 96 S. Ct. 2102 (1976).

^■" ifoe V. Confederated Salish and Kootenai Tribes, supra.

349 Bryan v. Itasca Countif, supra.

^"0 Kirkwood v. Arena, 243 F. 2(1 836 (9th cir., 19.51).

^=1 Individual allotments and their Improvements were desisned to foster Indian assimila-
tion hy encouraging individual ownership and to foster agrarian development by Indians.

15= nwr-fnw, O. rf G.B. Co. v. Harrison, 2.3.5 U.S. 292 (1914).

!■■« Helvering v. Mtn. Producers Corp., 303 U.S. 376 (1938).

^54 319 U.S. 598 (19'43).

'^ Supra note 30.

^^'^ Mescal em Apache Trihe v. Jones, 411 U.S. 14.5 (1973) ; see also, Agiia Caliente Band v.
County of Riverside, 442 F. 2d 1184 (9th dr., 1971).

i='358 U.S. 217 (1959).

174

as taxation to the extent that it does not interfere with Indian self-
government. Tlie McCloAiahan court clarified the reach of the test to
apply only to jurisdiction over non-Indians within the reservation
where "both the tribe and the State could fairly claim an interest in
asserting their respective jurisdiction." ^^^ However, the State may re-
quire an Indian retailer to assist the State in collecting a State tax as-
sessed against a non-Indian while making purchases from the Indian
retailer on tho rcsen'ation.^^^

State taxation of reservation Indians depends upon congressional
consent. Recent case law has resolved any doubt that such consent was
given to those States assuming jurisdiction under P.L, 83-280. It was
not.^^" There are, however, numerous Federal statutes which do pro-
vide for State taxation of reservation Indians and activities: State
gasoline tax (4 U.S.C. § 104) ; State taxation of mineral production
under oil and gas mining leases ; ^°^ and taxation of reservation Indians
in relation to their land (25 U.S.C. §349, 610(b) and 63 Stat. 613
[1949]).

The reasoning behind the congressional authorization of State taxa-
tion of mineral production of Indian lands is not clear. The legislative
histories of several of the acts have been cited for the proposition that
the taxes were authorized in response to "the favorable economic ])0si-
tion of the particular Indians."' Oklahoma Tax Commission v. Texa^
Co., 366 U.S. 342, 366-67 (1949). Other explanations of the reason
for the enactment of the legislation might include pressure from the
States for a share of the mineral revenues, a desire to increase the
process of assimilation, and the desire to terminate the Federal Gov-
ernment's role as guardian, all of which were prevalent during the
period in which the laws were enacted,^°-

Assuming the validity of Lone Wolf v. Tlitclicocl\ 187 U.S. 553
(1903), which held that Congress has plenary authority to deal with
Indian tribes and their property without regard to prior treaties, the
Federal authorization of State taxation under tlie above statutes is
valid. The statutes also appear to be valid under the McClanaJian rule
since there is express congressional consent to the taxation in each case.
It has been suggested that in respect to State taxation of Indians under
the above leasing statutes, congressional consent has been withdrawn
by the 1938 Indian Leasing Act, 25 U.S.C. 396c, which contains no au-
thorization of State taxation and repeals all prior inconsistent acts.^^^
If this is the case, such taxation of Indians by the State would be
invalid for want of congressional consent. The argument, however, is
not totally persuasive, and in any case, it may be argued that not only
the leasing statutes, but all statutes authorizing State taxation of res-
ervation Indians, are inconsistent with Federal-Indian policy and
consent to such taxation should be withdrawn. Such statutes almost
all date from a period in Avhich the termination of tribal identity and

168 411 U.S. at 179.

IE" Moe V. Confederated Smish arid Kootenai Trihex, 96 S. Ct. 1634 (1976).

"^i^ Moe. supra; Bryan y. Itasca County, 96 S. Ct. 2102 (1976).

"1 25 U.S.C. S§ 398 (c). 399. 401, 501, and several uncodified statutes.

1*2 See 58 Conjr. Rec. 172 et sen., May 23. 1919 (66th Cons?.) ; S. Rept. 9S2, May 3, 1928
(70th Consr.) ; letter from Sec. Work: 68 Con?. Rec. 470.1. Feb. 24. 1927 (67th Con?.) .<?ee
'i^n'cJ^- ^'^^''y- ^''6 Navajo Indians and Federal Indian Policy 1900-1935 (U. Ariz. Press
1968) .

i«3 SVr Israel, the Reemergence of Tribal Nationalism, Institute on Indian L.and Develop-
ment, Rocky Mountain Mineral Law Foundation, Apr. 1, 1976, pp. 10-50, fn. 72.

175

sovereignty was advocated. To the extent that they reflect such a
policy, they are at odds with current Indian policies designed to vital-
ize tribal governments and reservation economies. The conclusion that
State taxation of reservation Indians is inconsistent with such policies
is supported by data which reflects the poverty of reservation Indians.
The 1970 census indicated that the median family income of rural
Indian families was $4,649 (half the national average.) ^'^;' And finally.
State taxation of reservation Indians does not give sufficient acknowl-
edgment to Federal policy recognizing the sovereign nature of the
tribe. Therefore, repeal of all Federal statutes authorizing State taxa-
tion of reservation Indians should be seriously considered.

S)tate Taxation of Non-Indians on Reservations

As discussed above, an early line of cases rejected taxing authority
of States over non-Indian lessees of Indian land as being an unauthor-
ized interference with the Federal instrumentality designed to imple-
ment Federal-Indian policy. The reasoning of that line of cases has,
as indicated, been seriously eroded. In 1971, the U.S. Court of Appeals
for the Ninth Circuit upheld a tax on the non-Indian lessee's interest
even though the burden of the tax fell upon the Indian lessor, saying
that the burden was insufficient to amount to an interference.^^^ Thus,
a nondiscriminatory tax is not invalidated by the Federal instru-
mentality doctrine.

Likewise, the State may tax a non-Indian where the incidence of the
tax does not interfere with the tribe's rights to self-government.^'^''
Although this would include requiring an Indian merchant to collect
the tax for the State,^^^ the extent to which such taxation may clash
with tribal development or tribal taxation powers has not been decided.

Current case law would appear to reflect a sense that State taxation
of non-Indians dealing with Indians on a reservation does not con-
stitute a sufficient interference with self-government or Federal-Indian
policy as to prohibit the tax. A clear congressional expression that
such enterprise furthers congressional policy aimed at reservation
development and would involve an interference test and should thus
preclude further State tax drains on reservation development.^*'^

While States have been unable to tax Indian lands directly, they
have been able to accomplish much the same result by taxing leasehold
interests in Indian lands. In addition to the California possessory
interest tax upheld in Agva Caliente^ supra, there are similar taxes
which would apply to non-Indian leasehold interests in Indian lands. ^^^
The exemption of Indian lands themselves from State taxation has
been deemed by Congress to be necessary for the economic development

^** study of Selected Socio-Economic Characteristics of Ethnic IMiuoritles Based on the
1970 Census, vol. Ill : American Indians 6G-67, Dept. of HEW, lf)74.

"5A(7!/a Caliente Board v. Riverside County, 442 F. 2d 1184 (9th dr., 1971) • cert den
405 U.S. 9.33 (1972K

1^ McClatiahan v. Arizona Tax Commission, supra ; Williams v. Lee, supra.

^^'' Moe Y. Confederated Salish and Kootenai Tribes, supra.

1^ See Ronald Trosper, American Indian iVIineral Agreements. Task Force 7. ATPRC

1^ ARS § 42-701 et seq. (Arizona Rental Occupancy Tax) ; NMSA 72-30-2 (New Mexico
property tax, applied to the leasehold interest of a non-Indian lessee of Indian lands in
Norvall v. Sangre Cristo Dev. Co., 372 F. Supp. 348 (DNM 1974), rev'd on other grounds 519
F. 2d 370 (10th cir., 1975). R. C. Mont. 84-207 et seq. (Montana, privilege tax on possession
of use of tax exempt property).

176

of Indians, yet the economic development of Indians is jeopardized
by State taxation of non-Indians' interest in Indian lands to almost
the same extent as if the lands were taxed directly.

As in other cases where State taxation is inconsistent with Federal-
Indian policy, the conflict should be resolved in favor of the latter
and State taxation of non-Indians on reservations precluded.

It has been suggested that the tribes might preclude State jurisdic-
tion to tax non-Indians under the noninterference test by taxing the
non-Indians themselves.'''^ A second solution would be for Congress
to enact legislation which w^ould revitalize the Federal instrumentality
doctrine and deny the States authority to tax non-Indians in their
transactions with Indians within the reservation and non-Indians
performing services for the tribe or developing Indian lands for the
benefit of reservation Indians or the tribe. This second proposal would
leave the tribe free to assert or decline to assert whatever powers it
possesses to tax such non-Indian activities. It would leave the States
free to tax lands held in fee by non-Indians and all transactions be-
tween non-Indians, provided such taxation did not violate the non-
interference rule. At the very minimum, legislation should be con-
sidered which would codify the noninterference test and place the
burden of proving noninterference on the State. The shifting of the
burden of ]:)roof would be consistent with current Indian policy and
precedent."'

State Taxation of Indians and Indian Trihes Off -Reservation

Absent express Federal law to the contrary, Indians and Indian
tribes are subject to State taxation when beyond reservation bound-
aries except, of course, for trust allotments.'''- However, lands ac-
quired and held in trust by the Federal Government for a tribe are
tax exempt.'" Likewise, permanent improvements to such tax exempt
land are tax exempt, but not the income from such land."'*

There are also some cases which present what appear to be discarded
distinctions between so-called "assimilated Indians" and those who
presumably have not assumed the ways of the dominant culture. The
Supreme Court has on at least two occasions upheld State taxation of
reservation Indian assets held in trust and derived from reservation
resources.''^^ This situation is clearly contrary to the general rule
stated in McGJanahan^ supra. However, the Supreme Court in McClan-
ahan and U.S. v. Mason'^''^ suggested that West was distinguished
because the Osage Indians involved in West has been assimilated into
the State and that the Osage reservation was not self-governing.'"
Such distinctions are artificial and unworkable. The inquiry is prop-

1"" >9pc Goldhpi-ir. A. Dynamic View of Tribal .TnrisrMct-ion to Tax Non-Tnflian?!, fiteri In
Riplii. Taxation anrl Indian Affairs. Indian Law TNIanual, AILTP (1976) ; Israel, A Proposal
for ClarifyinfT tlip Tax Status of Indians, Taslc Force 4, AIPRC.

i"i fiee '25 TT.S.C. 194, wliicli places the burden of proving ownership on white settlers
clniniincr Indian land.

1"* Afearfrlero Apache Tribe v. Jones, supra.

ITS 25 U.S.C. see. 465.

'^'*' M excalero , supra. Ski resort equipment was exempt on land leased from Federal Gov-
ernment. but income therefrom was not.

i"5 Okla. Tax Comm. v. U.S., 319 U.S. 598 (194.3) ; West v. OJcla. Tax. Comm. 334 U.S.
717 (1947).

"« r/.S. V. Mason, 412 M.S. 391 (1973).

1"' McClanahan, 411 U.S. at 171 ; Mason, 412 U.S. at 396.

177

eriy stated in the general rule and should turn on whether the property
is within or without the reservation, rather than some vague deter-
mination as to whether or not the individual Indian has been "assimi-
lated." "When beyond the reservation, the trust status of property
should determine its taxability (a congressional policy).

With respect to taxation of income from off-reservation trust lands,
the policy of Congress relevant to tribal self-sufficiency should be
implemented by the courts given all reasonable inferences in favor
of exemption. Clear congressional expression would do much to guide
court determinations.

Current Develo'p'inents in State Taxation of Reservation Indians

Since the Supreme Court decisions in Bryan v. Itasca County ^"® and
Moe V. Confederated SaJish and Kootenai Trihes^'^''^ States and Indian
tribes have been faced with the need to reach some agreement on imple-
mentation of those decisions. The issues largely involved State asser-
tions of taxation authority over Indians on reservations, which were
struck down as being without congressional authoritj^ The State
involved in the case, Minnesota, claimed authority under Public Law
83-280, a statute designed to allow State assumption of some areas of
jurisdiction previously Federal. In interpreting the law, the court
concluded that the Federal grant of jurisdiction to those States man-
dated or assuming it, did not include any expanded taxation powers.

In a meeting of the Western State Tax Administrators at Anchor-
age, Alaska, during the week of September 20, 1976, a statement
was prepared for submission to this Commission.^^° Their submission
identifies "three basic sources of jurisdictional controversy" in Fed-
eral-Indian policy :

(1) The comminfflinff of Indian and non-Indian persons within the reservation
boundaries and concerns for constitutional rights of nontribal members on the
reservation: (2) the "checker-l)oarding" of trust and fee land status and Indian/
non-Indian land ownership within reservation boundaries ; (3) present and poten-
tial tax-free economic enterprise taking place within reservation boundaries.^^^

It then offers four principles for incorporation by Congress in legis-
lation designed to resolve State taxing jurisdiction on Indian reser-
vations :

1. States are without power to impose State taxes with resy^ect
to on-reservation economic transactions and activities of enrolled
Indians of that reservation the legal incidence of which is upon
such Indians. However, States may require Indian retailers to
charge, collect and remit to the State excise taxes levied upon
non-Indian purchasers within the exterior boundaries of the
Indian reservation.

2. For purposes of ap])lication of these principles the term
"Indian resen-ation*' means all lands within the exterior bound-
aries of a federally recognized reservation.

I'SfleS. Ct. 2102 (1076).

i™f>6 S. Ct. 16.S4 (1976).

^* States which joined in preparation of the report : Washington, Colorado, Idaho, ISIon-
tana. Orejron. Utah. Arizona. Nevada, and Wyomine. Althoujrh California was not repre-
sented at the meetinsr. thev sent a letter of approval. Testimony of Mar.v Ellen McCaffree at
a meeting between the AIPRC and the Western State Tax Administrators on September '^O
1976. Transcript of the meeting at p. 3 (hereinafter. "Tax Administrators"). Also in atten-
dance at the meeting were representatives from the State of Minnesota.

^^ Tax Administrators at pp. 4-5.

178

3. The term "Indian" means a person duly enrolled upon the
membership rolls of the tribe upon whose reservation the economic
transaction or activitj^ occurs and who is domiciled upon such
reservation.

4. States are authorized to use their general administrative and
tax enforcement powers in furtherance of State collection of
taxes lawfully to be remitted by Indians to the State, and further
States are authorized to commence any State initiated tax enforce-
ment litigation in either Federal or State courts.^^^

The State of Washington has issued a revised State revenue rule,
designed to administer that State's tax laws consistent with their
view of the holdings in the Bi'^jan and Moe cases. Although the pro-
posed revision recognizes that the reservation includes all land within
the exterior boundaries without regard to the trust status of the land,
it distinguishes "Indians" according to whether they are on their own
or another reservation, purporting to tax them when they make
purchases while on any reservation other than their own. And while
recognizing that P.L. 83-280 confers no jurisdiction to tax reserva-
tion Indians or tribes, "Washington's Revenue Rule 192 evinces an
intent to tax personal property when removed from the reservation,
including and especially automobiles or trailers. Finally, the rule
requires Indian retailers to collect taxes from non-Indian purchasers
(which are defined to include non-member Indians) and keep detailed
records of sales to Indians not taxed.^^^

A more narrow application of the Bryan and Moe cases can barely
be imagined. Minnesota, however, managed to surpass Washington.
That State ignored the Supreme Court's rejection of "checkerboarded"
jurisdiction enunciated in Moe and has instructed non-Indian retailers
to continue to collect taxes from Indians on reservations irrespective
of tribal membersliip. Minnesota's Tax Commission takes the position
that the Supreme Court decision in DeCoteau v. District County
Court ^^* controls in ^Minnesota, and they will await the decision in
Rosehud Sioux Trihe v. Knei'p^^^ now in the Supreme Court, before
taking further action. In the meantime, Minnesota Indian people are
paying what is very probably an improper tax.

Tribal Taxation

As noted earlier, tribal governments, bv and larjre, have not in
the past chosen to exercise their inherent powers of taxation. Those
cases which have decided the issue have uniformly upheld the tribes'
taxing powers.^^^ The court decisions rely largely upon the power of
tribes to remove persons from the reservation, and consequently, to
prescribe the conditions upon which they shall enter. However, Iron
Crow V. Oglala Sioux Tribe specifically recognizes the inherent
sovereign powers which exist, except where taken away. Surely this

1== Tax Aflministrators at 13.

1® Rev. Rule 102. State of Washington.

1^420 U.S. 425 (197.5).

iss 54 F. 2(3 87 (8th cir., 1975) ; see Rosebud Sioux Tribe v. Eneip, #75-562, Apr. 14, 1977,
for the Court's recent decision.

ife Iron Crotv v. Ofilala Hionx Tribe, 2.31 F. 2d 89 (8th cir., 1956) ; Buster v. Wright, 135
F. 947 (8th cir.. 1905), appeal dismissed. 203 U.S. 599 (1906) ; Morris v. Hitchcock 21 App.
D.C. 556 (1903) aff'd. 194 U.S. SS4 (1903) ; Mawey v. Wright. 5*45 W. 807, aff'd. 105 F. 1003
I Sth cir., 1900) ; Indian Reorganization Act, 25 U.S.C. sec. 476.

179

must comprehend at a very minimum the power of a government
to sustain itself.

The fact that tribal governments have not used taxation to support
their governments does not compel the conclusion that they have
not derived revenues from tribal members for that purpose. Tribal
governments often take their operating costs out of the common
fund derived from tribal revenues from resources held in common
by the tribe. Rather than distribute the money, assess a tax, and
recollect revenues, they simply appropriate the needed revenues in the
first instance. Revenues from resources controlled by the State and
Federal governments are treated in much the same way.

Because tril>es have chosen to generate revenues dili'erently from
most non-Indian governments, this does not in any manner suggest
that they lacked the governmental power to tax if they so chose. It
would appear, however, that the enactment of taxation provisicms may
eventually become desirable if tribes are to continue to undertake
ever-increasing functions of governments and if they are to have any
hope of quelling the drain of resources from the reservations.

At present. States may require Indian merchants to collect State-
imposed taxes from non-Indians if such collection is viewed as a
minimal burden on tribal self-government.^^^ As a result, tribal enter-
prises may lose what is seen by many States as a competitive advantage
over non-Indian enterprises. What it also does is limit the scope of
economic choices a tribe may make in how best to generate tribal
revenues. The tribe may be forced to assess a tribal tax (similar to that
of the State) tied to generating revenues to carry out a specific tribal
governmental policy endorsed by Congress in its Federal-Indian
policy. The cases suggest that the competitive State tax may then
create a sufficient burden on tribal self-government {hy frustrating
part of its function) as to invalidate the State tax.

Such taxation raises the question of the rights of a nonmember of
the tribe paying a tax to a government in which that person has no
right to representation. Governments generally, however, may tax
noncitizens without regard to representation when they are within
the territorial jurisdiction of that government. However, where non-
Indians live within the boundaries of the reservation and have no
hope of ever becoming members of the tribal government, the issue is
more difficult.

It should be noted initially that the fact that there is no right to
participate in the tribal government does not mean that there is no
recourse for the nonmember reservation resident. Congress has ex-
tended a number of clear limitations on the exercise of tribal powers.
Pursuant to Public Law 90-284, no tribe in the exercise of its powers
of self-government maj'' deny any person equal protection of the law
nor deprive him of liberty or property without due process of law.
Judicial interpretation of the Act has uniformly recognized general
jurisdiction in the Federal courts to leview civil rights cases,^^^ but
required exhaustion of tribal remedies. ^^^ IMoreover, nonmembers may

I'T Moe y. Confederated Salish and Kootenai Trilea, supra.

"^Dodae V. Xakai. 29S F. Snpp. 26 (D-Ariz. 1969) ; Spotted Eagle v. Blackfeet Tribe,
301 F. Supp. S5 (D-Montana 1969).

188 javis V. Wilson, 521 F. 2d 724 (8th dr., 1975).

180

have speedy review where there is a sliowiiio; that there is no tribal
review available or where such revicAv would be f utile.^^°

Presumably, tribal governments would also be held to the same
standards of "review concerning whether a tax would be discriminatory
and/or confiscatory. Any tax assessed and collected from a resident
nonmember may have to bear a reasonable relationship to a service
provided or available to such resident nonmember. Moreover, any
tribe moving into the taxing field would need to construct a govern-
mental administrative process to enforce and manage it.

It is difficult to imagine that any tribal government would attempt
to enact and administer a tax provision without looking into its-
relative merits and costs versus benefits. Clearly, they can expect chal- '
lenges to such measures and would not provoke such a situation unless
they were legally prepared to meet the occasion. It must be presumed^
as with other governments, that tribal governments will act in a
rational and intelligent manner to protect their best interests. Cer-
tainly, the history of the tribes is that the}^ do so and will continue
to do so.

In response to objections wliich have been raised before the Com-
mission to the theoretical proposition that many tribes will soon begin
to impose discriminatory and unjust taxes upon the property and
income of reservation resident non-Indians, it should be pointed out
that no tribes presently have done so nor have there been any reports
of tribes planning to do so. As has been suggested above, should an
Indian tribe provide governmental services, at the direct expenses
of its own treasury, which w^ould clearly benefit such a resident non-
Indian (e.g., road or irrigation canal maintenance on his fee prop-
erty) it would appear to be neither unreasonable nor unfair to require
that such an individual share the expense of such a service on a fair,
pro rata basis with all residents who may benefit, including tribal
members.

In relation to potential tribal taxation of commercial activities of
nonresident non-Indians or of nontribal industrial enterprises con-
ducted on reservations, no discernible difference between tribal gov-
ernments and State governments is apparent. The right of a State
government to impose a tax upon commercial transactions of non-
residents, for example the tourist industry, has never been questioned
so long as there is not an interference Avith interstate commerce. A
tribal government stands on exactly the same footing. In a similar
vein. States have traditionally imposed excise taxes and "right to do
business" taxes upon nonresident individuals and corporations and
their rights to do so have been well established in the law. That the
resident State of such individuals and corporations does not receive
any share in the taxing State's revenues has not been viewed as un-
constitutional or mifair. A tribe is again on the same footing as the
taxing State government.

Clearly, the solution to jurisdictional disputes between States and
tribes in the area of taxation, as in many other areas involving the
exercise o.f governmental powers, lies in the direction of negotiated
intergovernmental agreements. The objective of such efforts would be

^'o O'Neal V. Cheyenne River Sioux Trite, 482 F. 2d 1140 (Sth dr., 1973) ; Javis v. WiUon.
Bupra.

181

to accommodate the respective interests of both parties in a neutral
forum as an ahernative to unsatisfactory and resource-consuming
litigation. Invariably such a process involves some give and take with
responsible compromises on the part of both parties. A healthy attitude
whicli looks forward to tliis logical solution can be found in the state-
ment of the Western State Tax Administrators submitted to the
Commission :

Should the Federal Government recognize tribes as governmental entities with
certain attributes of sovereignty, the western Stales believe it would be necessary
to stipulate what powers and responsibilities the tribe may exercise and over
which persons and territory such powers extend.

A simple repeal of Public Law 83-280 is insufficient. It is not a I'ealistic goal
at this time in our history to "turn back the clock" to a time when Indian tribes
v\"ere sovereign nations and Indian people lived in isolation from non-Indian
society. Court actions cannot restore the aboriginal status of Native Americans.
What must be found is a way that individual tribal culture can be preserved
and self-determination of Native Americans can be pursued concurrent with, not
in conflict with that of non-Indian society. The danger in leaving this task
imdone is that these questions affecting the very fabric of our Avestern society
will be left solely to the courts to decide. If the jurisdictional matters are left to
the courts, "normalized" relations between States and the tribes is "out of the
question" for a long time to come.

Obvious differences remain and a great deal of work must be done
to resolve successfully such tribal-State conflicts. In many ways, the
key lies in the recognition on the part of many States on the legitimate
governmental status of Indian tribes and in the responsible acknowl-
edgment of legitimate State governmental interests within Indian
countr}" on the part of many tribes.

Recommendations

The Commission recomTnends that:

Congress provide by approprate legislation that lands held in trust
for an Indian tribe and assigned to an individual Indian are exempt
from Federal taxation and that the income from such lands is also
exempt, in the same way that restricted and allotted lands are pres-
ently exempt.

Congress provide by appropriate legislation that the benefits re-
ceived from those programs designed to aid in the economic develop-
ment of Indians shall not be subject to Federal taxation.

Congress amend the Internal Uevenue Code to provide that pro-
visions of the Code which apply to non-Indian governments are to
be applied in a like manner and to the same extent to Indian tribal
governments. This would include the same benefits enjoyed by indi-
viduals in their relations to tribal governments.

Congress amend or repeal, as appropriate, those statutes which
authorize State taxation which is in conflict with Federal-Indian
policy to foster economic development of reservation Indians and
enhance tribal self-government. Specifically, State taxation of mineral
production on leased Indian lands be repealed or amended.

Congress provide by appropriate legislation that State taxation
within reservations be invalidated as applied to non-Indians when
the burden of such taxation falls directly or indirectly upon the
Indian.

182

Congress enact legislation which provides that where an Indian ih
tribal government enacts a tax in furtherance of Federal-Indian li
policy designed to enhance the tribes' self-governing capacity or tof
protect or foster tribal economic development of Indian people or the
tribe, such tax will have the effect of preempting any competing State
tax which would be applicable to the same person or activity.

E. HUXTTXG, FISHING, TRAPPING AND GATHERING RIGHTS

The rights of Indian people to take fish and game and gather food
are and have historically been an integral part of their subsistence as
well as their cultural and religious heritage. In turn they have formed
a foundation for their trade and commerce. These rights were widely
recognized in treaty negotiations and have been found by the courts to
exist even where not specifically reserved in treaties.^^^ The regulation
of these resources, so significant to Indian self-sufficiency and survival,
has been the subject of much judicial definition.

The historical evolution of Federal-Indian relations has placed the
exercise of these rights both within and without reservation bound-
aries. Within the boundaries of a reservation it is undisputed that
Indian people may hunt, fish, trap and gather free from external
regulation except where Congress has specifically provided otherwise.
Beyond the boundaries the rights are defined by the specific treaty or
situational terms under which they were reserved and must therefore
be viewed carefully.

Conflicts and emotions continue to run high in some areas of the
country over Indian fishing rights. There has been a marked unwill-
ingness of non-Indian citizens in the State of Washington to accept
the rulings of the Federal district court on these rights.^^^ Indian fish-
ing rights liave also been identified as the reason for a failing fishery in
the Northwest despite specific findings to the contrary.^^^

Of primary concern to all involved is the management and enhance-
ment of the resources, both fish and game, to assure that there Avill be
sufficient numbers to meet the needs and desires of all concerned. Fed-
eral, State, and Indian tribal involvement in a cooperative system is
imperative to the ultimate achievement of an orderly and productive
management and enhancement of the resources.

On-Reservation Bights and Regulation

Within the boundaries of an Indian reservation the tribe has the
sovereign authority to regulate, restrict, and license huntins; and fish-
ing activities. Such authority is exclusive over tribal members so far
as it has not been explicitly diminished by treaty or Federal statute.
Most tribes do regulate the exercise of hunting and fishing rights and
privileges for the protection and preservation of the resources and
rights.^^^

«i fiee generallv. n.S. v. VTinan^, 19S U.S. 371 (1904) ; for this doctrine ; Menominee Tribe
V. U.fi., 319 U.S. 404 (1968).

^0' !^ee. e.jr., transcript of ATPRC hcarinirs in Portland, Oreg., Sept. 25, 1976; U.S. v.
Wnxhinqton, 384 F. Snpp. 312 (W.D. Wash. 1974).

^^^ See "Columbia Basin Salmon and Steelhead Analysis, Summary Report, Sept. 1976".
Pacific Northwest Regrional Commission.

19* See e.ff., Hohhs, "Indian Huntinp and Fishin? Rights." 32 Geo. Wash. Lr. Rev. 504. .^23,
nn. 100-]01 : State v. McClure, 127 Mont. 534, 268 p. 2d 629 (1954) ; Sol. Op. M 36638
(May 16, 1962).

183

Consistent with the tribe's jurisdiction over its resources and the
territory where the harvest takes place, tribal regulation may also be
enforced against nonmembers of the tribe as well as members.^^^ These
powers may also comprehend the exclusive authority to license non-
Indians on the reservation who hunt and fish.^^^ A tribe may be lim-
ited in the jurisdiction as to members or to Indians where their own
constitutions or governing documents so limit them or wliere treaties
or Federal statutes limit their powers or provide for the importation
of State laws.^"

Absent congressional authorization, States have no authority to
regulate or control Indian hunting and fishing within the reservation.
Even where Congress has provided for the assumption of some or all
civil and criminal jurisdiction by States within reservations under
Public Law 83-280, jurisdiction over hunting, fishing, and trapping
rights was expressly withheld.^^^ Moreover, it is immaterial whether
the lands within the reservation are held in Indian or non-Indian
title."^

On the question of hunting and fiishing on the reservation by non-
members the trend and generally the better view is that the State has
no jurisdiction unless the tribe requires that nonmembers or non-
Indians comply with State regulations.^°° This position is further re-
flected in Federal legislation which prohibits non-Indian hunting,,
fishing, and trapping on Indian reservations absent tribal consent (18
U.S.C. § 1165). Although that law does not contemplate bringing non-
Indians under any Federal regulatory scheme, it strongly suggests that
tribal regulation is preemptive of State laws.^"^

On those few occasions in which courts have considered attempts at
on-reservation regulation by administrative Federal agencies, it has
been rejected.^°^ Even where treaties entered into subsequent to the
Indian treaty outlawed the taking of migratory birds,-"^ or a Federal
enactment prohibited the taking of Bald Eagles, the rights of the on-
reservation Indian are undiminished unless specifically curtailed. Ab-
rogation of Indian hunting and fishing rights will not be implied into
general congressional enactments.^"* The management of these Indian
property interests is left to tribal self -government.^°^

In summary, it is fair to conclude that the primary regulatory au-
thority within reservation boundaries is the tribal government. This
would appear to be true whether the person involved is either Indian
or non-Indian. The law on this latter point is, however, not finally
settled.

Nonetheless, the States continue to question fundamental principles
surrounding the exercise of Indian rights even within the reservation.

^^5 Qiiechan Tribe of Indians V. Rowe, 521 F. 2d 408 (9th cir.). (1976).

"« Colville Tribe v. State of WasJmigton, No. c-75-146 (E.D. Wash. 1976).

'^^ Quechari Tribe of Indians v. Rowe, supra.

"^25 U.S.C. 1321-26; 18 U.S.C. 1162(b).

'^ Leech Lake Band of Chippewa Indians v. Herbert, 334 F. Supp. 1001 (D.C. Minn.
1971).

''°° See, Quechan Tribe of Indians v. Roxce, supra ; Colville Tribe v. State of Washington,
supra; contrast. State v. Danielson, 427 p. 2d 689 (Mont. 1967) ; compare, Donahue v.
Justice Court, 93 Ca. Rptr. 310 cert, den., 404 U.S. 990 (1971) where the court held that
unless immunized by tribal permission nonmembers were subject to State regulations.

^See. U.S. V. Pullman. 374 F. Supp. 99.5 (1973).

202 Mason v. Sams, 5 F. 2d 2.o5 (W.D. Wash. 1925).

203 United States v. Cutler, 37 F. Supp. 724 (D. Ida. 1941).
">* United States v. White, 508 F. 2d 453 (8th cir. 1974).
200 Ibid.

184

Presently pending before the U.S. Supreme Court is an appeal from
a riilinfj of the Washington State Supreme Court that State officers
may enforce regulations against Puyallup Indians within their reser-
vation boundaries on steelhead fish runs. Such a holding runs contrary
to numerous rulings on the issue of State powers over such rights on-
reservation.-"^ Moreover, such a ruling may well be a taking of a prop-
erty right to the extent it diminishes the ability of the Indian fisher-
man to take fish, thus decreasing the value of the right.^°^

Unresolved issues are squarely before the courts and will be deter-
mined in the near future. Accordingly, congressional action is prema-
ture in this area.

Off -Reservation Rights and Regulations : Limits of State Authority

The regulation of fish and wildlife resources beyond Indian reserva-
tion boundaries is inherently the domain of the various States.-"^
These powers may, however, be overridden by Federal treaty if they
would "impair a right granted or reserved by Federal law." ^°^ This
is also the case where rights were reserved to an Indian tribe on lands
later ceded where their hunting and fishing rights are still
preserved.-^"

To determine the parameters of State regulatory power over off-
reservation Indian treaty rights the particular language of the given
treaty or Federal law must be examined.-" It is the construction of the
language used which defines the extent and nature of the rights and
the kinds of regulation, if any, exercisable by a State.

Where treaties have reserved otf-reservation fishing rights "at usual
and accustomed places ... in common with the citizens of the terri-
tory" the courts have held that State regulation is limited to those
situations where it is reasonable and necessary to prevent the destruc-
tion of the resource. This "necessity for conservation" standard must
be the least restrictive necessary to assure adequate escapement of the
fish for spawning ^^^ and are allowed only when preservation cannot
be achieved by restriction of nontreaty fishing.-^^ The result is that
the State may prevent the destruction of the resource by regulation of
treaty fishing only when all other measures are inadequate.

Trihal Authority

However, where the tribe involved has promulgated their own reg-
ulations and has demonstrated the ability to enforce them over their
members, the State may not regulate the treaty fisherman. The tribe

2o«E.g., Moore v. TJ.B., 157 F. 2d 760 (9th cir. 1947) ; Leech Lake Band of Chippetca
Indians v. Herbert, supra; Arnett v. Five Oillnets, 121 Cal. Rptr. 906 (1975), cert, den.,
44 U.S.L.W. 3545 (Mar. 29. 1976).

2"7 Cf. Choate v. Trapp, 224 U.S. 665 (1912). This may be the question somewhat since the
State takes the position that the Indians have no right to artificially propagate steelhead
which constitute part of the run.

™s Geer v. Connecticut, 161 U.S. 519 (1896).

2W Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1,973).

2ioA»itomev. Washington, '420^.8. 194 (1975).

211 See, e.g. Treaty with the Yalcinas, 12 Stat. 951 ("at usual and accustomed places . . .
in common with the citizens of the territory") ; Treaty of Medicine Creek, 10 Stat. 1132
("the privilege of hunting ... on open and unclaimed lands") ; Treaty with the Walla-
Wallas, 12 Stat. 945 ("On unclaimed lands in common with citizens") ; Chippewa Treaty
of 1854, 10 Stat. 1009 ("shall have the right to hunt and fish therein, until otherwise or-
dered by the president.").

-'- U.S. v. Washington, 384 F. Supp. 312 (W.D.W. 1974).

=13 U.S. v. Washington, supra.

185

must, of course, adopt those measures shown to be necessary for con-
servation and the States may step in where an emergency situation
arises without a prior showing of the necessity to the court.^^*

It is clear that in this situation the Federal district court has be-
come the manager of the resource. No one would posit that such a
situation is the most desirable or the most efficient management sys-
tem. The reason for this situation was cogently described in the con-
currmg opinion of Judge Burns when U.S. v. Washington was af-
firmed by the United States Xinth Circuit Court of Appeals :

I deplore situations that make it necessary for us (District Court Judges) to
become enduring managers of the fisheries, forests and highways, to say nothing
of tlie school districts, police departments and so on. The record in this case,
and the history set forth in the Puyallup and Antoine cases, among others, make
it crystal clear that it has been recalcitrance of Washington State officials (and
the local non-Indian commercial and sports fishing allies) which produced the
denial of Indian rights requiring intervention by the District Court. This re-
sponsibility should neither escape notice or be f orgotten.^^

This language is reminiscent of that delivered by Justice Miller in
United States v. Kagama nearly 100 years ago when he wrote :

They (the Indians) owe no allegiance to the States and receive from them no
protection. Because of local ill feeling the people of the States where they are
found are often their deadliest enemies."^"

Need for Federal Involveinent

Tribal enforcement over members exercising rights off-reservation
may be to no avail absent effective State enforcement of nontreaty
fisheries. Most of the treaty fisheries in Washmgton, for instance are
found in the inland waters by troll and recreational fishing vessels.
Federal regulation therefore becomes a prerequisite to any meaningful
allocation between treaty and nontreaty inland fishery. Likewise there
must be workable regulations pursuant to the International Pacific
Salmon Fishery Commission to provide sufficient opportunity for
treaty fishermen to take fish.

Where a State either fails to provide enforcement to protect the
fishery or is unable as a result of its own laws the Federal Government
must play a dynamic role. At present there is only minimal Federal
enforcement authority. ^\niere it proves to be inadequate the responsi-
bility will fall once again upon the beleaguered Federal district court.
Congress should act in this area where indicated.^^^

Other off-reservation rights held by Indian people do not carry the
qualification that they be shared "in common with" nontreaty users
of the resource. In such situations, the rationale for State regulation
is lost and has been so held by some courts.-^^ Decisions have also indi-
cated that such rights may be subject to State regulation for conser-
vation purposes.-^^ There has not yet been a United States Supreme
Court review of this issue.

^* Piivalhtp Tribe v. Department of Game, nni U.S. -329 (1068).

215 r.S. V. Washinoton, 520 F. 2d 676, 693 (9th cir. 1975) (concurring opinion).

"• 118 U.S. 375, 383-84 (1886).

*i" See, "Action is Needed Now To Protect Onr Fishing: Resources," Report to Congress by
the Comptroller General of the United States, Feb. 18, 1976.

estate V. Arthur, 74 Ida. 231. 261 p. 2d 133 (1053) : State v. Tinno 94 Ida. 639, 497
p. 2d 1386 (1972) ; People v. Jordreau, 384 Mich. 539. 185 N.W. 2d 373 (1971).

"8 State V. Tinno, supra. Indicated in the portion of the decision addressing fishing rights
that may be so limited; People v. LeBlanc, 55 Mich. App. 684, 223 N.W. 2d 205 (1974),
Aff'd 399 Mich. — (decided Dec. 27. 1976).

92-185—77 13

186

The Idaho Supreme Court has recently ruled that aboriginal rights
to hunt and fish survive where they have never been extinguished,
but that the authority of the State for purposes of conservation
remains.^^°

SummaTy

Although the issue was not addressed in these cases it would follow
that the tribes affected would have regulatory powers over their mem-
bers. Indian regulation would fulfill goals which cannot be reached by
State regulation of the exercise of treaty rights (e.g. allocation of
sites and times). Tribal powers therefore provide an important ad-
junct to the regidatory scheme.

Hunting, fishing, trapping, and gathering rights of American In-
dian peoples are an important aspect of their subsistence, economic,
cultural, and religious heritage, and were reserved by Indian people
in treaties or for them as a part of the lands set aside for their ex-
clusive use and occupancy.

American Indian hunting and fishing rights have been exclusively
litigated and many jurisdictional questions have been answered by
the courts. Such litigation has an extensive history reflecting great
sums of money spent by Indian tribes and individuals to litigate and
relitigate rights guaranteed under age-old treaties and agreements.

The hunting and fishing rights of Indian peoples have been frus-
trated and in many cases completely cut off due to the exercise of State
police powers directed toward Indian people when litigation was
pending and in some cases despite favorable decisions to Indian peo-
ple. Likewise States have failed in some instances, particularly in
Washington State, to enforce fishing restrictions against non-Indian
fishermen violating Federal court ordered cessation of fishing.

There has been a serious depletion of fish and game resources
brought about by the elimination and degradation of fish and wildlife
habitat, fish-passage losses at mainstream dams, and rapidly growing
use by commercial and sports interests on fish and wildlife resources.

Management of the fish and wildlife resources clearly requires the
cooperative efforts of Federal, tribal and State authorities in regula-
tion of allowable harvests and in stimulation of new resources.

Indian tribes have hunting and fishing rights which are an integral
part of transitory or migratory resources such as marine fisheries and
deer herds as well as rights shared in common with non-treaty users of
the resource at off-reservation sites.

Many Indian tribes are carrying on substantial enhancement and
management effoiis of their own with limited resources and insufficient
support from State and Federal entities.

Although some tribes have wildlife and fishery biologists and other
necessary experts, most require additional personnel and training pro-
grams to augment and expand programs and to implement new meas-
ures desirable for enhancement and management of the resource.

Revenues derived from the harvest of fish and wildlife resources
(e.g., licensing fees) on some reservations provide the foundation for
significant economic activity for the tribe and its members.

^20 state V. Coffee, No. 12040 (S. Ct. Idaho, decided Nov. 23, 1976).

187

Recom mendations

The Cominlssion recommends that:

1. The Department of the Interior aid Indian tribes in the develop-
ment of comprehensive management plans for tish and wildlife re-
sources. Indian people must be involved in the management of their
own trust resources.

2. The executive branch undertake action to stimulate the tribes and
States to enter into cooperation agreements in the management, alloca-
tion, and enforcement of off-reservation fishing activities by botli In-
dians and non-Indians. Such cooperative agreements must recognize
the rights of the Indians in the fish resources and their responsibility
ill the management and allocation of that resource.

3. Congress appropriate funds necessary to aid individual tribes and
intertribal organizations in the development and management of fish-
ery programs.

•I. Congress enact legislation authorizing the Department of the In-
terior (Parks and Wildlife Division) with standby authority to allo-
cate fish resources and enforce such allocations as to Indians or non-
Indians or both, whenever the States or the tribes fail to regulate
those persons under their respective jurisdiction.

Federal Constraints on Tribal Government

A. the INDIAN reorganization ACT OF 1934

Chapter 1 of the report of Task Force Number Two sets forth an
extensive discussion of the relation of the Department of the Interior
to tribal government. The relationship of that Department, or the
Bureau of Indian Affairs, in political matters is a nagging and con-
tinual problem. These problems surface in a number of settings: (1)
Secretarial involvement in election disputes; (2) Secretarial involve-
ment in ratification and approval of tribal amendments to constitu-
tions and bylaws; (3) Secretarial involvement in review and approval
of ordinances or laws adopted by tribal councils; and (4) ultimately,
the claimed authority of the Secretary to revoke tribal constitutions
which were not adopted under the Indian Eeorganization Act and thus
eft'ectively suspend tribal government.

There are five basic sources of authority which the Secretary invokes
as support for these basically political decisions : (1) Sections 2 and 9,
title 25 of the U.S. Code which vest the management of Indian affairs
in the Commissioner of Indian Affairs and authorize the President to
prescribe such regulations as he might think fit for carrying into effect
the various provisions of Acts of Congress relating to Indian affairs;
(2) section 16 of the Indian Eeorganization Act of 1934 ^^^ which
authorized Indian tribes to reorganize under that Act and adopt con-
stitutions and bylaws subject to approval of the Secretary; (3) the
general trust responsibility, particularly as exemplified by section 81
of title 25 restricting the rights of contract with relationship to trust
assets ; (4) the judicially established guardian- ward relationship ; and
(5) powers of review and approval vested in the Secretary by tribes

221 25 U.S.C. 476.

188

which, adopted constitutions pursuant to the Indian Reorganization
Act.

As noted by Task Force Number Two, the Federal officials have in
the past exercised heavy-handed control over the day-to-day opera-
tions of tribal government.^^^ In 1934 when the Indian Reorganization
Act was enacted, some degree of regulatory supervision may have been
.iustified. Many tribes were moving for the first time to a constitutional
mtrm of government. But, the tribes have now had 40 years of experi-
ence in the operation of their governments. And, the enactment of
title II of the Civil Rights Act of 1968 with its broad procedural safe-
guards for persons affected by the actions of tribal governments con-
tradicts the need for the pervasive administrative control which has
so often characterized the relation of the tribes to the Department of
the Interior.

The right and power of Indian tribes to form their own govern-
ments exist independent from Federal statute. This was well-recog-
nized at the time the Indian Reorganization Act was enacted.^^^ But,
due to the Federal policies which had been pursued in the latter half
of the 19th century and the first half of the 20th century, many of the
traditional instruments of tribal government had been drastically
weakened and some lost for good. This was recognized by Congress
when it included section 16 of the IRA authorizing tribes to organize
under that Act if they elected to do so.

It is ironic that this Act, which was intended to strengthen the
governments of Indian tribes, is now generally regarded by the Indian
people as an impediment to their governmental functions. The Act
itself presents certain problems since it requires that the constitutions
and bylaws adopted by tribes pursuant to the Act be ratified and
approved by the Secretary. But, more significantly, much of the
authority of the Secretary to pass upon the validity of tribal enact-
ments stems from provisions of constitutions which tribes adopted
pursuant to the Act. These provisions, taken from a "model" con-
stitution drafted by the BIA after passage of the 1934 Act, commonly
provide that the laws adopted by the tribe shall not take effect until
such laws have been reviewed and approved by the Secretary,

This review process has been generally condemned as perpetuating
a paternalistic relationship between the Department of the Interior
and tlie tribes. Paternalism aside, it has also impeded tribes in their
-effoi'ts to assert authority within reservation boundaries through the
rsimple expedient of a Secretarial veto of tribal ordinances which he
-conceives as being beyond the power of a tribe. Thus, for years, the
Department denied that tribes could exercise any jurisdiction over
non-Indians even though there was no clear statute and no judicial
decision to affirm the Department's position.^-* The efforts of the
Colville Tribe to impose a water use code within the boundaries of
their reservation was thwarted by the refusal of the Secretary to
approve their proposed code.^^^ In a most extraordinary case, the
Coeur dAlene Tribe was denied permission to enact a code provision
regulating the playing of an Indian stick game within their reser-

2=2 Task Force No. 2 Report, p. 13.
2" Sol. Op., Oct. 25, 1934, 55 I.D. 14 at 30-32.
2'* Sol. Op. 17-36810 dated Auf?. 10, 1970.
'^ This problem is now in litigation.

189

vation even though a Federal court had held that the playing of the
game was not within the purview of Federal law. In this case, De-
partmental veto of the tribal ordinance was instigated at the request
of the Department of Justice.^-^

Aside from problems relating to Secretiarial review of tribal ordi-
nances, on at least two occasions the Secretary had claimed the
authority to revoke outright the constitutions of tribes which had'
not organized under the Indian Reorganization Act. Thus, in 1961,-
the Secretary of the Interior withdrew recognition of the 1927 con-
stitution and bylaws of the Fort Peck Council on the authority of
25 U.S.C. 2, stating that in his opinion such action was in the best
interests of the Indians involved. The legal opinion upon which the
Secretary based his action carefully stated that his action was not
based upon any ''trustee" relationship (which the opinion notes is
founded in property) but rather on the "guardian- ward" relation-
ship.^"

In 1972, the Commissioner of Indian Affairs withdrew his recog-
nition of the 1932 constitution of the Prairie Band of Pottawatomie
Indians, again on the authority of 25 U.S.C. 2. A complaint filed
against the Commissioner of Indian Affairs in Federal district court
was ultimately dismissed for lack of subject matter jurisdiction. It
was not until mid-1975 that a new constitution was adopted by the
tribe. In the meantime, the affairs of the tribe were handled by a
spokesman appointed by the Bureau of Indian Affairs without any
apparent legal authority.^^*

During the course of the Commission's investigative studies, Indian
people have related scores of instances wherein the BIA has flagrantly
violated not only its mandated role, but the basic principles of the
United States trust responsibility. These practices of the Bureau of
Indian Affairs are in clear violation of Federal policy and should be
halted immediately. Tribal governments must have mechanisms to
insure that the Bureau of Indian Affairs upholds the trust respon-
sibility of the Federal Government. Tribal governments must and
should have equitable remedies to prevent further unwarranted BIA
interference in the operations of tribal governments.

Data gathered by this Commission over the last year is testimony
to the fact that the Bureau of Indian Affairs has acted directly to
undermine tribal governments,^^^ and has refused the technical, legal,
and financial assistance it is mandated to provide.

Special allegations witness the Bureau of Indian Affairs:

1. directly interfering in tribal elections.^^°

2. usurping one of the most basic powers of self-government — -
the right to determine membership, by conditioning BIA funding
on BIA-determined membership qualifications.^^^

-« Lettpr dated Apr. 20. 1967 from Acting Apst. Sol. to Commissioner of Indian Affairs.
See app. IT. part IT. ex. .5 of Task Force No. 9 report.

^ Sol. On. IA-1229 dated Jan. 19, 1961. to Secretary of the Interior.

2^'' Task Force No. 9 report, app. II, part I. ex. 2.

2» Tribal Government Task For'-e F'eld Consultant Report on Standing Rock Sionr
Standincr Tock Reservation, p. ?> : Tribal Government Task Force Field Consultant Report on
Chevenne River Slo'.ix. Chevenne River Reservation, p. .3.

=3" Bureau of Indian Affairs Support for the Functions of Tribal Government. Case Study
of Pine Ridse Reservation ; Special Report to the Tribal Government Task Force, American
Indian Policv Review Commission, pp. .32-.3G.

=31 Tribal Government Task Force Fielil Consultant Report on Cheyenne River Sioux.
Cheyenne River Reservation, p. 11 ; Tribal Government Task Force Field Consultant Report
on Fort Berthold Reservation, p. 9.

190

3. playing off one tribe against another in competition for
funding.^^^

4. conditioning BIA funding or delivery of services on the level
of cooperation between tribal members and agency or area office
employees.^^^

5. failing to respond to tribal requests for legal assistance.-^*

6. failing to respond to tribal requests for financial assist-
ance.^^^

7. failing to respond to tribal requests for technical assist-
ance.^^^

8. failing to assist tribes in asserting their sovereign powers.-^^

9. entering into leases or contracts on behalf of the tribe with-
out tribal approval.^^®

10. specifically acting to diminish tribal exercise of powers of
self government.^^^

11. terminating tribal employees from area office without noti-
fication to tribe.^*"

12. allocating judgment funds without approval of tribal
council.^*^

13. displaying nepotism and favoritism in agency office hiring
practices.^*^

14. withholding information on tribal trust resources from
tribe.243

15. advisins: tribal members to sell their land to qualify for
State welfare.^"

16. failing to act upon tribal requests for Secretarial approval
of contracts.^*^

ssaihicl.. p. 11.

*^'' Trlhnl Onvprnment Task Force Field Consultant Report on Fort Berthold Reservation,
p. 9 ; Tribal Government Task Force Field Consultant Report on Ulntah-Ouray Reserva-
tion, p. 5 : Tribal Government Task Force Field Consultant Report on Northern Cheyenne
Reservation, p. 5 : et nl.

2-'-* American Indian Policv Review Commission public hearings conducted by Task Forces
3 & 4. Superior, Wis. : :Mar. 10-20. 1976 ; II, p. 21 ; Tribal Government Task Force Field
Consultant Report on Pala Reservation, p. 1 ; ,Tribal Government Task Force Field Consul-
tant Report on Zuni Reservation, p. 2.

235 Tribal Government Task Force Report on Santa Rosa Rancheria, p. 4 ; American In-
dian Policy Review Commission Public Hearings conducted by Task Forces 2 & 4 ; Phoenix,
Ariz. : .Tune 2-3, 1976 ; pp. 104-106.

238 American Indian Policv Review Commission Public Hearings conducted by Task Forces
1. 3 and 4; Yakima, Wash. : Feb. 4, 1976: p. 42S ; Tribal Government Task Force Report
on Fort Berthold Reservation, p. 9 ; American Indian Policv Review Commission Public
Hearings conducted by Task Forces 2 and 4 ; Phoenix, Ariz. ; June 2-3, 1976 : pp. 104-106;
Tribal Government Task Force Report on Rocky Boy's Reservation, pp. 2-4 ; Tribal Govern-
ment Task Force Report on Laguan Pueblo, pp. 7-8 ; Tribal Government Task Force Report
on Northern Cheyenne Reservation, p. 7 ; Tribal Government Task Force Report on Pala
Reservation, p. 2.

^^ Tribal Government Task Force Report on Quinault Reservation, p. 6 ; Tribal Govern-
ment Task Force Report on Rocky Boy"s Reservation, p. 2.

23S Tribal Government Task Force Report on Uintah-Ouray Reservation, p. 1.

239 Tribal Government Task Force Report on Seneca Nation, Allegany Reservation, p. 3;
Tribal Government Task Force Report on Makah Reservation, p. 6 ; Tribal Government Task
Force Report on Fort Berthold Reservation, p. 5 ; Tribal Government Task Force Report
on Cheyenne and Arapaho Tribes of Oklahoma, p. 2 ; Tribal Government Task Force Report
on Quinault Reservation, p. 5 ; Tribal Government Task Force Report on Standing Rock
Reservation, p. 3.

240 Tribal Government Task Force Report on Northern Cheyenne Reservation, p. 8.

*'i American Indian Policy Review Public Hearings conducted by Task Forces 2 and 4 ;
Phoenix-. Arizona ; June 2-3, 1976 ; p. 135-136.

242 Tribal Government Task Force Report on Fort Berthold Reservation, p. 9.

243 Tribal Government Task Force Report on Quinault Reservation, p. 6.

2" Trilial Government Task Force Report on Creek Tribe of Oklahoma, p. 5.

243 Tribal Government Task Force Report on Navajo Reservation, p. 5-6 ; Tribal Govern-
ment Task Force Report on Makah Reservation, p. 6 ; Tribal Government Task Force Report
on Northern Cheyenne Reservation, p. 3.

191

17. failing to act upon tribal requests for Secretarial approval
of tribal constitutions, constitutional amendments, ordinances,
resolutions, charters.^*^

18. mismanaging tribal trust assets and resources.^*'^

19. obstructing tribal negotiations with Federal agencies.-*^

20. discouraging tribes from contracting Federal programs
which would obviate Bureau services.-*^

21. distributing Federal program moneys in an arbitrary man-
ner, relying upon the broad discretionary power of the Secre-
tar}'.23o ^

These problems are further compounded by the fact that tribes have
no effective remedy to counter them. Tribes are beholden to the Bureau
for technical assistance, most services, and financial support. They are
confronted with an administrative structure that takes care of its
own — Bureau employees fear the accomplishment of Indian preference
within the Bureau.-^^ This condition works to prevent the disclosure
of error or malintent, and frequently acts to eliminate virtually any
possibility of tribal redress of grievances. Tribal requests for assist-
ance are not responded to. Tribal requests calling for the transfer of
an agency superintendent or area director are ignored.-^- Tribal evalu-
ation of services rendered by the Bureau is, in many places, nonexist-
ent. Thus, the transgressions of the Bureau continue to flourish in a
bureaucracy which is not accountable nor responsive to Indian people.

To remedy these serious problems, the Commission calls for sub-
stantial amendment of the Indian Reorganization Act and the provi-
sions of 25 U.S.C. sec. 2 which vests the management of Indian affairs
in the Commissioner of Indian Aiffairs, and sec. 81, which restricts the
right of contract regarding Indian trust property.

In addition to amendment of section 16 of the IRA (25 U.S.C, sec.
476) . it appears other protective provisions relating to land protection
and acquisition, etc., of that Act should be extended to all tribes
without condition upon their acceptance or rejection of the Act. This
recommendation is premised on the finding of Task Force Number
Two that there is practically no discernible difference in the treatment
or relationship of IRA tribes and non-IRA tribes to the Federal
trustee.

=*« Tribal Government Task Forre on Laguna Pueblo, p. 2 ; Tribal Government Task Force
Force Report on Fort Berthold Reservation, p. 4 : Tribal Government Task Force Report on
Pvramid Lake Paiute Reservation, p. 2 ; Tribal Government Task Force Report on Uintah-
Oiirav Reservation, p. 4 ; Tribal Government Task Force Report on Creek Tribe of Oklahoma,
p. 3. '

2<" American Indian Policv Review Commission Public Hearings conducted by Task Forces
2 and 4 : Phoenix, Arizona ; June 2-.S. 1976 : p. 221-222 : Tribal Government Task Force
Report on Northern Chevenne Reservation, p. .3-4 ; Tribal Government Task Force Report on
Standiucr Rock Reservation, p. 7 : Tribal Government Task Force Report on Navajo Reserva-
tion, p. .5-6 : Tribal Government Task Force Report on Makah Reservation, p. 6 ; Tribal
Government Task Force Report on Zuni Reservation, p. 8.

2« Interview with Officer of Intergovernmental Relations and Regional Operations Divi-
sion. Office of Manajreraent and Budget ; July 9, 1976 ; Tribal Government Task Force Report
on Makah Reservation, p. 9.

2« Interview with Officer of Intergovernmental Relations and Regional Operations Divi-
sion. Office of Management and Budget : July 9. 1976.

230 Tribal Government Task Force Report on Comanche Tribe of Oklahoma, p. 6.

-^ Bureau of Indian Affairs Management Study : Section 2 Study Provision : Report on
BIA Management Practices to the American Indian Policy Review Commission ; September,
1976 : p. 34.

^- Tribal Government Task Force Report on Northern Cheyenne Reservation, p. 5.

192

RecoQnmendations

The Commission recommends that:

1. Section 18 of the Indian Eeorganization Act (25 U.S.C. 478)
which provides that no part of that Act shall apply to any reservation
wherein a majority of the adult Indians vote against its application
should be repealed. In its place Congress enact a savings clause to
provide that the rights of any tribe which has organized under the
terms of section 16 of the Act or formed a corporation under section 17
of the Act will not be adversely affected.

To accomplish this result the Commission recommends the following
specific legislative actions :

{a) Repeal section 18 of the IRA which reads as follows:

This Act shall not apply to any reservation wherein a majority of the adult
Indians, voting at a special election duly called by the Secretary of the Interior,
shall vote against its application. It shall be the duty of the Secretary of the
Interior, within one year after June 18, 1D34, to call such an election, which
election shall be held by secret ballot upon thirty days' notice.

{h) Insert in place of this section the following language :

The rights of any Indian tribe which has chosen to organize under sections
16 and 17 of the Indian Reorganization Act shall not be affected by this repeal.

2. Section 16 of the Indian Reorganization Act (25 U.S.C. 476)
which authorizes tribes to organize under the provisions of that Act
be amended : ( 1 ) to reflect specifically the fact that tribes have an in-
herent right to form their own political organizations in the form
which they desire; and (2) to provide that notwithstanding any pro-
visions in existing tribal constitutions which vest the Secretary with
authority to review and disapprove ordinances enacted by the tribal
government shall only extend to those matters directly related to the
trust responsibility over the use and disposition of trust assets. How-
ever, those tribes who wish to retain such authority on an interim
basis shall be authorized to do so.

To accomplish this result the Commission recommends amendment
of section 16 of the IRA along the following lines:

The right to choose their natural form of government is the inherent right of
any Indian tribe. Amendments to tribal constitutions and bylaws adopted pur-
suant to the Indian Reorganization Act shall be ratified and approved by the
Secretary to protect the trust assets and resources of the tribes.

In addition to all powers vested in any Indian tribe or tribal council by exist-
ing law, said Indian tribe shall also be recognized to have the following rights
and powers : To employ legal counsel, to prevent the sale, disposition, lease, or
encumbrance of tribal lands, interest in lands, or other tribal assets without the
consent of the tribe ; and negotiate with the Federal. State and local govern-
ments. The Secretary of the Interior shall advise all Indian tribes and/or their
tribal councils of all appropriation estimates of Federal projects for the benefit
of the tribe prior to the submission of such estimates to the Office of Management
and Budget and the Congress.

Notwithstanding the provisions of any existing tribal constitution or similar
document which vests authority in the Secretary to review and approve or dis-
approve proposed actions of said Indian tribes, the Secretary's authority over
Indian tribes will only extend or be directly related to the trust responsibility
over the use and disposition of trust assets. However, any Indian tribe which
may desire a continuation of their presently existing delegation of authority
to the Secretary is hereby authorized to do so.

3. Section 2 of title 25, U.S. Code, be amended to provide that the
authority of the Secretary of the Interior over tribes shall only extend

193

to actions relating to protection of tribal trust assets. Within these
limits, whenever the Secretary finds it necessary to disapprove a pro-
posed tribal initiative, he must file a written statement with the tribe
notifying them of the reason for his disapproval of their proposed
action and atford them an opportunity for a hearing.

That section 81 of title 25, U.S. Code, should be amended to accom-
plish a result similar to that proposed above, i.e., that whenever the
Secretarj' shall disapprove any proposed contract dealing with trust
assets, he shall provide the affected tribe or person with a written
statement of his reasons for disapproval and provide them with an
opportunity for a hearing.

To accomplish these results the Commission recommends amenda-
tory language along the following lines :

(a) That 25 U.S.C. 2 be amended to include the following language :

The authority of the Secretary of Interior over Indian tribes shall only extend
to those actions deemed necessary to protect tribal trust assets and resources. In
any action which the Secretary finds it necessary to disapprove a proposed tribal
government initiative, the Secretary shall take such action within 60 days of
having been oflBcially notified of the proposed tribal action by the Indian tribal
government and any disapproval of the proposed tribal action shall be accom-
panied by an opportunity for a hearing on the part of the tribe, and the Secre-
tary's decision shall be based on written findings of fact which shall specify the
reasons for his disapproval.

(b) That 25 U.S.C. 81 be amended in the following manner: The
third paragraph beginning "second * * *" shall read:

It shall bear the approval of the Secretary of the Interior and Commissioner
of Indian Affairs endorsed upon it. The Secretary of the Interior and the Com-
missioner of Indian Affair shall disapprove any such proposed contract only
after finding that the proposed contract shall endanger the trust assets or re-
sources of the tribe or individual Indian. Such findings shall be submittted
to the proposed tribe and/or Indian in written form specifying the exact reason
for disappproval.

4. Additional legislation be enacted to authorize tribes to override
Secretarial disapproval of their proposed use of trust assets. Such an
override must be coupled with a waiver of liability on the part of the
United States to the limited extent that the override may result in
loss.

Legislation be enacted that if the Secretary disapproves a tribal
government initiative, a contract or other tribal action involving the
use or disposition of a trust asset, the tribe shall be entitled to over-
ride such Secretarial disapproval using the following procedures :

(a) The Secretary shall supply the tribe with a detailed statement
of the reasons for his disapproval of their proposed use or disposition
of the trust asset, specifically setting forth the loss he believes may
result from such tribal proposal.

(h) After due consultation between the representatives of the tribe
and the Secretary or his representative, the tribal council may, by
formal resolution, elect to override the disapproval of the Secretary.
Such resolution must contain a specific waiver of liability on the part
of the United States for losses which may result as a direct result of
the tribal override.

(c) In the consultation process the Secretary shall be held to the
highest standards of care and good faith consistent with the principles

194

of common law trust in advising the tribes of the potential conse-
quences of tlie proposed tribal decision.

{d) A tribal override of a Secretarial disapproval shall not di-
minish the trust character of the asset in question. The trust responsi-
bility of the United States to aid tlie tribe in the implementation of
their decision and to protect the future well-being of the asset shall
continue undiminished.

{e) In any case in which the Secretary has reasonable cause to be-
lieve that the decision of the tribal government may not reflect the
will of the majority of the members of a tril>e he shall (may) require
a referendum of the tribal members, the expense of which shall be
borne by the United States and not tlie tribe.

(/) In the event the Secretary determines that a tribal resolution
should be put to a referendum, he must notify the tribal council within
30 days of the passage of their resolution, and he must call for such
referendum vote not more than 45 days after tendering such
notification.

B. THE ASSERTION AND IMPLEMENTATION OF FEDERAL CRIMINAL

JURISDICTION

Within the Indian country, there are at least three jurisdictions:
tribal, State and Federal. Because Federal statutes in Indian country
are preemptive and far reaching, they are discussed separately to assess
their impact and effectiveness.

Federal Criminal Statutes

(1) Jurisdictional Overview

There is a patchwork of criminal jurisdiction within the Indian
country ^^3 ^yhidi has evolved as a result of Federal enactments and
case law exceptions. The first extension of Federal criminal jurisdic-
tion into the Indian country is presently embodied in the enactment
of the General Crimes Act, 18 U.S.C. 1152. That Act applied all Fed-
eral offenses to the Indian country except for: (1) offenses between
Indians; (2) where an Indian has already been punished under tribal
law; or (3) where exclusive jurisdiction over a particular offense has
been reserved by treaty.

When a Sioux Indian killed one of his tribal fellows in 1881 and
was punished by his tribe, the United States Supreme Court held
that the Federal Government could not also punish him as it lacked
the jurisdiction to do so.^^^ Congress responded by passing the Major
Crimes Act, 18 U.S.C. 1153, providing for Federal jurisdiction over
certain enumerated serious crimes committed by an Indian against any
other person. There are presently 14 such enumerated crimes.

During the same period, the Supreme Court decided the first in a
series of cases holding where a non-Indian commits a crime against
another non-Indian within the Indian country, the local state has
exclusive jurisdiction over the offense.

2S3 Ar definerl in 18 U.S.C. 1151.

^^* United States v. McBratney, 104 U.S. 621 (1881) ; Draper v. United States, 104 U.S.
240 (1896) ; and New York ex rel. Martin v. Ray, 326 U.S. 496 (1946).

195

This matrix of jurisdiction was further supplemented bv the Su-
preme Court in 1946 when it decided that the Assimilative Crimes Act,
18 U.S.C. sec. 13, was applicable within Indian country via the
General Crimes Act."^^ Although the clear implication of such an
application would appear to limit application of the Assimilative
Crimes Act to those sorts of crimes contemplated in the General
Crimes Act (i.e., violent crimes, not moral laws or victimless crimes),
there have been situations where the Assimilative Crimes Act was
used against Indian persons within Indian country for violations of
State morals or regulatory laws.^^^

It must be conceded that the Assimilative Crimes Act as applied
by the General Crimes to Indian country fills a void where Federal
laws are not otherwise complete. However, where this application is
used by U.S. Attorneys to regulate bingo, or firecracker sales, the
application has gone beyond the scope of the General Crimes Act and
imposes an unwarranted intrusion of State morals or regulatory laws
on Indian tribes and individuals. The Department of Justice has
chosen to follow the rationale which is least consistent with Indian
sovereignty and allows for the greatest importation of State laws
onto the reservation.-" Actual prosecution, of course, depends upon
how willing U.S. Attorneys or their deputies are to prosecute indi-
vidual cases. Such a situation does not lend itself to uniform applica-
tion or evenhanded enforcement.^^^

The resultant jurisdictional pattern emerges.

Except for offenses which are i)€culiarly Federal in nature, the general
criminal jurisdiction of Federal courts in Indian country is founded upon the
General Crimes Act (18 U.S.C. sec. 1152) and the Major Crimes Act (IS U.S.C.
sec. 1153). The General Crimes Act extends to the Indian country, all of the
Federal criminal laws applicable in Federal enclaves, including the Assimilative
Crimes Act (18 U.S.C. sees. 7 and 13), and under this statute, the Federal
courts may exercise jurisdiction over offenses by an Indian against a non-
Indian and offenses by a non-Indian against an Indian. This statute (18 U.S.C.
see. 1152) does not extend to offenses committed by an Indian against the person
or property of another Indian nor to an Indian committing any offense in Indian
country who has been punished by the local law of the tribe, and because
of the exception carved out by the McBratney and Draper decisions, it does not
extend to offenses by non-Indians against non-indians.^^°

Major Crimes Act

Although the Federal Government acquired jurisdiction to prose-
cute enumerated serious crimes, there is some question as to whether
that jurisdiction is exclusive or is concurrent with the various tribes.^^"
The issue has never been specifically tested although those cases re-
ferring to the point in dicta have largely assumed the exclusive juris-
diction of the Federal Government. The earliest such case is United
States V. Whaley, 37 F. 14 (C.C. S.D. Calif., 1888) which was decided

2- Willinms V. U.S., 327 U.S. 711 (1946), footnote 3.

2^«See, U.S. V. Sosseur. IRl F. 2d 873 (7th Cir. 1950) : fconviction of an Indian for oper-
ating a slot machine) : Contra, ?/..?. v. Pakootas, No. 4777 (D. Ida., N.D. 1963) (Acquittal
of Indians partioipatinfr in a gambling game).

2=" 'Report ( f Task Force No. 4. pp. 40-42.

'^^ See. Justice and the American Indian: "Federal Prosecntion of Crimes Committed on
Indian Reservations" (1974) vol. 5, Report by the National American Indian Court Judges
Association.

258 P. Taylor. "Criminal Jurisdiction," Manual of Indian Law AILTP, 1975.

2»» See Report of Task Force No. 4, pp. 34-47. I

196

by the trial court concerning whether a guilty plea should be accepted
for manslaughter as opposed to requiring trial for first degree murder.
The defendants j)ursuant to orders from the tribal counsel, had exe-
cuted a tribal medical man for poisoning several tribal members.

Tlie court never addressed the lack of jurisdiction of the tribe to
order the execution, but must have assumed such was the case in
accepting the manslaughter plea. Whaley is, therefore, a very weak
authority on the issue of whether the ISIajor Crimes Act withdrew
tribal jurisdiction and it does not appear that it was ever cited in any
subsequent case for the proposition.

Subsequent cases have commented' on the withdrawal of tribal
jurisdiction over the enumerated major crimes and have uniformly
indicated in dicta that such was the case.^^^

juikewise, the legislative history of the Major Crimes Act, taken
together with other Federal jurisdictional acts, indicates that it was
the intent of Congress to overcome an inhibition on Federal powers,
not to limit tribal powers. Congress was responding specifically to the
holding in Ex Parte Crow Dog, 190 U.S. 556 (1883) that the Federal
forums were foreclosed and the tribe had exclusive powers. Moreover,
the lack of express congressional language taken with well-accepted
canons of construction concerning Indian rights would mitigate in
favor of a finding of concurrent jurisdiction.-°-

It is fair to conclude that there is some question in the area which is
susceptible to congressional clarification. Because of the needs of In-
dian connnunities which will be discussed below, it is suggested that
clarification take form in favor of concurrent jurisdiction.

Major Crimes Enforcement

Of these reservations where States have not undertaken criminal
jurisdiction pursuant to Public Law 83-280, United States attornej^s
w^ere responsible for prosecuting violations of the Major Crimes Act.
Eighty percent of the Indian cases presented for prosecution are
declined by the office responsible for their prosecution. Thus, the
primary, if not sole, source of major crimes enforcement available to
these reservations declines to prosecute 4 of eveiy 5 cases brought
before it. The effect is devastating, the reasons and considerations are
manifold.

There can be no discernible standards against which any decision
to prosecute or decline can be measured. Decisions are rarely reported
back to tribal officials or police. Prosecutors rely heavily upon agents
of the FBI to the exclusion of the BIA and tribal law enforcement
officers.

Those closest to the communities and to the scene of any alleged
crime are the BIA and tribal police. They are usually first on the
scene, and are most proximate in the investigation and in apprehen-
sion of the perpetrator. However, where the FBI agent is the only one
who can successfully present a case to the prosecuting U.S. attorney,
local officers are usually faced with preserving the scene of the crime
for an entire reinvestigation by the FBI agent. Time frames awaiting
the arrival of an agent may span from hours to days.

Clearly, the hallmark of such a situation is cooperation. No set of
regulations or guidelines can obtain the same result. This atmosphere

^ See Iron Crow v. Oplala FHoux Trihe, 129 F. Siipp. 15 (W.D.S.D., 1956 aff'd. 2"1 F. 2d
89 (Rth cir., 195fi) U.S. V. LaPlant, 156 F. Supp. 600 (D. Mont., 1957) ; Glover v. U.S., 219
F. Supp. 19 (D Mont, 1963) ; Sam v U.S., 385 F. 2d 213 (10th dr., 1967).

28a For an extensive discussion sf this matter, see Task Force No. 9, app. II, part V, ex. 3.

197

of mutual respect includes the FBI a^ent as well who was described
in testimony at task force hearino;s as bein<T incorporated into the
"Warm Sprin,o;s community as a person as well as a police officer.^^^

"Where voluntary cooperation is not present and law and policy re-
quire the delivery of law and order ser-vdces. reo:ulations and guidelines
can serve to bring at least minimal accountability. Given the historical
context of unilateral assumption by this authority and responsibility
by the Federal Government it is all the more compellino;. A number
of factors would require coordination, however, as opposed to any
single action.

Primarily, Indian communities require dependable guidelines with
appropriate feedback. Optimally, tribal involvement through their
police agencies and BIA police personnel in the initial decisions om
Federal prosecution would be indicated. "Where declinations are the
case, the tribal authorities may then make timely decisions on prosecu-
tion under tribal laws.

Cooperation and coordination between tribal and Federal authori-
ties are particularly important in view of a decision recently handed
down by the United States Court of Appeals for the Ninth Circuit.^^*
That court held that where an Indian is tried in an Indian tribal court,
he cannot then be tried in a court of the United States for the same
offense, as those two courts are arms of the same sovereign and dual
prosecution would violate and guarantee against double jeopardy.-®^
Even if this decision does not survive appeal, the need for coordina-
tion will endure.

General and Asshnilatvoe Crimes Act

Early in the evolution of the Nation, there was a hiatus in the ap-
plication of laws applicable to Federal territories and enclaves.-*^^ As
a result, the Congress passed the Assimilative Crimes Act ^"^^ designed
to import the laws of the surrounding State for those crimes for which
there was no defined Federal prohibition. The purpose of this Act was
to fill a jurisdictional void which existed within enclaves which were
under the "sole and exclusive" jurisdiction of the United States. As an
analytical matter where tribes have their own scheme of laws within
a reservation, there would be no such hiatus.

Not long after the Assimilative Crimes Act, the Congress passed
what is now codified as the General Crimes Act.^^^ That law was
passed to make applicable to Indian country ^^^ those Federal criminal
laws applicable to Federal enclaves generally. It was specifically pro-
vided that these laws would not apply to crimes between Indians,
where an Indian has been punished by the local laws of the tribe ; and
those areas of jurisdiction being exclusively reserved to the tribe by
treaty.

The issue of applicability of the Assimilative Crimes Act presents a
special problem. As indicated earlier, this Act was intended to con-
trol behavior in Federal enclaves not otherwise covered by Federal

2«3 See Report of Task Force Xo. 4. p. 35 : Northwest Hearings Transcript at 274-75-
*" V.H. V. Wheeler, No 76-1509 (9th cir.. decided Dee. 2, 1976).
^2^ ^jjjg decision was expected in principle and analyzed in a paper prepared by the Indian

Ing Tribal Governments as instrumentalities of the Federal Government
-•^ 18 U.S.C. see. 7.
2«^18 U.S.C. sec. 13.
2» IS U.S.C. sec. 1152.
289 18 U.S.C. sec. 1151,

198

law by importing the laws of the State in which the enclave is lo-
cated.2' ° The problem concerns the scope of the laws imported. In prac-
tical terms, it concerns whether enforcement of Assimilative Crimes
Act is limited to the violent sorts of crimes contemplated in the Gen-
eral Crimes Act or whether it also imports all of the victimless crimes,
largely moral laws, as well.

It is clear that the Department of Justice has vacillated on this
issue, asserting only on rare occasion that general state laws are appli-
cable to Indians within the Indian countrv.^''^ It was not until 1946
that the Supreme Court even decided that the Assimilative Crime Act
was applicable within Indian country.^^^ jj^ 1950, the Act was relied
upon by the Department of Justice in prosecuting an Indian ,for
operating slot machines on an Indian reservation.^^^ There are few,
if any, cases decided since Sosseur in which the Department of Justice
relied upon the Assimilative Crimes Act to obtain a conviction of an
Indian in Federal court. Yet, that Department continues to assert that
the Act is generally applicable to Indians within Indian country.-'*

It has been a continuous tenet of Federal-Indian policy to leave
tribes free to govern themselves under their own code of laws within
the Indian country. The wholesale adoption of State laws onto reser-
vations by way of the Assimilative Crimes Act runs completely counter
to that long standing Federal policy. It is the tribe, not the State or
the Federal Government, which should determine whether Indian
stick games may be played within the reservation, whether bingo
games will be sanctioned, whether firecrackers may be sold within the
reservation.^^^ It may well be that Congress w^ould want to control
certain activities of a more substantial nature, but this should be done
by specific legislation and only after a showing that the tribes them-
selves have failed to pass regulatory laws.

Recommendations

The Oommiission recom/mends that:

1. The Department of Justice issue regulations or orders directing
U.S. attorneys to accept criminal referrals from qualified tribal and/
or BIA police or investigators.

Congress hold oversight hearings to see that this recommendation
is accomplished or receive an explanation why it should not be done.

2. Congress hold oversight hearings with representatives of the
Department of Justice, BIA and tribal authorities, particularly police
and judges to inquire into the jurisdictional relationship of the tribal
and Federal courts and ascertain what legislation, if any, is needed as
a consequence of this decision.

3. Congress hold oversight hearings with representatives of the De-
partment of Justice and Interior and with Indian tribal authorities to
ascertain the scope of this problem.

4. Corrective legislation, if any is needed, must be premised on the
continued protection of tribal self-government. The scope of the appli-

2™ See U.S. V. Slmrptvack, 335 286 (1958).

2^ See Report of Task Force No. 9, Law Revision, pp. 78-82.

2" Williams v. U.S., 326 U.S. 711 (1946) .

2^' U.S. V. Sosseur, 181 F. 2cl 873 (7th dr., 1950).

2^* Paper delivered by Roger Adams, Phoenix, Ariz., U.S. Attorney's Conference on Indian
Matters, January 27-29, 197.5. It is instructive to note that the author of that paper takes
the view that narrow construction of the exceptions in the General Crimes Act Is appropri-
ate "so that . . . Indians committing such offences against the 'community' can be prose-
cuted in Federal Court." That position is especially interesting in view of the history of the
Acts involved reflecting a desire to control behavior of non-Indians in the Indian country,
Dot Indians vis-a-vis the non-Indian community.

273 See Report of Task Force No. 9, pp. 78-82.

199

cation of the Assimilative Crimes Act must be strictly limited. It must
be recognized and accepted that the laws of the tribes will not always
conform to the laws of States in which their reservation lies. This is
the meaning of self-government.

0. PUBLIC LAW 2 80

Overview

Passed by Congress during the termination fever of the 1950's, Pub-
lic Law 83-280 provided for the transfer to States of major compo-
nents of the jurisdiction that the Federal Government has assumed
with respect to Indian tribes.-"'' Some States were required to accept
the jurisdictional transfer. Other States were permitted to assume
jurisdiction by affirmative legislative action. Congress specifically did
not permit any transfers of jurisdiction to States in the area of hunt-
ing, fishing, or trapping rights or the alienation or taxation of trust
property. In addition, in the civil area. States were only permitted
to extend laws of general application to Indian tribes."^

Public Law 280, which is a major incursion on tribal sovereignty,
did not when passed provide any voice to the major affected parties —
the tribes — the jurisdictional transaction had only two actore, the
Federal Government and the State. In 1968, Congress provided for
tribal consent before any further jurisdictional transfers were to
occur.-'^ This consent provision has had no remedial value for voice-
less tribes who were made subject to State jurisdiction during the in-
tervening 14 years. In 1968, Congress also amended the basic law to
allow for retrocession — the return of jurisdiction from States to the
Federal Government.-^^ Once again, the major affected parties, the
tribes, were completely left out of the decisionmaking process, the
transaction is exclusively between the States and the Federal Govern-
ment.

Public Law 280 is a failure of Federal policy on many levels. Of
prime importance is the fact that its simple existence is an affront to
tribal sovereignty; to the historical relationship between tribes and
the United States, which deliberately excludes States ; and to current
Federal policy of Indian self-determination. The Act is also a factual
failure. It was premised on notions of fostering the individual
assimilation of Indians which it has not achieved; of providing ade-
quate and just law enforcement and other services on Indian reserva-
tions, which it has not achieved; and of removing oppressive BIA
paternalism, which it also has not achieved.

The current controversies surrounding Public Law 280 narrow down
to one basic question : Should the effects of Public Law 280 be removed
and if so, how? It is the view of tlie Commission that the answer is
yes and the method is flexible retrocession at tribal option.

Legislative History of Piiblic Law 380

Several factors converged in the 1950's to produce Public Law 280.-^°
The termination fever referred to previously reflected itself in House
Concurrent Resolution 108 which announced a congressional policy to

=•« Codified as 18 U.S.'C. § 1162 and 28 U.SC. § 1S60.
^' Bryan v. Itasca County, 96 S. Ct. 2102 (1976).

278 2.1 u.S.C. § 1321-1326. The Act also provides for retrocession of jurisdiction to the
Federal Government by States.
2™ Ibid.
250 See AIPRC Tasic Force 4 Report, Federal, State and Tribal Jurisdiction, pp. 4-5.

200

end the traditional Federal-Indian trust relationship, and to integrate
American Indians, individually, into American society on an equal
footing with other citizens ^^^ — in effect, to destroy the political ex-
istence of Indian tribes. A piecemeal way of ending the federal rela-
tionship was for the Federal Government to divest itself of its au-
thority and hence its responsibility. The States, which in the INIeriam
Report -^2 were viewed as l3etter providers of services than the Fed-
eral Government, were in this context the natural recipients of this
divested authority. A curious footnote to this transfer was that the
Federal Government provided the States with no supplemental funds
to undertake their new responsibilities. A related issue supporting the
Federal desire to divest itself of responsibility was the significant dis-
satisfaction with the performance of the Bureau of Indian Affairs, the
Federal Government's prime agency in Indian affairs. Dissatisfaction
came from many sources. Felix Cohen in 1948 published a blistering
attack on the inadequacies of the Bureau.-^^ Indian people were also
often severely critical of the Bureau. The difference between the
Indian position and the view adopted by Congi-ess, however, w\as that
Indians wanted to see the Federal responsibility effectively and mean-
ingfully performed, not abolished.

Also in the late 1940's, a movement developed within Congress to
resolve conflicts betv;een the City of Palm Springs and the Agua
Caliente Band of Indians over economic development issues. This
movement resulted in 1949 in specific legislation which transferred
Federal jurisdiction, both civil and criminal, with respect to the Agua
Caliente to the State of California.-^* This Act was a precursor to
Public Law 280.

Perhaps the most frequently expressed reason for Public Law 2S0
in the congressional forum was the perception that there was a "hiatus
of criminal law enforcement on Indian reservations." ^^^ Complaints
were multiple and of difi'erent influences, concerning the quality of law
enforcement on Indian reservations; for example, the multiplicity of
laws thai were felt to apply depending on who was the victim and/or
perpetrator of the criminal act; the distance and inefficiency of Fed-
eral police providing rural sendees on dispersed reservations; the
lack of efficient justice (in the common laAv sense) for Indians from
tribal governments; and the cost of the Federal provision of law
enforcement services. A major thrust of the argument over criminal
law enforcement seems, however, to have been congressional concern
for non-Indians.

Status of Public Laiu 280 Implementation

There is considerable variation in Indian country as to the juris-
diction different States have assumed under Public Law 280. In ad-
dition, some States have asserted jurisdiction over tribes on the basis
of other Federal statutes and in some instances without benefit of any
statutory authority. Without the Federal statutory basis, States' as-
sertions of jurisdiction have no legal viability.-^^ The following chart
summarizes by State the current state of jurisdictional transfers.

281 83cl Congress, 1st session (1953).

282 "The Problems of Indian Aflmlnistration", Meriam & Associates, 1928.

283 The Erosion of Indian Rights, 1950-53 : "A Case Study In Bureaucracy" 62 Tale Law
Journal 34S (1954).

2«* The Act of October 5, 1949, 63 Stat. 705.

2«-^ Kept. No. 848, 93d Congress, 1st sess. (1953).

^ See Kennerhj v. Dist. Court, 400 U.S. 423 (1971).

201

other assumption of Case law development/

State Status re Public Law 280 jurisdiction validity of assumption

Alaska Full assumption of jurisdiction

except for IVlettakaite Re-
servation over which criminal
jurisdiction is not asserted.

Arizona Assumption of jurisdiction only

over air and water pollution.

California Full assumption of jurisdiction

Colorado No jurisdiction

Florida Full assumption of criminals and

civil jurisdiction.

Idaho Assumption of jurisdiction in

the following areas:
Compulsory school attend-
ance;
Juvenile delinquency and

youth rehabilitation;
Dependent, neglected, and

abused children;
Insanities and mental ill-
nesses;
Public assistance;
Domestic relations;
Operation and management
of motor vehicle upon
highways and roads
maintained by the
county, or State, or
political subdivision
thereof.

Iowa Limited criminal jurisdiction re

Sac and Fox puisuantto act of
June 30. 1948, ch. 759, 62
Stat. 1161.

Kansas. No jurisdiction Criminal jurisdiction pursuant

to act of Junes, 1940, ch. 276,
54 Stat. 249.

Louisiana do

Maine do Issue open toi^question, re

Federal recognition of pre-
viously only State recognized
tribes.

Michigan do State asserts historically; no

apparent legal basis.

Minnesota Full assumption of jurisdiction

except for the Red Lake
Reservation, and criminal ju-
risdiction has been retro-
ceded over Bois Forte — Nett
Lake Reservation.

Mississippi No jurisdiction

Montana Assumption of limited civil and McDonald v. District Court 49S

criminal jurisdiction on Flat- p. 2d 78 (IVlont. 1972) court

head Reservation in the held constitutional disclaimer

following areas: amendment and that statutory

Compulsory school attend- action was sutficient. ^_

ance; Kennerly v. District Court of 9th

Public welfare; District of Montana, 400 U.S.

Domestic relations (except 423 (1971). Consent provision

adoptions); of the 1968 amendments

Mental health and insanity; literally construed to void

care of the infirm, aged, tribal council consent where

andafflcted; statutory language referred

Juvenile delinquency and majority of the tribe.

youth rehabilitation;
Adoption proceedings (with
consentoftribalcourt);
Abandoned, dependent, ne-
glected, orphaned or
abused children;
Operation of motor vehicles
upon public streets,
alleys, roads, and high-
ways.

Nebraska Full assumption of jurisdiction U.S. v. Brown, 334 F. Supp. 536.

that criminal jurisdiction (ex- (1971), and Omaha Tribe of

eluding traffic) re'roceJed to Nebraska v. Village Walthill

Federal Goveri ment for 460 D. 2d 1327 (1972). The

Thurston County portion of Secretary of the Interior has

Omaha Reservation. discretion to accept less than

a State offers to retroceded.
Robinson v. Wolff, 468 F. 2d 438
(1972), Public Law 280 held
not to be an unconstitutional
delegation of power reserved
to the Federal Government.

92-185 — 77 14

202

state

Status re Public Law2S

Other assumption of
jurisdiction

Case law development/
validity of assumption

tlevada.

New Mexico.

Originally asserted over some
reservations. Now retroceded
for all reservations, except,
for Ely Colony.

No assumption pursuant to
Public Law 280.

New York

North Carolina-

North Dakota Civil jurisdiction extended

where tribe or individual
Indian consents. No tribal
consent— individuals have
consented.

Oklahoma No jurisdiction pursuant to

Public Law 280.

Oregon Full assumption of jurisdiction .

except for Warm Springs
Reservation.

South Dakota No jurisdiction. Attempt at .

assumption defeated in state-
wide referendum vote in 1966.

Utah - Nojurisdiction.State has passed

a statute establishing tribal
consent mechanism for as-
sumption.

Washington Assumption of jurisdiction is .

piecemeal and varies per
Individual tribe:

1. State assumed full civil

and criminal jurisdic-
tion with respect to —
Col vi lie, Chehalis,
Nisqually, Wlackleshoot,
Quileute, Skokomish,
Squaxin Island and
Tulalip.

2. State assumed full crim-

inal and civil jurisdic-
tion on fee patented
lands reSwonomish.

3. State has assumed civil

and crin^iinal jurisdic-
tion with respect to
only nontrust land, in
the following aieas:

(a) Compulsory

school laws;

(b) Public

assistance;

relations;

(d) Mental illness;

(e) Juvenile

delinquency;
(() Adoptions of

minors;
(g) Dependent:

Status;
(h) Motor vehicle
operations on
public roads.
On the following reservations:
Hoh, Kalispel, Lower Elwha,
Lummi, Makah, Nooksack,
Port Gamble, Port Madison,
Puyallup, Quinault, Shoal
Water, Spokane
Retrocession of some with re-
spect to Port Madison Reser-
vation.

Wisconsin Full assumption of jurisdiction

except that jurisdiction has
been retroceded over the
Wlenominee.Reservation.
Wyoming No jurisdiction..

Claim of criminal jurisdiction re
particular felony crimes pur-
suant to New Mexico Con-
stitution art. 19. sec. 14. No
apparent legal basis to State
claim.

State jurisdiction pursuant to
act of Sept. 13, 1950 ch. 947,
64 Stat. 845.

Full jurisdiction assumed by
State pursuant to citizens of
state provision of the treaty
of 1835, and by court decision
Eastern Band of Cherokee v.
U.S. and Cherokee Nation, 117
U.S. 288(1886).

Criminal jurisdiction on Devils
Lake Reservation, pursuant
to act of May 31, 1946, ch.
279, 60 Stat. 229.

Jurisdiction exercised in all
matters pursuant to various
Federal statutes.

Quinault v. Gallagher, 368 F. 2d
648 (9th cir. 1966), 387 U.S. 907
(1967). Defers to State court
determination of what State
action is necessary to assert
jurisdiction pursuant to sec. 6
of Public Law 280 when a State
constitutional disclaimer existsi

See also State v. Paul, 53 W. 2d,
789; 337 P. 2d 33 (1959) abd
Makah Tribe v. State, 76 W. 2d
645, 457 P. 2d 590 (1969).

203

Controversies Concetmhig the Bcope of State Jurisdiction

Over the years since the passage of Public Law 280, there has been
-significant litigation which to a large extent has narrowly defined the
scope of jurisdiction that States obtained pursuant to Public LaAv 280.
The controA-ersies generally have arisen in three areas : hunting and
fishing rights: land use controls: and taxation.

Public Law 280 is quite clear on its face that States were not given
any power to deprived Indians of "any right, privilege, or immunity
afforded under Federal treaty, agreement, or statute with respect to
huntinir, trapping or fishing or the control, or regulation thereof."' ^^'^
Xevertheless, this area has ]:)roduced much emotionalism, concern, and
litigation. The Federal courts, unlike the States, have not had much
difficulty ascertaining whether the States had received any grant of
jurisdiction in this area. The developing case law is uniquely con-
sistent in favor of Indian hunting and fishing rights free from prac-
tically all State intrusion.-^**

The area of land use controls — zoning, building codes, and the
like — has been a significant area of controversy between the trilies and
the States. If States and their municipalities were able to control this
area of regulation, they would possess enormous power over the uses
and economic potential of Indian lands. Several sections of Public
Law 280 are pertinent to this area. As noted above. States in the civil
area are only permitted to apply laws of general application to Indian
tribes, and are specifically not permitted to alienate or encumber
Indian trast property. The courts, therefore, have had to focus on in-
terpreting these concepts in factual contexts. The early case law results
were mixed, witli several Federal district courts in California uphold-
ing the application of local-municipal laws on reservations.-^^ Re-
cently, however, the Xinth Circuit ruled on this issue in a definitive
manner.'^° A unanimous three-judge panel held that Public Law 280
was only a grant of jurisdiction to apply State law, not local law, and
tliat the zoning ordinances in the particular case were encumljrances
upon trust property.

Taxation is perhaps the most vexing problem within the Public Law
280 context. State and local governments, which generally have been
under increasing economic pressure in the last several decades, have
recently focused on producing tax revenues from Indian tribes. States
and municipalities are required to provide to individual Indians the
same sei-vices that they provide to citizens generally. In spite of the
significant Federal contribution to State services generallv. and sub-
stantial moneys that specially provided for Indians, some "States per-
ceive themselves with respect to Indians as service providers without
a revenue base. A literal readinof of the exemption against taxation of
Indian trust property contained in Public Law 280 should have pre-
duded anv State activity. Where there is economic need, however
there will be attempts at producing income generating exceptions.

^' fiee note 1, supra.
32l.W.VawRewiw^04°a'olT. '''' ""■ ^^ ^°'''' "'°'^^° ^"°""^ ^^^ ^-^i-S Rights".

^ Santa Rosa Band of Indians v. Kings County, 532 F. 2d 655 (9tli cir. 1975).

204

A recent Supreme Court decision, however, lias made clear that
States have no inherent right to tax Indian property.-^^ The court spe-
cifically held that Public Law 280 did not provide the States with a
congressional grant of authority to tax.

Indian Opinion of Public Laiu 280

Although there are diverse viewpoints among the tribes on the rea-
sons why State jurisdiction assumed under Public Law 280 is inappro-
priate, there is overwhelming support among the tribles that at least
some, if not all, State jurisdiction over Lidian reservations be re-
moved."2 Many tribal leaders cite Public Law 280-s impact as having
"eroded tribar sovereignty" as a prime reason for providing for an
Indian initiated retrocession system. Of the other reasons given by In-
dians against the State retention of jurisdiction, the lack of either ef-
fective or fair law enforcement is most frequently mentioned. Of the
various reasons for Public Law 280, a major acknowledged impetus for
granting criminal jurisdiction to States was perceived as "lawlessness"'"
on and near Indian Reservations.^''^

The allegations concerning law enforcement fall into two general'
categories : the lack of adequate or any law enforcement services and
discriminatory treatment where law enforcement services are per-
formed.

The lack of law enforcement services is in part attributable to the-
rural, isolated character of many Indian reservations, and their dis-
tance from county and State law enforcement offices. These same fac-
tors effect law enforcement in rural, isolated non-Indian communities..
Another factor in the lack of services, in the view of some, is non-In-
dian antagonism. Many tribes related experiences that indicated that
police would only respond to calls when their role would be to protect
non-Indians, but would not respond either at all or effectively when
their role was to protect Indians.^^* Perliaps more serious than the al-
legations of absent police are the allegations of discriminatory treat-
ment of Indians by the entire panoply of law and justice agencies. Dis-
criminatory treatment ranges from disproportionate arrest rates, in-
equities in sentencing practices, to allegations of extreme brutality..
These allegations are not new.^^s They are common complaints from
most areas — border towns, urban areas, etc. — wherever Indian people
are found. What Public Law 280 does in this context is provide the
State and county law enforcement and justice systems with increased
access to Indians.

Although much of the focus of complaints with respect to State
services has been law enforcement, the complaints also extend to most
other social services.

Even if it were possible for the States to provide nondiscriminatory
services to the Indian reservations located within their boundaries.
Public Law 280 would still be opposed by most tribal groups. Tribes^,

2^1 Bryan v. Itasca County, supra, note 2.

282 Senate Indian Affairs Subcommittee hearings on S. 2010, Dec. 3 and 4 197.5 nart T •
see also AIPRC Task Force 4 Report, pp. 15-20 , ci.. o auu t, lyio, part i ,

Tn^i\'l^"^o"o'^T'^nr"k ?-'i^'^"^ii,'rH'';r^^.i3*^ ^^"""^ «f ^t''*® Jurisdiction over Reservation
Indians' , 22 LCLA L. Rev. 535, at 541 (1975).

"^t'^ef^J^^P^C Task Force 4 report. Extensive testimony to this effect was documented
pp. 15—20.
=9" Ibid.

205

-for the most part, did not consent to allowing States any jurisdiction.
Since the addition of the consent provision in 1968, no tribe has con-
sented to State jurisdiction. Public Law 280 also embodies the assimi-
lation philosophy which the tribes have steadfastly resisted and
fought :

They (the State) want the control but they don't know how to handle it and
they want to put all of us Indians into a category and assume that if we stick
around long enough, we will soon be white, and if — they want to throw us into
that melting pot and we are just basically telling them to go to hell. We don't
go for that.-'*

Although tlie court decision has gone far in clarifying the limita-
tions of State jurisdiction in the Public Law 280 context, it is still antic-
ipated that the mere presence of Public Law 280 will continue to pro-
vide the States with the veneer of authority. This veneer of authority
has been extremely costly to the tribes. Litigation in the Public Law
280 States has cost millions of dollars in attorneys' fees. The conflict
between the Agua Calientes and the City of Palm Springs alone has
consumed a half million dollars in legal expenses. The Colvilles ex-
pend approximately $100,000 per annum in legal fees to protect tribal
interests from State intrustions. The States still show no signs of abat-
ing this behavior ; -^^ the forums for opposing tribal interests, however,
show some signs of expansion.^^^

The continual need to fight State attempts at regulation of tribal
interests is seen by many tribal officials as a serious handicap in pur-
suing their economic and development plans. Lucy Covington, then
council member of the Colville Tribe of Washington, put it this way :

* * * we cannot fulfill completely our dream of developing our reservation
to the fullest extent possible as long as the cloud of Public Law 280 hangs over
•our heads."*®

Nationally, the Indian position on Public Law 280 has been the sub-
ject of much discussion and significant hard work at developing solu-
tions. The National Congress of American Indians has been consistent
in its opi^osition to Public Law 280's unilateral transfer of jurisdiction
to States. Frequent resolutions at NCAI conventions have addressed
t]ie issue. ^°° Other national groups have almost uniformly attacked
Public Law 280 and the termination philosophy underlying it. At the
NCAI convention in San Diego in 1974, there began a major Indian
effort to develop a unified position and a mechanism for repealing the
effects of Public Law 280. Several meetings were held in Denver in-
volving hundreds of tribal representatives which resulted in a draft
retrocession bill. This bill was introduced as S. 2010 by Senator Jack-
son in June, 1975, and since that time, major tribal support has co-
alesced behind the bill. Mel Tonasket, president of NCAI, described
the bill as reflecting :

* * * a consensus of all the Indian tribes in America. That consensus is no
accident. It was achieved only through great effort and expense.^**

"" AIPRC Task Force hearings, Mar. 1976. Testimony of Louis LaRose, Winnebago Ti-lbe,
Midwest transcript, at 409.

»>• AIPRC Task Force 4 report, p. 25.

2»s Ibid.

^ Snpra note 17. S. 2010 hearings, at p. 110.

300 AIPRC Task Force hearings. Testimony of Richard Balsiger, Montana transcript, at

s<^ Supra note 17, S. 2010 hearings, at p. 12.

206

The support for retrocession as reflected in S. 2010 or as a general"
proposition is not limited to tribes in States where Public Law 280 has
been operative. Frank Tenorio, Secretary-Treasurer of the All Indian
Pueblo Council, expressed such support in the following manner :

Public Law 280 has no effect on any Indian tribes in New Mexico unless a tribe
wishes to allow the State such jurisdiction. But even though the tribes of New
Mexico enjoy all the power of self-government, it is still important to them that
the strength of self-government depends in part on the exercise of governmental
powers by all Indian tribes. This insures generally applicable case law and con-
sistent legislation. The efforts of the two national Indian organizations, in con-
cert, along with Indian out-put throughout the nation has come out with legisla-
tion that is the Indian position.^"^

Non-Indian Opinion

While there is little diversity of viewpoint among the tribes concern-
ing whether Public Law 280 should be subject to tribally initiated'
retrocession, the divergence among the non-Indian community is'
extreme. On one side of the issue are some non-Indians, man}' of
whom have economic interests on or near reservations, who are ex-
tremely vocal in opposing any removal of state jurisdiction from'
Indian reservations. The argument favoring the retention of Pul^lic
Law 280 and perhaps extending more State control over Indian reser-
vations is intimately intertwined, with the notion that Public Law 280
somehow precludes tribal jurisdiction generally and jurisdiction over
non-Indians specifically. The major concern therefore appears to be
the "the threat" of Indians exercising some control over the behavior
and economic interests of non-Indians on Indian reservations. lit
extremis, this viewpoint argues for the destruction of reservations-
and the termination of tribal governmental identity. Somewhere iiu
the middle of the spectrum of views on Public Law 280 are non-Indian
persons, as well as some Indian persons who simply wish to see the
jurisdictional confusion settled once and for all. Some of these people
reject the idea that Indian and non-Indian governments cannot con-
currently operate, and reject the notion that government efficiency
requires one or the other to have sole control, particularly in the area
of land use control and planning. At the other end of the spectrum
appear to be some non-Indians who, as a matter of social philosophy
or practical experience, favor the total repeal of Public Law 280.

Those non-Indian persons, as well as some Indian persons who'
support Public Law 280 and oppose retrocession in any form argue'
that retrocession :

* * * will be violating our rights guaranteed by the Constitution and Bill
of Rights. Specifically you (Congress) will be recognizing a sovereign Nation
within the confines of the continental United States, the very heart of tiiis
great country, and in the Bicentennial year at that.""^

The major constitutional right that they believe will be violated
is that non-Indians are generally prohibited from participating^
through the voting franchise, in the tribal government. This situation
is complicated by the demography of some Indian reservations, the

302 Ibid, at p. 139.

3°3 Senate Indian Affairs Subcommittee hearings on S. 2010, Mar. 4 and 5, 1976, part 2,
at p. 565.

207

strongest opposition to the exercise of tribal authority appears to
come from those areas where Indians have their reservations. The
above quote is from a resident of Thurston County, Nebraska, wliich is
totally encompassed by either the "Winnebago or Omaha Reservations.

Another reason for some opposing retrocession is the view that
reservations were to be transitional entities and that tribes should be
terminated. This argument as with many termination or assimilation-
ist positions is phrased as an argument for extending ''full citizen-
ship'' to individual Indians.

Coupled with these arguments is the belief that being subjected to
tribal jurisdiction ^°* will both preclude fair justice and d.efeat Indian-
non-Indian conflict.

A non-member has a distinct fear that his authority and power to impose
fines and penalties upon the non-member would be used as profit-raising and
engendering the situation where the fine that they paid into the tribal courts-
would be distributed out into the pro rata annual payment. I think this fear is
well-founded. I don't know that it would be applied. But I do know this, that if
S. 1328 or its companion S. 2010 or any of an allied type bill is passed, that * * *
it would engender a situation that would make Wounded Knee look like a base-
ball game.^

Mrs. Elizabeth Morris, treasurer of the Quinault Property Owners
Association most of whose members live within the boundaries of the
Quinault reservation over which partial jurisdiction has been retro-
ceded, testified that fee patent owners on the reservation opposed
retrocession because of the economic uncertainty and hardship it has
caused.

Mrs. Morris and others in the several Public Law 280 States placed
the blame for their problems on the Federal Government. Testimony is
replete with references to being misled ^°® when they or their ancestors
purchased land within the boundaries of Indian reservations or re-
servations that would soon be terminated. Others who apparently
knew that they Avere locating in Indian country seemingly had no^
factual or legal idea as to what that meant.

Other persons who tend to be somewhat less vocal or emotional in
their view, but who oppose retrocession or the removal of State juris-
diction, seem to focus on the jurisdictional ambiguities that they be-
lieve retrocession would cause. Fred ISIutch, the mayor of Toppenish,
"Wash., a predominantly non-Indian community located within the ex-
terior boundaries of the Yakima Reservation, opposed the removal of
State jurisdiction, citing the developing system of concurrent tribal
State-city-county jurisdiction as not being perfect but preferable to the
situation some 20 years prior.

The mayor of Palm Springs, Calif., which has been in continual
land use jurisdictional disputes with the Agua Caliente Band,^'^' op-
posed removal of jurisdiction on the basis that only one government
could, within the same geographic boundaries, provide the land use
planning and zoning necessary to the economic vitality of the city of

30i Public Law 2S0 or retrocession neither removes nor grants tribal jurisdiction over
non-Indians.

»* AIPRC Task Force hearings. Testimony of F. L. Ingraham. South Dakota transcript,
at p. .36.

^ Ibid, at p. 113.

80" AIPRC Task Force hearings. Testimony of BiU Foster, Southern California transcript,
vol. 1, at pp. S1-S3.

208

Palm Springs, and that sliould be the municipal government of the
city of Palm Springs, representing all interests and having expertise. .
The notion that tribes will not respect the environment and will be-
irresponsible in the exercise of jurisdiction permeates the views of '
others :

Theoretically at least, it would be possible to have installed in the finest res-
idential area of a city a meat packing plant, glue factory or something of this
nature. '°^

And, finally, there are those non-Indians who support retrocession
unabashedly; interestingly, they cite the same adherence to basic
American principles as do those persons opposing tribal jurisdiction.

It is inconceivable to me that any nation be denied the right to self-determina-
tion, and in fact, it is still being denied here. We espouse liberty, yet we deny
liberty * * *. It is imperative in this Bicentennial year that we reaffirm the
principles that have made this Nation a leader among nations.

* * * on a more practical vein it is essential that jurisdiction be returned
at least to the Confederated Tribes of the Umatilla Indian Reservation. Our
country consists of 3,200 square miles and our reservation is some 285,000 acres.
Vv^ithin these vast areas state and county law enforcement simply cannot pro-
vide the protection it ought to be providing. This applies both to the Indian and
to the non-Indian living or passing through the reservation. Every law enforce-
ment official in Umatilla County is aware of these problems and most of them
have taken the opportunity to wholeheartedly endorse a return of jurisdiction
to the Confederated Tribes.'"®

Recortvnwndations

The Commission recom^mends that :

Legislation be passed providing for retrocession adhering to the
following principles :

( 1 ) Retrocession be at tribal option with a plan.

(2) A flexible period of time for partial or total assumption of juris-
diction, either immediate or long term, be provided.

(3) There should be a significant preparation period available for
those tribes desiring such, with a firm commitment of financial re-
sources for planning and transition.

(4) There be direct financial assistance to tribes or tribally
designated organizations.

(5) LEA A be amended to provide for funding prior to retrocession
for planning, preparation or concurrent jurisdiction operations.

(6) Provisions be made for Federal corporate, or charter status for
intertribal organizations (permissive, not mandatory) .

(7) There be tribal consultation with State and county governments
concerning transition activities (no veto role, however).

'(8) The Secretary of the Interior :

{a) Act within 60 days on a plan or it is automatically accepted ;
(h) Base nonacceptance only on an inadequate plan ;
(c) Delineate specific reasons for any nonacceptance ;
{d) Within 60 days after passage of the Act, the Secretary of
the Interior draft detailed standards for determining the adequacy

3'J8 AIPRC Task Force 4 report, exhibit 26.
309 Supra note 28, at pp. 563-.5G4.

209

or inadequacy of a tribal plan. Such standards sliall be submitted
to Congress who shall have 60 days to approve or disapprove such
standards.

(9) Any nonacceptance of retrocession by the Secretary of the In-
terior be directly appealable to a three judge district court in the
District of Columbia : and

The Department of Interior be obligated to pay all reasonable at-
torney fees as determined by the Federal court, except where such
appeal is deemed by the court to be frivolous.

(10) Once partial or complete retrocession is accomplished, the
Federal Government be under a mandatory obligation to defend tribal
jurisdiction assertions whenever any reasonable argument can be made
in support of them.

This recommendation is supported in concept by task forces 2, 4, 7,
and 9.

It is also supported by most tribal groups, and national Indian or-
ganizations such as XCAI and NTCA. The special report of North-
west Affiliated Tribes directly supports the recommendation; other
tribal reports also lend credence to the recommendation. The recom-
mendation in major ways parallels S. 2010, which was drafted with
major Indian input under the auspices of the National Congress of
American Indians.

The difference between this recommendation and S. 2010 relates pri-
marily to financial and technical support prior to retrocession, and
restrictions on Secretarial discretion.

Since the 1968 amendment provided for a retrocession process, ret-
rocession has occurred in five situations. The experiences of those
tribes that participated in retrocession strongly indicates a need for
resources from the beginning. Some tribes with existing justice sys-
tems probably can immediately move into a full retrocession situa-
tion. Other tribes may have the need for preparation, planning, train-
ing and long term piecemeal implementation. A significant problem
identified in both the Nevada retrocession experience and the Me-
nominee restoration/retrocession experience is the indefinitiveness that
occurs during the transition period. This transition needs to be planned
for, and the States and counties need to be consulted with so that they
understand whatever responsibilities they may retain and/or at M'hat
point their responsibilities in part or in full may end. IMany of the
smaller tribes indicated that they may wish to retain certain functions
of the States and counties, and only seek partial retrocession. In these
divergent situations, consultation is essential.

In the Nevada retrocession situation, approximately 1 year passed
from the time the State offered to retrocede and the time that the
United States accepted. In this interv-ening period, great uncertainty
occurred. Litle or no funds were made available to the Nevada tribes
to plan for transition, and when the United States accepted the retro-
cession offer, retrocession occured immediately leaving the tribes ill-
prepared. This situation argues for both limitations on the actions of
the United States and for significant preparation and transition
assistance.

210

D. TIIE 10 68 CmL RIGHTS ACT: IMMUNITY, JUDICIAL REVIEW,
AND MUTUALIIT

In 1968, Congress, for the first time, enacted legislation specifically
imposing restraints upon the operations of tribal government.^" Dur-
ing this time, there were virtually no statutory guidelines of constitu-
tional restraints upon the governments of the tribes.^^^ Title II of the
1968 Civil Eights Act tracked the provisions of the first 10 amend-
ments to the United States Constitution with certain minor, but signifi-
■cant, differences. The provisions of title II are as follows :

Sec. 202. No Indian tribe in exercising powers of self-government sliall —

1. make or enforce any law prohibiting the free exercise of religion or
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and to petition for a redress of grievances ;

2. violate the right of the people to be secure in their persons, houses,
papers, and effects against unreasonable search and seizures, nor issue war-
rants, but upon probable cause, supported by oath or affirmation, and par-
ticularly describing the place to be searched and the person or thing to be
seized ;

3. subject any person for the same offense to be twice put in jeopardy ;

4. compel any person in any criminal case to be a witness against himself ;

5. take any private property for a public use without just compensation ;

6. deny to any person in a criminal proceeding the right to a speedy and
public trial, to be informed of the nature and cause of the accusation, to be
confronted with the witnesses against him, to have compulsory process for
obtaining witness in his favor, and at his own expense to have the assistance
of counsel for his defense ;

7. require excessive bail, impose excessive fines, inflict cruel and unusual
punishments, and in no event impose for conviction of any one offense any
penalty or punishment greater than imprisonment for a term of six months
or a fine of $500, or both ;

8. deny to any person within its jurisdiction the equal protection of its law
or deprive any person of liberty or property without due process of law ;

9. pass any bill of attainder or ex post facto law ; or

10. deny to any person accused of an offense punishable by imprisonment
the right, upon request, to a trial by jury of not less than six persons.

Sec. 203. The privilege of the writ of habeas corpus shall be available to any
person, in a court of the United States, to test the legality of his detention by
order of an Indian tribe.

The primary difference between this legislation and the Bill of
Eights lies in,: (1) the omission of language prohibiting the tribal
governments from the establishment of religion; (2) specifically pro-
viding that persons in criminal proceedings may be represented by
counsel retained at their own expense; (3) the limitations imposed
upon the penal powers of Indian tribes in criminal proceedings; and
(4) the provision extending to any person accused of an offense punish-
able by imprisonment the right to a trial by jury.

Enactment of this legislation followed some 7 years of hearings and
-consideration by the Senate Subcommittee on Constitutional Eights.
Despite the long gestation period, it appears the legislation was en-
acted with some haste as an amendment to the General Civil Eights
Act of 1968.3^2

The Indian titles of the 1968 Civil Eights Act (titles II through
A^II) are an amalgam of some eight Senate bills and one Senate reso-

3w Title II, Act of Apr. 11, 1968, 82 Stat. 77 (25 U.S.C. 1302, 1303).

2^1 .<^ee discussion part A of this cli.Tptpr, Lppal Status of Tribal Governinents. pp 14-15
312 Byrnett, A Historical Analysis of the 1968 "Indian Civil Rights Act", 9 Harv. J. Leg.
-557 ( 1972) .

211

liition introduced in the first session of the 89th Conofress.^" S. 961
-^voukl have simply provided "that any Indian tribe * * * shall be sub-
ject to the same limitations and restraints as those which are imposed
on the Government of the United States by the United States Con-
stitution." S. 962 would have provided any person convicted in an
Indian court who claimed a deprivation of a constitutional right a
Tight of appeal to the U.S. district court with a trial de novo. And
S.'^963 would have authorized and directed the Attorney General of
the United States to receive and investigate any written complaint
filed by an Indian who alleged deprivation of any right conferred upon
a citizen of the United States either by the laws or tlie Constitution of
the United States, and upon finding of such a deprivation, would have
:authorized and directed him to institute such legal proceedings as
might be necessary to vindicate that right.

tVhen the legislation was finally enacted, the sweeping general ap-
plication of the United States Constitution to tribal governments was
•dropped in favor of statutorily defined rights and limitations parallel-
ing the provisions of the first 10 amendments to the U.S. Constitution
bu^ modified to fit the tribal circumstances; the general right of appeal
with trial de novo was dropped in favor of an abbreviated provision
extending the privilege of the writ of habeas corpus to any person to
test the legality of his detention by order of an Indian tribe ; and the
provisions of S. 963 authorizing the Attorney General to investigate
■complaints of deprivation of rights and bring legal actions were
dropped entirely.

The 8-year history of this legislation has revealed several problems.
Three of the task force reports devoted extensive consideration to
these problems and numerous recommendations were posed.^^*

Among the problems discussed are the following :

1. Despite the fact the jurisdictional provision for review in Fed-
eral court is limited to habeas corpus, the courts have in fact taken
jurisdiction over a nearly limitless range of complaints including elec-
tion disputes, apportionment of voting districts, membership rights,
conduct of tribal officials in their official dealings which may exceed
"the authority vested in them under tribal constitutions or may deviate
from procedures required by such documents, procedures involving
assignments of tribaily owned property for individual use, orders of
tribal councils excluding certain nonmembers from the reservation.
'On the other hand, other decisions have dismissed complaints involv-
ing similar issues as being internal political disputes beyond the juris-
diction of the court. While the courts have been unanimous in ruling
that their jurisdiction is not limited to ha))eas corpus, there clearly
appears to be confusion as to the correct reach of their jurisdiction.

•2. The courts have been inconsistent in their holdings as to the
legal standards which should be applied to the actions of tribal gov-
ernments. A few courts have held that the Act sim])ly made applica-
ble to the tribes the provisions of the Bill of Rights of the U.S.

=13 s. 961 through S. 968 and S.J. Res. 40, 89th Con?.. 1st sess. For the test of these bills
and the resolution, see hearings before the Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary, lield June 22, 23, 24 and 20. 1965. For a discussion of
jurisdictional problems arising from P.L. S3-280, see particularly the Summary Report on
the Con.^titutional Rights of the American Indian, prepared by the staff of the Subcommittee
on Constitutional Rights of the Senate Committee on the Judiciary, 6-14 (1964)

S14 Task Force No. 2, pp. 27-37 ; Task Force No. 4, pp. 129-149 ; Task Force No. 9, pp.
37-45, 87-91 and 323-330.

212

Constitution. However, the better reasoned cases and the weight of
authority has taken the view that the Act did not incorporate the
whole panoply of Federal constitutional laws but that the actions of
tribal governments must be measured "in light of tribal practices"
and that "essential fairness in the tribal context, not procedural punc-
tiliousness, is the standard against which the disputed actions must
be measured." ^^^ Variations from standard requirements of Federal
law have been sanctioned in matters involving apportionment of elec-
tion districts within a reservation and ^'^^ in the determination of
eligibility to vote in tribal elections.^^^ Such flexibility in the appli-
cation of this law is clearly necessary and desirable.

3. There is a grooving body of law under the 1968 Act that requires
exhaustion of tribal remedies before an action will be entertained in
Federal court.^^^ Plowever, the decisions have not been consistent. The
requirement of "exhaustion" parallels Federal requirements that
before Federal courts will take jurisdiction over matters which should
be determined in State forums, the plaintiff or complainant must
show either that he has sought relief before the appropriate State-
agencies and/or courts or that it would be fruitless to attempt to ob-
tain relief from those sources.

This rule is premised on the recognition that local governments:
should resolve problems of a local nature. Federal intervention should
occur only when it is necessary to vindicate a federally protected right,
and then only after a clear demonstration that the local government
will not act.

It was not the intent of Congress when it enacted the 1968 Civil
Rights Act to make Federal courts general overseers of tribal gov-
ernment. It is extremely important that the principle of exhaustionv
of tribal remedies be strictly adhered to by the Federal courts in every
jDroceeding under this Act.

4. Tribes have always enjoyed sovereign immunity under the law.^^'^
It has been held in several cases that this immunity was waived by
the 1968 Act. The most excessive application of this "waiver" doc-
trine is a holding by a U.S. district court authorizing a suit for mone-
tary damages against a tribe ^"° for the conduct of a tribal police-
officer in making an arrest.

aSTothing in the legislative history of this Act even conceivably sug-
gests that Congress intended to subject Indian tribes to suits for
monetary damages. Every governmental entity in the United States
reserves to itself the authority to determine the extent to which it
subjects its public treasury to private claims. The United States
Government has not authorized monetary claims against the Gov-
ernment for every violation by a Federal official of a right protected
by the U.S. Bill" of Rights. "

Both the Department of the Interior and the Department of Jus-
tice have forcibly argued that the 1968 Act did not waive the general

^"^ McCurdy v. Steele, 353 F. Supp. 629, 630 (D. Utah, 1973), rev'd., F. 2d (10th cir.,
1974).

3i« T)nh) Y. TJ.St., (483 F. 2fl 700 f Sth cir.. 1973).

«^'' Wounded Head v. Oolnla Hinnx Trihe. ."i07 F. 2(1 IPAl fSth fir. 1975).

318 See, e.g.. O'Neal v. Cheyenne River, 482 F. 2d 1140 (8th cir., 1973).

3" U.S. V. U.S. Fidelity and Guarantee Co., 309 U.S. 506 (1940).

«^ Loncassion v. Leekity, 334 F. Supp. 370 (D. N.M., 1971).

213

immTniitj'' of tribes from siiit.^-^ In concluding that tribal officials
should be subject to the same judicial restraints as are State officials
and no more. They were, of course, recognizing that extra -legal and
abusive conduct b^^ tribal officials would subject them to personal lia-
bility under the same legal theories that State officials are. The Com-
mission believes that this is the correct approach.

5. Section 202(7) of the Act (25 U.S.C. 1302(7)) provides that no
tribe shall impose punishment upon any person greater than "im-
prisonment" for 6 months or a fine of $500, or both. Section 202(10)
of the Act provides that "any person accused of an offense punish-
able by imprisonment" shall have the right to a trial by jury.

The limitations imposed upon tribal penal power are the same as
that imposed upon Federal magistrates hearing petty offenses in U.S.
district court. It is well established that there is no constitutional right
to a trial by jury for petty offenses. Thus, this Act imposes upon
tribes an obligation not imposed upon either State or Federal gov-
ernments. No matter how short the potential jail sentence, a defend-
ant before a tribal court is presumably entitled to a trial by jury.

Tribal courts presently handle a caseload in excess of 80,000 cases
per year. It is well known that if jury trials were liberally sought,
the tribal judicial system would quickly break down. Section 202(10)
of the 1968 Act must be amended to restrict the cases in which jury
trials may be demanded.

6. By the same token, the penal limits placed upon tribal courts
are not considered to be realistic. Little consideration went into the
establishment of these limits. Among other factors which apparently
played a part in the development of this provision was the notion
that tribal courts traditionally did not impose sentences in excess of
6 months or $500. The Senate bill proposing reform of title 18 U.S.
Code (S. 1, 94th Cong., 1st sess.) would increase the fine poten-
tial to $5,000. Task Force Number Two recommended that section
202(7) be amended to provide for fines of $1,000 and jail sentences of
1 year.

7. A problem area not dealt with under the 1968 Act but one which
poses great difficulty to both tribal and State governments is the ex-
tent to which the laws of tribes and the judgments of their courts
will be recognized by State or Federal courts. There is a reciprocal
question regarding the extent to which tribal courts must recognize
the laws and judgments of States.

Two legal concepts provide a foundation for discussion: (1) full
faith and credit, and (2) comity. An excellent discussion of the law on
this subject is contained in appendix XIII of Task Force Number
Two report. An early Supreme Court decision held that certain legal
acts of the Cherokee Nation were entitled to full faith and credit on
the theory that the government of that tribe base a relationship to
the United States similar to that of a territorial government.^^^ A sim-
ilar position was adopted in other Federal decisions in the late
1800's.^-^ In recent cases, a similar theory has been adopted by some

321 Task Force No. 4 Report, pp. 136-137 ; Task Force No. 9 Report, app. II, part V,
ex. 16.

■■>^^ Ifacker/ Y. Coa;e, 59 U.S. (18 How.) 100 (1S55).
323 Task Force No. 2 report, p. 289.

214

courts ^^* but rejected by others.^^^ Regardless of theory, it is clear that
some courts are giving due cognizance to orders of tribal coui^ts ^-^
and some are not.

The refusal of some States to recognize the laws of tribes and the
orders of their courts is clearly harmful to both the tribes and the
States. It should be noted that tribes generally are recognizing lawful
orders of State courts when an appropriate request is made.--''
Clearly, the interest of orderly administration of the law requires that
both tribes and States respect laws of each other.

Recoininendations

The Commission recommends the following amendments to title II
of the 1968 Civil Rights Act :

1. Congress enact provisions to make it crystal clear that this Act-
was not intended as a general w^aiver of sovereign immunity of the-
tribes. The holding in Loncassion v. Leekity^ 334 F. Supp. 370 (D.,.
N.M., 1971) authorizing a money judgment against the tribes should
be specifically rejected by Congress. While the courts must have au-
thority to enforce substantive aspects of the Act (as limited by the'
recommendation above), Indian tribes, like any other governments,^
must have sovereign immunity and some protection for their officers;
if they are to be able to govern fairly. Equitable actions such as man-
damus against tribal officials may be permissible, but they should be
immune from money judgments when they work within their scope of
dutv. In this respect tliey sliould be in the same position as State and
Federal officials; i.e., protected when acting within the scope of duty
but personally liable when acting beyond or outside their defined
scope of duty.

2. The jurisdictional provisions of this Act be reexamined. Habeas
corpus review is the only jurisdictional provision now included in
this Act, yet the courts have assumed jurisdiction over a broad range
of actions which do not involve detention. As the situation stands,
the jurisdictional reach of Federal courts and the remedial orders
which they feel free to enter is virtually unlimited. This is in complete
contrast to all other Federal civil rights legislation.

3. The part of this Act providing for a right to trial by jury be
amended to specify that the right guaranteed by this subsection shall
only be applicable to offenses which if charged in a Federal court
would be subject to a right to trial by jury. As section 202(10) pres-
ently reads the right to trial by jury would theoretically apply to al-
most every offense a person might be charged with, no matter how
slight the penalty.

4. The provisions of the Act limiting the penal authority of a tribe
to fines of $500 or 6 months imprisonment, or both, should be amended
to increase these figures to fines of $1,000 or 1 year imprisonment, or
both.

.5. That section 1738 of title 28, U.S. Code, should be amended to
specifically include Indian tribes among those governments to whonii

32^ Jim V. CIT Financial Corp., 87 N.M. 362, 553 P.2d 751 (1975).

s=^ Begaji v. Miller, 70 Ariz. 3S0, 222 P. 2d 624 (1950),

3=iTnKk Forcp No. 2 report. pr>. 2:!7. 240.

^ State V. Railey, 87 N.M. 275, 532 P. 2d 204 (1975).

215

full faith and credit sliall be given. The purpose of this amendment
would be to clarify and reinforce the rulings of the majority of courts
to the effect that Indian tribes are on the same footing as States and
territories with respect to the application of full faith and credit
principles.

6. Congress amend title II of the 196S Civil Rights Act to provide a
mechanism for limited appeals to United States district courts after
exhaustion of all available tribal remedies. The need for such a pro-
vision is directly related to: (1) the Commission recommendation for
according full faith and credit to tribal laws and court judgments;
and (2) to the expanding role of tribes in civil and criminal matters in-
volving non-Indians. This legislation should adhere to the following
principles :

(a) Existing Federal law permits Federal courts to review the
judgments of State courts for matters involving questions arising
under the U.S. Constitution or Federal statutes. The limited right

(ki of appeal proposed in this part would authorize Federal court
; review of tribal court decisions in both civil and criminal matters
in extraordinary circumstances involving a prima facie showing
of a denial of due process (fundamental fairness) or denial of
equal protection, and /or when the amount in controversy exceeds
a specified amount. ($10,000).

(h) Section 203 of title II of the 1968 Civil Rights Act (25
U.S.C. 1303) which extends the privilege of the writ of habeas
corpus to test the lecrality of detentions by order of Indian tribes
be amended to provide a limited right of appeal from final orders
or judgments of the highest court system of the respective tribe
in both civil and criminal matters.

(c) Appeal to the Federal court not be allowed until the pe-
titioner has exhausted all available tribal remedies. This "exhaus-
tion*' requirement include all tribal appellate remedies including
appeals to regional intertribal courts of appeal should the tribes
elect to enter into such intertribal compacts. The requirement for
exhaustion should be rigidly enforced by the courts.

(d) The review not turn on procedural requirements but rather
be premised on fundamental fairness based on the entire record.
This amendment follow the rule laid down in cases that this Act
did not "blanket in" the entire body of Federal case law but pro-
vides for interpretation in a manner consistent with the needs and
customs of tribal institutions.

Status of Tribal Go\TERX]NrENTS axd the Delivery or Services

A. federal domestic assistance progr.\m delia^ery system

Overvieio

In its first definitive statement on the question of Federal-Indian
relations, in the landmark case of Worcester v. Georglo^ the United
States Supreme Court articulated the most basic theory of Federal-
Indian law — that Indian tribes are "distinct, independent political

3=« 31 U.S. (6 Pet.) 515 (1832).

216

communities possessing and exercising powers of self-government de-
rived solely from their original sovereignty." This enduring principle
has never been overruled by congressional statute or Federal court
decision, and indeed, Federal law and policy continues to recognize
Indian tribes as independent self-governing political entities within the
Federal system.

The extent to which tribes can fully exercise their powers of self-
government is largely dependent on congressional action which is
consistent with Federal-Indian policy articulated in Worcester. How-
ever, analysis of the status of tribal governments within the Federal
domestic assistance program delivery system leads to the conclusion
that Congress and its numerous congressional committees established
to deal in a comprehensive manner with the entire scope of the Federal
responsibility have not always been conscious of the political status of
tribal governments in creating authorizing legislation for Federal
domestic assistance programs. Thus, consideration of tribal govern-
ments as constituencies eligible for Federal programs is often lacking
in the planning stages of proposed Federal program legislation, and
as a result. Federal programs intended for all United States citizens
do not reach the total target population intended to be serviced under
any particular act. The problem is further compounded by a lack of
sufficient congressional guidance to executive agencies charged with the
responsibility of service deliver3^ As a result, authorizing legislation,
program acts, and associated administrative regulations of Federal
domestic assistance programs may fail to specify tribal government
eligibility to create delivery systems which force tribal governments
to come under the jurisdiction of State and/or local governments.
Not only do such requirements clearly thwart the ability of the
tribal government to provide services to its tribal members, but these
regulations often act to extend State or local government jurisdiction
within the exterior boundaries of the reservation. Since an integral
aspect of the Federal policy towards Indian tribes is the guarantee
of independence from State jurisdiction and authority, it follows
accordingly that tribal participation in Federal domestic assistance
programs should not be conditioned on State involvement in the de-
livery of services.

Background

Tribal governments are recognized as eligible prime sponsors for
a number of Federal domestic assistance programs. The extent to which
tribal governments have taken advantage of the programs available
to them has been largely dependent on the tribal government's access
to Federal program information. This access is limited — most tribes
depend solely on the receipt of the Catalog of Federal Domestic
Assistance Programs, which details some 1,030 programs available
to State, local, and tribal governments. Often, however, tribal govern-
ment eligibility for any particular domestic assistance program is not
specified, and the tribe has no means of ascertaining statutory barriers
in the authorizing legislation or program act which would prevent
tribal government eligibility for a given program. A bill introduced
in the 94th Congress — the Federal Program Information Act (Senate
bill S. 3281), if enacted would have created a data base of all Federal
domestic assistance programs, and provided comprehensive coverao-e

217

of authorizing legislation, program acts, and administrative regula-
tions. This bill had the potential of increasing the flow of Federal
program information to tribes, and if properly constructed, would
specify tribal govermnent eligibility as well as administrative require-
ments which might aifect the prime sponsorship status of the tribal
government. In order for tribes to make effective use of Federal domes-
tic assistance programs in achieving self-determination, access to
Federal program information is crucial.

Status of Tribal Government Within the Federal Domestic
Assistance Program Delivery System

Problems surrounding State involvement in the delivery of Federal
domestic assistance programs to tribal governments stem from a
variety of sources. In some cases, authorizing legislation or program
acts of an agency which is charged with service delivery will specify
that all programs offered by that agency must be administered through
a Federal-State delivery system. In other cases, program acts or ad-
ministrative regulations of such acts require State passthrough or
sign-off on tribal plans, or moneys to be directed to the tribal govern-
ment. In such instances, even though a tribal government may be
eligible to be the prime sponsor for a Federal program, the moneys
to be received are channeled through the State by legislative mandate.
Examples of such programs are the Food Stamp Program, Johnson-
0"Malley education moneys, title XX of the Social Security Act,
Coastal Zone jianagement Program, and some Law Enforcement As-
sistance Administration programs.

Still other programs, like those offered by the Small Business Ad-
ministration, require a tribe to come under State jurisdiction, as eligi-
bilit}' is conditioned upon State incorporation of a business or organi-
zation, or the State must authorize that the enterprise is not an arm
of the tribal government. Not only are such programs in direct con-
flict with established Federal policy which would prevent the extension
of State jurisdiction within the exterior boundaries of the reservation,
these programs authorize State discretion in the distribution of Fed-
eral moneys — an authority which has been abused in many instances.
As stated by the Papago Tribe of Arizona, "by granting States au-
thority to set standards of qualification, the States are given the power
to usurp or interfere with the sovereign powers of Indian tribes to
govern themselves * * *; by granting States final authority to set
standards of qualification, the Federal Government is delegating to
the States the power to disqualify Indian tribes from participation in
Federal programs * * * ; by granting States authority to set stand-
ards of qualification, the States are given implied power to force
Indian tribes to the jurisdiction of State courts in order to meet such
standards; and by granting the State authority to select the planning
and funding agencies for Federal programs, the State is given the
latitude to select as such agencies either political subdivisions of the
State or contract providers organized by special interest groups, both
of which represent constituencies inimical to or, in competition with
Indian interests." ^-^

"-^ Letter to Mel Tonasket. president, National Congress of American Indians from the
Papago Tribe of Arizona, Nov. 3, 1975.

92-18.3—77 ^^15

218

Countless examples have been cited by Indian people who have wit-
nessed State abuses of authority granted to them in Federal domestic
assistance program legislation. These illustrations show the State
to be in clear violation of any role that Congress intended for the
State in the delivery of Federal domestic assistance programs. The
Indian community has consistently voiced strong support for the
elimination of States from the delivery system of Federal domestic
assistance programs to tribal governments. The most recent expres-
sions of this support have been issued in major policy resolutions of
the 1976 National Congress of American Indian Convention, and by
a special committee reporting to the Board of Directors of the Na-
tional Tribal Chairmen's Association. In addition, extensive docu-
mentation of tribal views concerning Federal domestic assistance
programs can be found in the Tribal Government Task Force report
to the American Indian Policy Review Commission.-^"

Analysis of all Indian input obtained to date, as well as consultation
with government officials, leads to the conclusion that tribal govern-
ments must be considered equal to State governments for purposes
of direct access to Federal domestic assistance programs. This is the
only logical action consistent with established Federal policy which
would prevent State jurisdiction over tribal governments, and elimi-
nate State abuses of authority in the delivery of Federal domestic
assistance programs to Indian tribes.^^^

Inequities of Population FoTTnula Grant Guidelines

Other problems frequently cited by tribal governments in obtaining
Federal domestic assistance stem from administrative requirements
of Federal programs which condition eligibility in formula grants
based on population. Because 82.9 percent of all Indian tribes have
populations of less than 1,000 members,^^^ many tribes are forced to
form consortiums or intertribal affiliations because of a lack of a
population base sufficient to qualify for Federal domestic assistance
programs. Small tribes particularly fall victim to this stipulation and
are forced to seek out other tribes with common areas of need and a
willingness to cooperate. Given the geographical isolation of many
small tribes and scarce financial resources which preclude travel, it
is more often than not. a sheer impossibility for small tribes to identify
other tribes in a similar situation and to make the communicatioii
necessary for such an alliance. More importantly, the principle of
sovereignty recognizes the integrity of a sovereign government to
form associations or alliances only upon the discretion of the sovereign,
and not as a function of the administrative requirements of another
governmental unit. Thus, eligibility requirements such as section 96.42

3S0 App. I, oh. IV, Tribal Government Task Force report to the American Indian Policy
Review Commission, July 1976, 46-57.

'"^Recently ndmiiiistrative agencies have clemonstratefl an increasing awareness of the
lecal status of Indian tribes relative to elieihility for participation in their aprency prnsrram.
For example, the Chief Counsel of the U.S. Urban Mass Transportation Administration
(UMTA), U.S. Department of Transportation rendered a le?nl opinion concluding that
"Indian tribes and communities are eligible to participate in UMTA grant programs in the
same manner as any local public body" citing U.S. v. Mazurie and U.S. v. Kagama (Dec. 2,
1976).

s-'s-BIA Tribes in Order by Population: 197."^ Revenue Sharing: or Equivalent for Non-
Revenue Sharing ; or State Alternate for Oklahoma.

219

of the Comprehensive Employment and Training Act (CETA)'^'
which requires that a tribe must represent at least 1,000 persons, im-
mediately places 82.9 percent of Indian tribes under the condition of
having to form consortiums or intertribal organizations to become
eligible for CETA funding and is in clear violation of the principle
of sovereign-chosen alliances.

Federal Agency Administrative Requiretnents

Generally, Indian tribal governments do not have the administrative
mechanisms and manpower available to them, comparable to State
and local governments. Thus, variations in funding cycles of each pro-
gram operated, quarterly reporting requirements for each (many
tribes prepare 100 reports annually) ^^* lack of Federal program in-
formation, and poor to nonexistent BIA support, place a staggering
administrative burden on tribes for which they are ill-equipped. Some
measures have been taken to respond to this need, particularly section
104(a) moneys appropriated under the Indian Self-Determination
and Educational Assistance Act, which provide financial support for
tribal government capacitj'-building endeavors. Although major con-
troversy surrounds the amounts available to each tribe (allocations
based on population formulas derived from 1970 census data which
is grossly inaccurate in many cases), tribal governments may now be
in the position of obtaining the ser\'ices of civil service personnel for
much needed expertise and technical assistance under the Inter-
governmental Personnel Act of 1970 ^'^ by matching salaries with
moneys available to the tribe under section 104 ( a) .

Coordination Among Federal Agencies Responsible for Providing
Federal Domestic Assistance Programs

Historically, tribal governments, like State and local governments,
have been confronted with a complex maze of Federal programs, each
of which requires a unique accounting and administrative system and
separate personnel associated with each program unit. The result is
that the tribal government must organize within itself a separate
governmental component for each program administered. The Federal
Government has continually sought to design a system to deliver Fed-
eral domestic assistance programs which would respond to the com-
munity needs of a tribal, local, or State government. The Office of
Management and Budget's circular A-102 is an example of such at-
tempts — a procedure which would act to reduce the number of differ-
ent accounting systems required for each Federal program con-
tracted.^^^ Still, there remains a vast duplication of services and data
gathering efforts conducted by each Federal agency, because of the
severe lack of coordination existing among Federal agencies responsi-
ble for the delivery of Federal domestic assistance programs. A tribe

333 Public Law 93-201, sec. 96.42.

^^ App. XIX. Tribal Government Task Force report to the American Indian Policy Review
Commission. Julv 1976 ; Tribal Government Surveys.

335 Public Law 91-648. Jan. 5, 1971 ; 84 Stat. 1909, 42 U.S.C. 4701, 4702 ; 47U-13, 4721-
28, 4741-47116, 4761-4772.

33« Office of Management and Budget circular A-102.

220

is placed in the position of having to apply for as many as 10 to 15
different programs even to approach fulfilling the need for training
and technical assistance. A delivery system and grants procedure which
would allow coordination of Federal programs at the local level, can
only be effective if the Federal agencies whose programs are involved
can coordinate the provision of services to be delivered.

Joint Funding Sinfipliflcation Act

The recent issuance of the Joint Funding Simplification Act regu-
lations (July 30, 1976) ^^^ has the potential of providing meaningful
mechanisms to the achievement of Indian self-determination. This
Act provides for a forum in which a tribal government can design a
long-range development plan to be implemented through an inte-
grated grants procedure. This Act was enacted by Congress on
December 5, 1974 :

* * * to enable State and local governments and tribal governments and
private, nonprofit organizations to use Federal assistance more effectively and
eflSciently, and to adapt that assistance more readily to their particular needs
through the wider use of projects drawing upon resources available from more •
than one Federal agency, program, or appropriation."^

The process enabled by the Act involves negotiation between the
tribal government, the Bureau of Indian Affairs, and Federal agencies
for whose programs applications are being made. Agency representa- •
tives are empowered to waive administrative requirements which might
prevent the tribal government from access to the Federal domestic as- •
sistance programs concerned. The negotiation process enables the'
tribal government representatives to interact directly with Federal I
agency representatives, and to secure the funding necessary from each i
agency to accomplish the goals outlined in the long-range tribal plan. .
Upon completion of the negotiation process, one integrated grant ap-
plication is made, accompanied by each agency's commitment for
funds and endorsement of the grant package. Finally, each Federal'
agency transfers the funds allocated in the grant package to one
agency designated as the lead agency to administer the grant, and one
letter of credit is issued to the tribe.

The flexibility of funds within the grant package allows grant re--
cipients to spend funds in any order as long as allocations under each
grant are spent appropriately at the end of the funding year. This
procedure eliminates the problem of different funding cycles, as welll
as burdensome reporting requirements, as the tribe reports quarterly
to the lead agency on only one grant program.

The Joint Funding Simplification Act enables tribes to have direct
access to Federal agencies and to negotiate one integrated grant, there-
by alleviating many of the problems now confronting tribal govern-
ments in their relationship to the Federal domestic assistance program
delivery system.

In summary, the status of tribal governments within the Federal
domestic assistance delivery system is subject to various legislative

a-iT Joint Funflins: Simplification Act (P.L. 93-510).

8M Joint Funding Simplification Act (P.L. 93-510), purpose.

221

and administrative procedures which are inconsistent with established
Federal policy. The implementation of principles which would re-
solve such inconsistencies should establish a clear definition of tribal
government eligibility for each Federal domestic assistance program
and guarantee the jurisdictional independence of tribal governments
from State governments as permanent political entities within the
Federal domestic assistance program delivery system.

RecoTrmiendations

The Commission recommends that :

1. Congress enact legislation guaranteeing the permanency of trib-
al governments within the Federal domestic assistance program de-
livery system.

2. Congress enact legislation to resolve the inconsistencies of Fed-
eral domestic assistance legislative and administrative procedures as
they define the status of tribal governments within the Federal
domestic assistance program delivery system. The implementation of
principles which would resolve such inconsistencies establish a clear
definition of tribal government eligibility for each Federal domestic
assistance program and guarantee the jurisdictional independence of
tribal governments as permanent political entities with the Federal
domestic assistance program delivery system.

3. Congress authorize the waiver of administrative regulations of
Federal domestic assistance programs which condition eligibility on
population formulas. Allocation of funds, however, should employ
some population criteria such as that utilized by BIA under Public
Law 93-638 to provide adequate funding to tribes with smaller popula-
tion bases.

4. Congress establish Federal policy recognizing the sovereign right
of a tribal government to form its own government. In accordance
with Federal policy, eligibility criteria of Federal domestic assistance
programs not force tribal governments to form consortiums or inter-
tribal affiliations in order to become eligible for Federal domestic
assistance.

5. Conjrress amend the Intergovernmental Cooperation Act of 1968
(40 U.S.C. § 535 and 42 U.S.C. § 1401) to include tribal governments
in the scope of intergovernmental activities and access to Federal pro-
gram information provided for under the Act.

6. Congress amend the Law Enforcement Assistance Act (42 U.S.C.
§ 3711, et seq.) to remove State jurisdiction over tribal governments
in the service delivery system of Law Enforcement Assistance Admin-
istration programs, thereby allowing programs and moneys to flow
directly to the tribal government.

B. rUXDIXG AND PUBLIC LAW 9 3-6 38

Overvieio

The degree to which a tribe can effectively exercise the powers which
have been upheld by the Supreme Court as being inherent to it is
largely dependent on two factors. The first is the ability of the tribe to
finance the basic operations of tribal government. The second is the
ability of the tribe to finance the cost of litigation with State or local

222

governments or individuals who challcnj^e the right of a tribe to exer-
cise its powers. Both factors can serve as serious constraints upon the
governing capacity of a tribal government.

Background — Ahility of Tribes to Finance Operations

Commission interviews conducted over the past year revealed that
very few tribes have the financial resources necessary to support the
basic operations of tribal govemment.^^^ Many tribal governments
consist of a tribal chairman and a tribal council, which will vary in
size from reservation to reservation. Wliere fully financed tribal
governments exist, the position of a tribal administrator or business
manager is one of considerable responsibility, as this person is usually
responsible for overseeing the day-to-day functioning of the tribal gov-
ernment. The position of tribal attorney or legal counsel to a tribe
is one that a majority of tribes interviewed expressed great need f or.^*"
However, relatively few tribes are able to generate revenues sufficient to
salary these fundamental positions of tribal governments capable of
exercising a full range of governmental powers. It is important to un-
derstand the relation of these concepts if the goal of self-determination
is to be achieved.

Strengthening Tribal Governments: AIPRC Objective

In the authorizing legislation which created the American Indian
Polic}^ Review Commission,^'*^ the Commission was charged to "make
a comprehensive investigation and study of Indian Affairs and the
scope of such duty shall include, but shall not be limited to ... a con-
sideration of alternative methods to strengthen tribal governments so
that the tribes might fully represent their members, and at the same
time, guarantee the fundamental rights of individual Indians." ^*- In
compliance with congressionally establislied objectives, the Commis-
sion undertook the study of measures which would work to strengthen
tribal governments, such that the stated goals might be achieved. It is
to this end that the above needs of tribes as identified through surveys
of tribal governments ^*^ are presented, so that Congress may
know that without support to the basic operations of tribal govern-
ments, the goals outlined in section 2 of Public Law 93-580 cannot be
realized.

Inability To Siopport Leadership Positions

In surveys, interviews, and testimony obtained from 121 tribes,^**
the large majority of tribal governments expressed a need for the abil-
ity to finance the positions of a full-time salaried tribal chairman, an
adequately compensated tribal council, a tribal attorney, a tribal ad-

»39 For extensive discussion of findings, see ch. Ill, Tribal Government Task Force report
to the American Indian Policy Review Commission ; July, 1976.

3*0 See ch. Ill, Tribal Government Task Force report to the American Indian Policy Re-
view Commission ; July, 1976 ; p. 72.

S41 P.L. 93-580.

s^ P.L. 93-580, sec. 2.

«« ,<=ree app. XIX, Tribal Government Task Force report to the American Indian Policy
Review Commission ; July, 1976 ; Tribal Government Surveys.

■''" See ch. II, Tribal Government Task Force report to the American Indian Policy Re-
view Commission ; July, 1976 ; p. 67.

223

ministrator, and needed technical assistance. These positions or func-
tions were considered by most tribes to be tlie fundamentals of tribal
government.

Commission analysis revealed that presently there is only one pro-
gram which provides direct support to the strengthening of tribal
goverment. This program is provided for in section 104(a) of the In-
dian Self-Determination and Education Assistance Act, and is titled
the Self-Determination Grants Program,^*^ xllthough the Self-Deter-
mination Grants Program is a clear indicator that Congress recog-
nizes the need to provide support for the strengthening of tribal
governments, Commission study has determined that the administra-
tive regulations subsequently issued under the Act have narrowed the
scope of congressional intent articulated in the Act, thereby thwart-
ing the intent of Congress to provide direct support to tribal
governments.^*^

Obstacles in Grant Regulations — Population Formulas

There are three major difficulties associated with the administrative
regulations of section 104(a) of the Indian Self-Determination and
Education Assistance Act.^^" The first problem stems from the fact
that in determining the service population to be served by a tribal
government, population formulas are used. Assuming that a tribal
government might decide to use its section 104 moneys to revise their
tribal constitution for instance, it is difficult to see how the finances
needed for a tribal constitution revision would be any greater for a
tribe with 100,000 members versus a tribe with 100 members. Commis-
sion field work further reveals that many small tribes experience dif-
ficulty in preventing the diminution of tribal trust land, or exercising
their jurisdiction within the exterior boundaries of their reservation.
Thus, the need for legal counsel is often greater for a small tribe than
it might be for a large tribe which can adequatel}^ generate enough
tribal revenue to support representation by several law firms. Yet, it
is the larger tribes which benefit from population-based funding and
the small tribes which continue to suffer from underdevelopment of
tribal government governing capacities. Because of the "allowable
costs" for tribal government capacity building in the Act are of this
nature, population formula-based funding does not reach those with
the greatest need.

The problem is further compounded by the fact that the popula-
tion formulas used for the administration of section 104, are bound
bv circular A-46 revised, exhibit 1, from tlie Office of Management
and Budget.433

This circular requires that all population formulas be based on 1970
census data population estimates. Indian people have vociferously ob-
jected to the population estimates projected from the 1970 census as
being grossly inaccurate. The problem is only magnified in 1977.

=^ P.L. 93-638, sec. 104(a).
^'^ P.L. 9.3-638, sec. 104(a).

*•" For extensive discussion of findings, see cli. III. Tribal Government Task Force report
to the American Indian Policy Review Commission. July, 1976.

^ Office of Management and Budget circular A-46 rev., ex. 1, June 6, 1975.

224

Criteria for Determining Service Populations

The second problem with the administrative regulations of the In-
dian Self-Detcrmination and Education Assistance Act section 104 (a)
is the criteria for determination of the eligible service population to
be served by tribal members living on trust property. The rationale
given for establishing this criteria is that tribal members who are not
living on trust property will be serviced by some other unit of govern-
ment. This is clearl}^ an erroneous assumption on the part of the Of-
fice of Management and Budget. Many Indians reside off the reserva-
tion but retain their traditional ties. Within the shortage of adequate
housing and the high rate of unemployment existing on most reserva-
tions, Indians must seek housing and employment opportunities else-
where. This fact, however, does not relieve the tribal government of
the responsibility to provide services to those tribal members residing
off the reservation, and indeed, many tribal members return to the
reservation on a frequent basis to avail themselves of those services,
particularly health care.

Many Indian people forced to relocate to large urban centers com-
plain that they do not receive services equal to their non-Indian coun-
terparts, that they are continually discriminated against. Thus, it is
not unusual for an Indian family residing in an urban center to travel
hundreds of miles back to the reservation to provide their children
with adequate health care which they are not able to obtain in the
city. The capacity of the tribal government to provide tribal members
with these services is severely limited by these administrative regula-
tions which penalize the tribal government for its ofi'-reservation serv-
ice population, but do not relieve the tribal government of the respon-
sibility for providing services to those tribal members residing off the
reservation.^*^

Definitions of Allowable Costs for Grants

Finally, the administrative regulations associated with the Self-De-
termination Grants Program specify "allowable costs" under the pro-
gram which serve to limit the allowable activities undertaken to
strengthen the tribal government. Many of the restrictions are con-
tradictory and establish a hierarchy of priorities and "acceptable" gov-
ernmental activities Avhich do not provide meaningful assistance to the
capacity-building efforts of many tribal governments.^^" ]\Ioreover,
recent Office of Management and Budget reports to Congress on fiscal
year 1978 apjDropriations restrict even further the purposes for which
section 104(a) moneys can be expended.

Litigation Costs as a Burden on Tribal Go'vernments

The second major factor which acts to constrain the governing ca-
pacity of a tribal government is the burden of litigation many tribes
face in protecting tribal trust land resources, as well as the tribe's
exercise of its sovereign powers. Because of the conflict of interest dis-

3* For further discussion, see ch. Ill, Tribal Government Task Force report to the Amer-
ican Indian Policy Review Commission ; July, 1976 ; p. 81.

=»" For detailed analysis, see ch. Ill, Tribal Government Task Force report to the Amer-
ican Indian Policy Review Commission ; July, 1976 ; p. 78.

225

cussed in section I of this chapter, the Departments of Interior and
Justice frequently choose not to represent tribes in litigation with other
Bureaus within the Department of Interior or in conflicts with State
governments. The resultant financial burden rests solely with the tribe,
the party to litigation which can usually least afford to bear the costs
of reestablishing the sovereign powers which have been recognized and
upheld so consistently by the Supreme Court.

Powers of a sovereign become meaningless unless they can be exer-
cised, and yet. some tribes have been forced to delay asserting their
sovereign powers purely because they lack the income necessary to
suj^port litigation which might ensue over the exercise of inherent
tribal powers of government.^^^ It is logical to assinne that when the
Supreme Court upholds the power of a tribe to tax,"^- subsequent suits
challenging the power of a tribe to tax should shift the financial
burden for litigation to the party challenging the tribe's right to tax.

Summary

The goal of self-determination would restore to tribal governments
the status which they are legally accorded by the Supreme Court. In
order for tribal governments effectively to assert their legal status
within the Federal system, tribal governments must have the financial
resources necessary to support the basic operations of tribal govern-
ment, so that they may fully exercise their right to tribal self-govern-
ment and achieve the goal of self-determination.

Recommendations

The Com/mission recommends that:

Congressional recognition of the legal status of tribal governments
include the recognition that tribal governments must have the financial
resources necessary to support the basic operations of tribal govern-
ment, so that tribes may effectively exercise their inherent sovereign
powers.

Congress direct the Bureau of Indian Affairs to undertake a needs
assessment of each tribal government to determine tribal capability to
finance the basic operations of tribal government.

Congress authorize the evaluation of the administrative regulations
of self-determination grants program, and require the revision of reg-
ulations where such regulations narrow the scope of congressional
intent articulated in the Indian Self-Determination and Education
Assistance Act.

Congress assure that in both administrative and judicial proceed-
ings, Indians will be assured competent, independent comisel.

35- Tribal Government Task Force report on Uintah-Ouray Reservation, p. 2.
^' Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th cir. 1956) ; Buster T. WHght, 135
F. 947 (Sth Cir. 1905;, appeal dismissed, 20o U.S. 599 (19Utj;.

CHAPTER SIX

FEDERAL ADMINISTRATION OF INDIAN

POLICY

TOO MUCH BUREAUCRACY

Present budgetary practices do not provide an equitable share of Federal
appropriations for Indian services for tlae direct benefit of Indians. Instead, the
ratio of one Federal administrator for every 19 Indians illustrates that the
Government's massive administrative organization absorbs an inordinately large
proportion of Indian appropriations to support Federal employees. Rather than
benefiting the tribes directly, relatively high Federal salaries result in expendi-
tures constituting transfer payments to civil servants.

(227)

CONTENTS

Page

Introduction 231

History of Federal administration of Indian programs 236

Introduction 236

Before the establishment of the Bureau of Indian Affairs 236

Creation of the Bureau of Indian Affairs 238

The structure of administration of Indian affairs 178G-1940 238

Reorganizations of Bureau of Indian Affairs 1830-1972 241

Recent developments in administration of Indian programs 245

The present state of Federal administration of Indian policy 247

Overview 247

Fragmentation of Federal Indian policy 247

Commerce Department 249

Department of Housing and Urban Development 251

Department of Health, Education, and Welfare 251

Department of Agriculture 253

Department of the Interior 254

Department of Lal^or 255

Access to program information 259

Technical assistance 260

Indian preference in contracting 263

Problems in Public Law 93-638 implementation 265

Old problems 265

Bureau of Indian Affairs 265

Some Internal Management Problems 267

Organization 268

Budget 269

Personnel 270

Management information 271

Recommendations based on BIA management study 273

Unsolved problems in the Bureau of Indian Aflfairs 276

A management and public awareness problem of the Bureau 278

Problems with the Bureau of Indian Affairs liudget 279

Continuing problems at "the other" major Indian service 281

A program for the future of Indian administration 284

Consolidation of Indian programs in one department 284

A separate department 286

Interior Department transition 288

BIA transition 289

The creation of separate Indian committees in Congress 293

Recommendations for Federal administration 296

(229)

CHAPTEK VI

FEDERAL ADMINISTRATION OF INDIAN

POLICY

Intkoduction

The Indian desire for a functional "self-determination" policy in-
cluding provisions for its administrative implementation is docu-
mented by testimony of tribes and countless individuals and through
the examination of more than a hundred previous studies. The net
effect of this pattern of ineffectiveness represents a 200-year record of
erratic policy, fluctuating from periods of benevolence to periods of
attempts to totally eliminate tribes, and back to renewed policies of
support and protection.

The first cliapter, "Captives in a Free Society." as well as the chap-
ters on "history", "trust", and "tribal government", provide the back-
ground for the following discussion and an evaluation of the admin-
istration of Indian trust and its related program functions.

Almost every aspect of Indian life falls under the stewardship of
Federal administration. Indian administration affects the trust rela-
tionship, tribal government, jurisdiction, social services, and, gener-
ally, the present eoonomic and social condition of Indians. The
frustrations found in the administration of all these elements, are
rooted in the history of Indian affairs. These factors, thoujrh intended
to be managed in order to advance the Indian cause of self-expression,
actually have become lost in a maze of organization. Federal regula-
tion, and procedure which often turns Indian administration into a
mechanism for economic stagnation, rather than progress.

In spite of a general expectation for the eventual disappearance of
Indians through assimilation, the life style, governmental capacities,
and aspirations of iTidian tribes are expanding. Indian life expectancy
is increasing and the Indian population is growing. Indian tribes,
more coomizant of their powers and their roles as governments, are
now insistent that Indian self-determination become a reality, instead
of lansruishing as a frustrating concept.

Tribal self-government cannot be framed in law alone: nor can it
be legislated and administered except by the will of the people. If
tribes begin to exercise their powers of government, thev <^an l)e
expected to conduct their affairs in a rational, intelligent, and lawful
manner. It is unreasonable, and frustrating to Indians, for anybody
to assume otherwise.

The fi'usti'ation of the rights of tribes to exercise powers of govern-
ment bv the administrative edicts and procedural dictates of delegates
of ^he Se^refarv of th"^ Interior should no lonrrer bp ipmntablo fo Con-
gress or the Indian tribes. A more appropriate vehicle for self-govern-

(231)

232

merit can be achieved by delegating the powers of the Secretarj^ to
tribal governments rather than to civil servants. It is then reasonable
to assume that tribes will be accountable once given the guidelines in
the form of published rules and regulations.

GOVERNMENT BY EXPERTS

The principal rationalization for the domination of Indian tribes is
the presumption that tribes "are not ready," or that the trust relation-
ship constitutes a license to conduct Indian governmental functions
by experts. Expert rulers, however, have been traditionally mistrusted
by many societies. In any event, tribal self-government cannot be
framed in law alone. As Indians begin to practice self-government,
there should be a confidence in their ability to manage their own
affairs.

Government is a matter cbiefly of human purpose and of justice, wliieh
depends upon human purpose. And each of its is a more faithful champion of
his own purpose than any expert. Tlie basic principle of American liberty is
distrust of expert rulers, and recognition in Action's words, that "power corrupts
and that absolute power corrupts absolutely." That is why America, despite all
the lingo of the administrative experts, has insisted upon self-government rather
than 'good government', and has insisted that experts should be servants not
masters. And what we insist upon in the governing of these United States, our
Indian fellow-citizens also like to enjoy in their limited domains : The right to
use experts when their advice is wanted and the right to reject their advice
when it conflicts with the purposes on which we are all our own experts.^

TOO jmuch bureaucracy

Present budgetary practices do not provide an equitable share of
Federal appropriations for Indian services for the direct benefit of
Indians. Instead, the ratio of one Federal administrator for every
19 Indians illustrates that the Government's massive administrative
organizations absorb an inordinately large proportion of Indian ap-
propriations to support Federal employees.^ Rather than benefiting
the tribes directly, relatively high Federal salaries result in expendi-
tures constituting transfer payments to civil servants. The functions
of public works, social services, real estate, law enforcement, govern-
ment services, as well as education, medical, and private business are
administered by a surrogate local government headed by Federal em-
ployees. The massive structure is maintained by congressional appro-
priations which could bettor serve the Indian tribes directly. Tlie $10
million increase in the BIA budget in fiscal year 1977, which falls be-
low the normal 6-percent annual inflationary allowance, was absorbed
by pay raises for Bureau personnel.^ The transfer of funds should be
directly to Indian tribes and the outmoded, paternalistic structure of
the BIA should be modified to reflect the changing priorities of the
Indian people.

Instances abound of the subversion of the rights of tribes at the
convenience of the Government. And the discretionary powers of the

1 Felix Co'ipn. Tlie Losal Consoiencp.

2 AIPRC Task Force No. 3, BIA Management Studj-.
" See cliart on p. 2."').j.

233

executive brancli consistently are used to overrule tribal actions. The
administrative prerogative of failing to act often constitutes a pocket
veto of many tribal actions. It is frustrating to the Indian people to
be singled out as being unable to administer governmental functions
in a rational, intelligent, and la-wful manner when the contrary is, as a
matter of course, presumed for the other governments.

Xor is the BIA alone in taking unfair advantage of Indian people.
Other agencies have compounded the problem by becoming equally
IDaternalistic. complicating the problems further with ineffective co-
ordination while manifesting a disinclination to cooperate with other
agencies serving Indians.

>rEGATI\'E FACTORS IXHIBIT CHAXGE

Two negative factors have consistently been deterrents to desirable
change in the consideration of improving administration of Indian
affairs :

The fear of Indian people that any new legislation or adminis-
trative change might threaten the existence of tribalism and the
Indian peoples' special relationship with the United States.

The propensity of the Indian bureaucracy to resist change
while maintaining and even expanding its size and span of con-
trol over Indian tribes and their members.

Tliroughout history, Indian tribes have found it necessary to repel
injudicious Federal legislation and policy rather than to permit ad-
ministrative manipulations which would abuse their rights. They in-
stinctively distrust all change initially because of the harm that some-
times well-meaning but ill-conceivecl policy changes have caused in
the past. Consequently, in order to establish positive Indian adminis-
tration, it should be recognized that the best solution to the flounder-
ing state of Indian affairs is one which seeks to achieve a permanent
settlement of longstanding issues and is developed in concert v^•ith
Indians.

There has been an extensive use in the last decade of the practice
of agencies "consulting" with Indians before decisions are made. This
generally means that tribes, organizations, and individuals are given
an opportunity to respond before "final actions are taken. The term
"consultation" has been so frequently used that it has escaped notice
that it represents a contradiction to "self-deterinination." and has
been misused by bureaucrats for so long that its true meaning is lost.

Out of government "consultation" has grown the phenomenon of
"appointed advisory boards." These boards have grown in subject
and number to the point that they add to the competition with Indians
for Federal funds. In the consideration of any substantive change in
the delivery of services to Indians, suffice it to say, elected Indian
boards that make decisions are a much better alternative.

Tribal government functions best as an expression of the will of
its people. This is particularly obvious when tribal institutions are
permitted to function and protect their members against experimenta-
tion and frustration by public officials. An atmosphere of mistrust and
anxiety, fostered by previous experience, does not serve either Indians
or the Federal Government.

92-185 — 77 16

234

FUXDAMEKTAL TRINCIPLES NEEDED

The organizational structure, and pliilosophy for the delivery sys-
tem of Indian programs must be revised to provide for efficient man-
agement of Indian atiairs. Because of the unique trust relationship
between the United States and Indian tribes and the incredible com-
plexity of the present system there is a necessity for the creation of
a separate governmental structure for all major Indian programs.

As reflected in previous chapters, an understanding of the perma-
nency of tribal government, the nature of the Federal-Indian trust
relationship described therein, and a cooperative understanding of the
relationship of each to the other is essential before any Federal ad-
ministrative organization can be effectively designed to achieve
agreed-upon goals. Public Law 0;>-580, which established this Com-
mission, cites a congressional finding "(a) the policy implementing
the relationship has shifted and changed with changing administra-
tions and passing years without apparent rational design and witliout
a consistent goal to achieve Indian self- sufficiency.'''' [Emphasis
added.]

The establishment of institutional measures to achieve Indian con-
trol without impairing their special status cannot be resolved without
addressing Indian-felt needs, and then devising a functional system
which will provide a way to satisfy those needs. The AlPIiC attempt-
ed to establish a record of Indian need through testimony and special
submission from tribes directly. Some sense of Indian desires has been
gained, but the only way to actually determine Indian priorities is to
establish a program/planning/budget system which permits- these
priorities to be manifested. The application of a "zero base" budget
process would be very helpful in such a system.

The executive branch has the responsibility to not only account for,
but also to evaluate Indian programs. The present system is an accum-
ulation of Federal programs which has never effectively been reevalu-
ated or assessed for effectiveness or efficiency. The program parameters
are too restrictive. There is excessive overlap and uncoordinated
efforts causing duplication by several agencies. The present system
prevents Indian tribes from efffctively controlling the processes which
determine their status present and future. A planning assessment by
the General Accounting Office in 1975 reported :

We bolieve that coordination of Federal efforts at the reservation level is
needed for all Indian tribes and that evaluations of the type covered in this re-
port should lie made for all tribes.

AVe therefore recommend that the Office of Management and Budget take the
necessary action to insure that :

an approach is developed which will coordinate Federal efforts at the
reservation level.'"

continuous evaluations are conducted of the effect that Federal programs
have on the standard of living at Indian re.'servations inchiding developing
information systems to support such evaluations, and

annual i-eports are submitted to the Congress on programs made in improv-
ing the standard of living of reservation Indians and on any needed changes
in legislation to improve the effectiveness of Federal programs.

•■'= A prpvious GAO roport. "Improving Ferlprally Assisterl Business DpvPlopment on
Inrllan Rpsorvations" (RED-7.5-371. .Tiinp 27. 1975>. mafle a similar recommpiulation \Tith
rpsppct to biisinpss dpvplopmpnt programs. The above recommendations expand the earlier
one to apply to all Federal programs.

235

If early action is not taken, we recommend that tlie Congress enact appropriate
icuislation.*

The summary of findings of the American Indian Policy Review
■Commission will indicate that Government programs are too complex
and lack coordination. This chapter will discuss fundamental ap-
proaches to the problems which heretofore have been beyond the per-
ception of Fedeial administrators.

Any detailed plan will have to be developed l)y the executive branch
workina" in concert with Indian people. The sum total of written testi-
mony, hearings, and an examination of the record reveals that there
were certain common elements in Indian statements. In addition state-
ments were examined by the Commission from Indian position state-
ments and resolutions from the past.'^

An analysis of the entire record shows that there are certain pi'ccepts
contained in all the Indian statements. The discussion of the problems
of Federal Indian administration should begin by describing the neces-
sary fundamentals of a contemporary and elfective Indian administra-
tion:

Develop a program delivery system committed to the deliver}^
of services, grants, and contracts directly to tribes and native
communities. The first priority should be on trust protection and
services as well as for proirrams dedicated to the promotioii of
economic self-sufficiency. These programs should be characterized
by:

Priority provisions for adequate trust protection and
services

Broad program parameters with maximum latitude
Direct grants and contracts

Separation of direct program and Federal agency admin-
istration sujiport costs

Minimal Federal administrative cost
Develop an Indian budget system from a "zero base." consistent
with long-range development plans based on tribal needs and
])riorities. This system should be designed to provide that those
needs effectively constitute a submission, to the executive branch
and the Congress, of a national Indian budget request. Such a
process, although recogiiizing congressionar limitations, would
]?rovide an adecjuate system for determining tribal priorities. The
process slioidd have mininunn interference jn-ior to submission to
Congress— tribes retaining the right to appeal, as per existino-
statutory provisions.^^ '^

Develop a system for the Federal coordination of special Indian
and domestic assistance programs to be established at the tribal
or community level — such coordination to be performed by one
agency at the direction of the tribal officials. This system should
be miplemented at the direction of the executive branch and should
be periodically monitored to assure interagency compliance.

^(VMinnrollpi- nenor.-il of tlie T^nited States. General Accniintiiiff Office Rerjort tn the

x>Z^^H'-'"^^ Conjrreh^s of American Indians, report prepared for the \i7iericnn Tndi-m
PrtritierTo'ooi"'." •"^^''""- •'""^ ^^"'' "'^" Exanunation Sf HistoHeal IncSn'poUciefaml
»25r.S.C. sec. 476.

236

Develop a system by which the executive branch establishes
provisions for the monitoring, evaluation and audit of programs
so that they can be utilized more efficiently. Such a system should
also have provisions for a published accounting, separatmg ad-
ministration and program, and reporting to Congress, the Indian
people, and to the appropriate levels of the executive branch. This
should be done on an annual basis.

Develop a system of technical assistance which provides support
directly to tribes, primarily through grants, which would enable
them to hire from the open market. In the case of Federal em-
ployees in the Indian service, future recruitment should be limited
to highly qualified and experienced technicians rather than gen-
eral administrators.
A resolution of the fundamental issues left to be resolved by the
Indian people and the Federal Government requires an evaluation of"
needs compared to how the efforts to address these needs are admin-
istered. x\n appropriate and effective working relationship can be
achieved if tribal control can be fostered. Countless Indian statements
over the past 77 years have given us the recipe for success.

History of Federal Administration of Indian Programs

introduction

Today, most Americans think that there is one agency, the Bureau
of Indian Affairs, which administers programs directed to Indian
people. Although there are a number of agencies which now serve
Indian people, the public perception is partially correct. The Bureau
of Indian Affairs administers the majority of the Federal Govern-
ment's Indian programs, and throughout history, it has held almost
singular control in this area. Since one agency has borne the major
responsibility for implementing Indian policy, the orientation, struc-
ture, and organizational flexibility of that agency has been of primary
importance when new policy guidelines have been determined in
Indian affairs. The history of Federal administration represents a
struggle that has gone on in bureaucratic offices largely without the
public's attention, and long after congressional debates. This often-
ignored history shows that obstacles to Federal Indian policy are not
always legal, or theoretical, or political, but quite often, administrative.

BEFORE THE ESTABLISHMENT OF THE BUREAU OF
INDIAN AFFAIRS 1775-1832

The need for formal and legitimate procedures to carry out the
Federal Government's policy toward Indians has existed as long as
the Federal Government itself has existed; that is, from the time the
Federal Government was organized on a continent which was popu-
lated mostly by Indian people. As early as 1775, representatives of the
American colonics in the Continental Congress created three depart-
ments of Indian affairs and appointed commissioners to make and

237

maintain treaties of peace and friendship with the Indians^ These
officers were to represent the colonies' interest in their dealings with
Indians, but were not to interfere with the mternal affairs of Indian
nations. Such interference would have had disastrous consequences
for the colonists. As a result this small bureaucratic development
occurred without any suggestion that the American government might
ever try to assert its will in Indian communities. This fact was noted
by the first scholar who studied the Indian policy of the Continental
Congress, at a time when Indian nations were not so powerful as they
had been in 1775. He observed that at the time Indian policj^ was first
envisioned, "it was not contemplated * * * that Congress should have
"any legislative power over the Indians." ^ It was clear in these early
stages, however, that the national Congress had the exclusive govern-
mental authority to regulate trade and make treaties with Indian
tribes.

After the Declaration of Independence, the Continental Congress
found it difficult to administer Indian policy and wage the American
Eevolution at the same time. Since the military aid of Indian nations,
^particularly in New York State, was crucial to the war effort, Indian
affairs was given top priority, but the administration of Indian affairs
was largely turned over to the Board of War. "When Congress directed
the Commissioners for the Northern Department on May 17, 1779 to
consult with General "Washington on treaty matters and to follow his
direction.^ it established the precedent of delegating its authority over
Indian aff'airs.

In 1776. Congress institutionalized this precedent by establishing
two Indian departments, one in the North and one in the South, both
of which reported to the Secretary of "War. The two superintendents
of these departments were given the authority to issue licenses to citi-
zens who desired to trade with or live among Indians. An administra-
tive system was thus established for a peacetime relationship with
Indian people, at a time when Indian relations were relatively stable
and no dramatic new policies were being considered.

Even greater delegation of congressional authority accompanied the
drafting of the Constitution. "When Congress created the "War Depart-
ment as a permanent fixture in the executive branch, it gave the De-
partment wide responsibility for matters "relative to Indian Affairs".^"
The "War Department continued to administer Indian policies for 60
years. Subsequent legislation continued to give the Department consid-
erable latitude in administration. By 1832. when the Bureau of Indian
Affairs was created, the Commissioner of Indian Affairs was described
as having "the direction and management of all Indian afl'airs and of
all matters arising out of Indian relations", under the general author-
ity, of course, of die Secretary of "War. That Congress had delegated
its power and established a firm base of authority for executive action
in Indian affairs was clear within the first 50 years of Federal-Inclian
relations.

^ Journal of the Continental Congress, vol. 2, p. 175.

5 Joseph Blunt, mstorical Sketch — The Jurisdiction Over Indian Tribes, p. 93.

» Journal of the Continental Consress. vol. 14, p. GOO.

"First Congress, Session, ch. VII (1 Stat. L. 49), sec. 1.

238

CREATIOX OF THE BUREAU OF INDIAX AFFAIRS ^*

The Bureau of Indian Affairs was established within the War De-
partment on March 11, 1824, by order of Secretary of War John C.
Calhoun. From 1789 until 1824 the administration of Indian affairs,
except for the Government-operated factory system of trade with the
Indians, was under the direct supervision of the Secretary of "War.
The factory system — from 1806 until it was abolished in 1822 — was
administered by a Superintendent of Indian Trade responsible to the
Secretary of War. The Superintendent's powers and responsibilities
had expanded over the years as the Secretary delegated increasing
authority to him. Thomas L. McKenney, the last Superintendent of
Indian Trade, became the first head of the Bureau of Indian Affairs.

The Bureau was operated informally within the War Department
from 1824 until 1832, when an act of Congress ^- authorized the ap-
pointment of a Commissioner of Indian Affiairs, who under the direc-
tion of the Secretary of War, was to direct and manage all matters
arising from relations with the Indians. In 1840, by an act of Con-
gress.^^ the Bureau was transferred from the War Department to the
new Department of the Interior, where it has since remained. Al-
though Secretary Calhoun used the term "Bureau" in his order, the
name "Office of Indian Affairs'' soon came into common usage. The
name "Bureau of Indian Affiairs" was not formally adopted until
1947.

THE STRUCTURE OF THE ADMINISTRATION OF INDIAN AFFAIRS 17S6-19 40

For many years the only positions, in the Wasliington office of the
Bureau that were specifically authorized by statute were those of
Commissioner of Indian Affairs and Chief Clerk. Until 1886 the Chief
Clerk was the second ranking official in the Bureau, and he acted for
the Commissioner in his absence. In 1886, Congress established the
position of Assistant Commissioner to replace that of the Chief Clerk.
The position of Chief Clerk was reestablished in 1906 and that of
Assistant Commissioner was retnined. From 1910 to 1915. the Chief
Clerk was designated as the Second Assistant Commissioner. The
position of Chief Clerk was abolished in 1934. Since World War II
there have been created the additional positions of Deputy Commis-
sioner and Associate Commissioner, ranking above Assistant
Commissioners.

There were no formal subdivisions of tlip central office of the Bureau
until 1846, when four divisions were established by order of the Secre-
tary of AVnr. The namos of thpse divisionp -(-aried : bnt they were most
commonly known as Land Division. Civilization Division, Finance
Divisinii. and Filp« and Records Division.

During the 19th century there were two principal types of field
jurisdictions: superintendencies and agencies. Superintendents had

51 Thf> mntprial for this section, and lar^e spsmonts of siilispqiipnt spctlonF: of flils nrtni'n-
istratn-p history r\rp rpprin+pr' frop"' "f^'^war'T F. TT'll. ProHniinrn-v Tnvpntorv NnTn''>pr ifio.
Rppords of tlip Bureau of Tnclinn Affairs, the National Avoliivps. Wasliinirton 10f>5. The
Commission wishes to express its gratitude for Mr. Hill's contribution to tliis seldom-
stndipfl area of Indian Affairs.

« 4 f^tat. r>cA.

"9 Stat. .395.

239

general responsibility for Indian affairs in a geographical area, usually
a territory but sometimes a larger area. Their duties included the
supervision of relations among the A-arions Indian tribes in their juris-
diction and between the tribes and citizens of the United States or
other persons, and the supervision of the conduct and accounts of
agents responsible to them. Agents were immediatel}' responsible for
the affairs of one or more tribes. Until the ISTO's most agents were
responsible to a superintendent, but some of them reported directly to
the Bureau of Indian Affairs. Agents attempted to preserve or restore
peace and often tried to induce Indians to cede their lands and to move
to areas less threatened by white encroachment. They also distributed
money and goods as required by treaties and carried out other provi-
sions of treaties with the Indians. Gradually, as the Indians were con-
fined on reservations, the agents became more concerned with educat-
ing and civilizing them.

The superintendency system is usually considered to have started
with an "Ordinance for the Regulation of Indian Affairs", enacted
by the Continental Congress on August 7. 1786. This ordinance estab-
lished a northern Indian department and a southern Indian depart-
ment, which were divided by the Ohio Uii-er. A Superintendent of
Indian Affairs was authorized for each of these departments. These
positions were continued when the nov; Government was organized
under the Constitution. In 1789, Congress appropriated the necessary
funds for the Govei-nor of a territory to serve ex officio as Superin-
tendent of Indian Affairs, particularly i]i newly organized territories.
The superintendencies located in an unorganized territory or in the
States or where the duties of the superintendent were particularly
arduous, a full-time snperintendent was appointed.

Agencies were established at first in a somewhat casual manner. In
179-2 the President appointed four special agents, who were charged
with special diplomatic missions. In 179.^, an act of Congress^* au-
thorized the President to appoint temporary agents to resirle among the
Indians. Eventually, the word "temporary" was dropped from their
title, and agents became permanent Indian agents assigned to particu-
lar tribes or areas. By 1818 there were 15 agents and 10 assistants or
subagents. That year Congress passed a law^^ providing that all
agents be appointed by the President with the advice and consent of
the Senate.

By the time the Bureau of Indian Affairs was established in 1824
the svstem of superiTitendencif^s and agencies was well orQ:anized. An
act of June 30, 18.34." spef^ifi.cally authorized certain superintendencies
and agencies. The President could discontinue or transfer agencies
but was given no authority to establish additional ones. An act of
Febmary 27. 1851.^"^ fixed the number of superintendencies and agen-
cies, taking into account the greatly expanded area of conntry after
the Mexican- American War and the settlement of the Oregon boundary
dispute with Great Britain.

The restrif'tions on the number of agencies were, in a sense, evaded
bv the establishment of subagencies, which did not require congres-

1*1 Stat. S31.
5=3 Stat. 42S.
" 4 Stat. 7?..5.
1- 9 Stat. 574.

240

sional approval. After 1834 most subagents became in effect regular
agents, although they received less salary and were usually assigned
to less important agencies. Additional agencies were also established
by creating "special agencies". A special agent was often appointed to
carry out some special assignment, but frequently si3ecial agents were
simply regular agents appointed in addition to the authorized agents.
Superintendents, particularly those in newly organized areas, often
appointed special agents and acting agents of various kinds — some-
times without authority to do so.

The Bureau employed other kinds of agents. Purchasing and dis-
bursing agents were concerned, respectively, with obtaining goods and
with distributing either goods or money. Emigration agents assisted
in tlie removal of the Indians from one area to another. Enrolling
agents were appointed to prepare rolls for annuity disbursements, land
allotments, or other purposes. There were also treaty commissioners,
inspectors (beginning in 1873), and special agents assigned to some
specific mission such as the investigation of the conduct of a regular
field employee or the settlement of claims.

Superintendents and agents in newly established jurisdictions were
allowed a wide latitude of action. The assignment of agents was often
left to the discretion of the superintendent. Agents were permitted to
select sites for agency headquarters, subject to approval by superiors.
Some agents had no permanent headquarters and spent much of their
time traveling. Gradually, as the Indians were settled on reserves, the
agencies became more fixed in location; better communications were
established ; and the superintendents and the agents were replaced by
Army officers, but in the following year most of these officers in turn
were relieved of their duties and civilians were again appointed. It
was a common practice, however, to detail Army men to duty with the
Indian Service in periods of unusual disturbances or when civilian
agents were unavailable. During the 1870's the Bureau allowed various
religious denominations to recommend certain persons to be agents.

The system of giving supervision over a number of agencies to a
superintendent was discontinued during the 1870"s, and by 1878 the
last superintendency had been abolished. Thereafter all agents re-
ported directly to the Bureau of Indian Affairs. Inspectors and spe-
cial agents, however, were sometimes given some supervisory authority
over agents.

In 1893, an act of Congress ^^ authorized the Commissioner of Indian
Affairs, with the approval of the Secretary of the Interior, to assign
the duties of Indian agent to a school superintendent. This action was
needed to eliminate political patronage (school superintendents were
under civil service regulations, but Indian agents were still ap-
i:)ointed politically) ; moreover, the Indians, under the allotment
system, were being divided into smaller, more scattered groups. All
agents were gradually replaced by superintendents, who were not
necessarily in charge of any school. The Bureau revived the term
"agency" for field units, but the officers in charge continued
to be called "superintendents".

In 1879 the first nonreservation Indian boarding school was estab-
lished at Carlisle, Pa., and other schools were established elsewhere.

18 27 Stat. 614.

241

The position of Superintendent of Indian Schools was established in
1883. For some years the Superintendent performed duties similar
to those of an inspector, and he had little administrative authority.
In time, however, he directed the Indian school system ; and, in 1910,
his title was changed to Chief Supervisor of Education.

Other supervisory positions were established for specialized activi-
ties such as irrigation, forestry, Indian employment, law enforcement,
health, and construction. The incumbents of these positions were re-
garded as field officials, even though some of them maintained their
headquarters in Washington. They developed their own elal^orate
organizations, which in some cases included district systems. Since-
these services operated outside the regular agency system and apart
from the administrative divisions in Washing-ton, problems of con-
flicting authority arose.

In 1925 the position of General Superintendent was created. The
former Chief Supervisor of Education was appointed to the new posi-
tion and he was placed in charge of field activities relating to educa-
tion, agriculture, and industry.

In 1931 there was an even more sweeping change. Directors were
appointed for specialized activities such as education, health, irriga-
tion, and forestry. These directors were in charge of both field opera-
tions and those of the Washington office. The Director of Irrigation,
for example, was in general charge of both the Irrigation Service in
the field and the Irrigation Division in Washington. By 1937 the
Bureau had establishecl uniform districts for the various field services
in order to eliminate the confusion that resulted from each service's
setting up its own district system. After World War II a system of
area offices was established whereby area directors were responsible
for administering all Indian activities within their areas, including
the supervision of agencies and other administrative units. Special-
ists were expected to provide technical supervision but were relieved
of executive responsibility.

REORGANIZATIONS OF THE BUREAU OF INDIAN AFFAIRS 1S30-197 2

There were relatively few changes in the organization of the Bureau
until 1907. The most important one was the 1819 transfer of the
Bureau from the War Department to the Department of Interior
where it remains to tlie present day. Tliis move was taken in order
to change the administration of Indian affairs from military to civilian
control, and did not affect the internal structure of the Department.
All of the powers which Congress had delegated to the Secretary of
War, relating to Indian Affairs, were summarily transferred to the
Secretary of the Interior. Actual administration was also minimally
affected by the transfer ; military officers continued to be employed as
Indian agents. Furthermore, the transfer was less than secure; be-
cause of conflict between tribes and frontier settlements. Congress
continually debated transferring the Indian bureau back to the War
Department.

From 1873 to 1881 there was a Medical and Educational Division,
which assumed some of the duties of the Civilization Division. The
Accounts Division was established in 1876 : most of its functions had

242

formerly been assigned to the Finance Division. In 1884 the Civiliza-
tion Division became the Education Division. In 1885 the Depreda-
tion Division was established to process depredation claims; but, in
1893, it was consolidated with the Land Division. A Miscellaneous
Division was established in 1889 to take over certain duties formerly
assigned to the Office of the Assistant Commissioner, particularly
the issuance of traders' licenses.

Between 1907 and 1915 the Bureau's central office was repeatedly
reorganized. The Land and Education Divisions survived; and the
Education Division, in particular, was given expanded duties. The
Finance Division was replaced by the Purchase Division. In 1909
the Purchase Division was consolidated with the Education Division,
but in 1914 it was reestablished as a separate division. The name of
the Accounts Division was changed to Finance Division. The Mis-
cellaneous Division was abolished. The Files and Eecords Division
was replaced by the Mail and Files Section, which became a part of
the Office of the Chief Clerk. The office of the Law Clerk, separated
from the Land Division, developed into the Law Division (later known
as the Probate Division). An inspection service was organized and
it became eventually the Inspection Division. A short-lived Division
of Field Work (or Cooperation Division of Field Work, or Coopera-
tion Division) was responsible for irrigation and forestry activities
formerly assigned to the Land Division. The Division of Field Work
was abolislied about the end of 1908, however; and responsibilities
for irrigation and forestry projects were shunted about until 1912.
Thereafter there were separate Forestry and Irrigation Sections,
which seem to have been associated with the field service rather than
the central office. A short-lived Indian Territory Division, in charge
of the affairs of the Five Civilized Tribes, was consolidated with the
Land Division. For several years there was also a Methods Division,
which was responsible for developing office procedures and
organization.

Another aspect of the reorganizations during the 1907-15 period
was the subdivision of the divisions into sections.

There were no major changes in the organization of the central
office from 1915 through 1923. In 1924 the Irrigation and Forestry
Sections became full divisions and the Health Division (called the
Medical Division until 1931) was established, assuming certain duties
formerly assigned to the Education Division.

In 1926 the Education Division was renamed the Administrative
Division. In 1930, however, the Schools Section of the Administra-
tion Division was made a separate Education Division; and in the
same year the Industries Section of the Administrative Division was
replaced by the Agricultural Extension and Industry Division (later
the Division of Extension and Industry). In 1931 the Alaska Divi-
sion of the Office of Education, in charge of educational and medical
work for Alaskan Natives, was transferred to the l^ureau of Indian
Affairs and its activities were gradually merged into those of the
Education and Health Divisions.

There was a major reorganization of the Bureau in 1931. Two po-
sitions of Assistant to the Commissioner and a position of Chief
Finance Officer (later Finance Officer) were established. Each of these

243

new officials "was driven supervisory control over several divisions. The
Assistant to the Commissioner for Human Relations Mas in charge
of the divisions of Education, Health, and Agricultural Extension
as well as the Employees Section (formerly in the Administrative
Division) and a new Miscellaneous Activities Section. Under this As-
sistant was a Junior Assistant to tlie Commissioner in charge of mat-
ters relating to general field supervision, whose office in effect replaced
the Inspection Division. The Assistant to the Commissioner for Indian
Property supervised the Land, Forestry, and Irrigation Divisions.
The Chief Finance Officer was responsible for all financial matters;
and he was in charge of the Fiscal Division (formerly the Finance
Division), the Purchase Division; and the Construction Section (for-
merly a part of the Administrative Division). The Probate Division
was placed under the supervision of the Chief Counsel, who was in
charge of all legal work of the l^ureau. The Chief Clerk remained
in immediate charge of the "Washington Office and supervised the Mail
and Files Section, the Statistics Section, and the library. The Ad-
ministrative Division was abolished. In 1932 the Purchase Division
Avas abolished and all purchasing activities were transferred to the
Office of the Secretary of the Interior.

For the next several years the organization of the Washington Of-
fice was in a very confused state. In 1934, the position of the Chief
Clerk was abolished and his duties weie assigned to an assistant to
the Finance Officer, whose office developed into the Administration
Branch of the Bureau. Xew positions of Assistant to the Commissioner
were established, but the specific responsibilities of the incumbents
were changed f rec{uently. Tlie Statistics and Construction became divi-
sions. The Em))loyees Section, responsible for field personnel mat-
ters, was abolished in 1039, M'hen the personnel work of the Bureau
was centralized in a Personnel Division.

The Meriam Report (1928) found many deficiencies in the admin-
istration of Indian affairs. Among these were: (1) "lack of ade-
quate, well-trnined personnel": (2) an inadequate system of public
healtli administration: (3) "grossly inadequate" provisions for the
care of Indian children in government boarding schools: (4) lack of
evidence of economic planning; (5) "confusion" over legal and ju-
risdictional matters: and (6) a failure to develop cooperative relation-
shi]is with otlier organizations which could be of assistance.

After tlie publication of the report, a change in policy was insti-
tuted. Indian administration improved, and the Indian Reorganiza-
tion Act was passed by Congress in 1934. This act was an attempt to
respond to the wishes of the Indian people to remain Indian, to main-
tain their tribal identity', and to control their own lives.

Xew divisions were established for expediting the emergency pro-
grains of the 1930's. These included tlie Civilian Consein^ation Corps —
Indian Division (at first called Indian Emergency Conservation
"Work) : the Roads Division: and the Rehabilitation Division, which
was in charge of Y\"PA projects. The Construction Division handled
WPA projects other than those connected with irrigation and road
work. The Indian Organization Division was estalilishcd to super-
vise the formation of tribal governments under the provisions of the
Indian Reorcanization Act.

244

1934 also saw a highly significant but very subtle approach to re-
organization of the Bureau. The Indian Reorganization Act con-
tained a provision which sought to place Indian people in positions
of authority so tliat they could administer Federal programs to In-
dian people. Senator Wheeler, who authorized the legislation, strongly-
defended Indian employment preference standards by agency, "It
[the Indian Service] is an entirely different service from anything
else in the United States, because these Indians own this property.
It belongs to them." ^^ He concluded that civil service had worked
"very poorly" in administering Indian ]:)rograms.-° Unfortunately,
the Bureau has not carried out the provisions of the Act strongly
enough to effect an overhaul of the Bureau's employment procedures.-^

In 1940 the Community Services Branch, the Resources Branch, the
Administration Branch, and other branches were established. The
Finance Officer redesignated Chief Administrative Officer, was put
in charge of the Administration Branch. Each of these branches was
made up of a number of divisions. In 1949 the terminology was re-
versed — the branches became divisions and the divisions became
branches. An Assistant Commissioner was put in charge of the Divi-
sion of Community Services, and another Assistant Commissioner
was put in charge of the Division of Resources. More recently there
have been created a position of Assistant Commissioner for the Divi-
sion of Administration and a position of Assistant Commissioner for
the Division of Economic Development. The Division of Resources
has been abolished.

Since 1950, there have been various changes in organizational struc-
ture and some significant attempts to reorganize the Bureau. The most
important structural changes occurred during the Nixon Adminis-
tration. In 1969 the Commissioner of Indian Aff'airs, Louis Bruce,
reported to the Assistant Secretary for Land Management, Harrison
Loesch, who had competing responsibilities for the Bureau of Land
Management, Outdoor Recreation, and Territorial Affairs as well as
tlie Bureau of Indian Affairs. Bruce established two Associate Com-
missioners and five directors for Administration, Construction and
Engineering, Finances, Education, Community Services, and Eco-
nomic Development within the Bureau of Indian Affairs. As these
directors began to pursue innovative programs, old-line bureaucrats
felt the need for an intermediate voice in the structure, and a Deputy
Commissioner was located between the Commissioner and his five
Directors. This structure was overhauled after the Indian takeover
of the Bureau of Indian Affairs Building in November 1972. Many
personnel changes accompanied subsequent restructuring of the Bu-
reau, and, for an interim period, no Commissioner of Indian Affairs
was named. An Acting Commissioner headed the Bureau and reported
to the Assistant Secretary for Management. In 1973, when Morris
Thompson was appointed Commissioner of Indian Affairs, the Bu-
reau was taken out from under the control of an Assistant Secretary,
and the Commissioner was made directly responsible to the Secretary
of the Interior.

1" Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d
Cone-., 2d sess., pp. 256-257 (1934).
20 Ibid.
" See also the Final Report of Task Force 9, part V, ch. II, pp. 163-213.

245

1?ECEXT DEVEL0P3HEXTS IX THE ADMINISTRATIOX OF USTDIAN PROGRAMS

Dispersion of Federal Indian Programs Among Various Agencies ^^

It was not until 1929 that consideration was given to the possibility
that agencies other than the Bureau of Indian Affairs should become
involved in tlie provision of services and assistance to Indians. Tliis
view was first offered by Commissioner Jolin Collier as a part of the
new policies which were to emerge from the Indian Reorganization
Act of June, 1934.-^ Commissioner John Collier defined one of his
objectives under the new policy as follows: To abandon the tradition
of Indian Office monopoly over the Indian Service, by drawing all
available Federal and State agencies into the Indian Service.-^

The prime motivation for this policy was due to Collier's conviction
tliat the Indian Service should "shift from that of dispatch manage-
ment to that of cooperative advice and teclmical assistance." -'" While
many agencies of the Federal and State governments had begun
modest efforts to serve the social and health needs of Indians after
publication of the Meriam Eeport in 1928, there remained consider-
able reluctance among agency officials to provide services. This state
of affairs was largely due to uncertainty about the extent of BIA
responsibilities and the tendency of the Bureau to guard its turf
and assert its control over Indian Affairs.

The Bureau of Indian Aff'airs, it was thought, was guilty of provid-
ing insufficient and substandard services. The remedy Collier sought
was a movement "toward the sharing of responsibilities with other
agencies" -^ in a cooperative intergovernmental effort to solve the eco-
nomic, social and health problems so star]^:ly revealed in the Meriam
Report. As an example of how this system of cooperation could work,
Collier asserted :

Within the federal system, the outstanding unifications have been those be-
tween the Indian Service and the CCC (Indian Emergency Conservation Worli),
and the Indian Service and the Department of Agriculture (Soil Conservation
Service). Continued or extended cooperation with the United States Public
Health Service and with the Bureau of Animal Industry has gone forward. An
entirely new collaboration with the Bureau of American Ethnology (Smithsonian
Institiite) has been achieved. Important help to Indians has been given by the
Federal Emergency Relief Administration, the Agricultural Adjustment Admin-
istration, and "the Land Program through the Resettlement Administration.

Not merely have these many cooperative and sharing arrangements increased
the services given to Indians, they have, in addition, reacted in a stimulating
and challenging fashion upon the Indian OflBce. Not a sequestration of Indians
within the one federal bureau, but the largest use of all the agencies' helpfulness
is the guiding principle in present Indian Affairs."

The motivation for State cooperation was a result of Congress' pas-
sage of the Johnson-O'Malley Act -^ which provided that the Secre-
tary of the Interior could contract with State and local agencies for
tlie purpose of providing precollege education to Indian youngsters.

=2 This section was taken from Task Force Tliree's Final Report, p. 39-41.
■« Act of June IS, 1934. 4S Stat. 987.

=* Records of the development of Collier's IRA Policy, RG 75, 56-A-58S. 39.^, 50660-15-
120 Federal Archives Records Service. Fort Worth, Tex. Indian Service Policies, galley 1.
25 Ibid.
-"Ibid.
-'■ Ibid.
=8 48 Stat. 596 ; Apr. 16, 1934.

246

States in general were not willing to use State revenues to supply serv-
ices and assistance to Indians due to the nontaxability of Indian
lands — the principal source of social and educational revenues gen-
erated by States.

Through the 1950's and 1960's, the pace increased to place Indian
support programs into other Federal agencies. Indian health was
moved out of the Bureau of Indian At^'airs in 1955 to the Pul)lic
Healtli Service to facilitate more "expert"' provision of services. The
overriding policy was to "get the government out of the Indian busi-
ness" — a policy which was to be achieved by moving tire responsibili-
ties for Indian services into other agencies. State governments and
out of the Bureau of Indian Aif airs. This policy was reevaluated with
the advent of Indian self-determination emphasis fostered by "War
on Poverty" legislation and policies begun in the early 1960's.

Indian tribes began to see the advantages of multiple agency Federal
assistance programs as the flow of direct funding and assistance began
to boost tribal economies in ways the Bureau of Indian Affairs never
could. The Great Society programs of the Johnson administration be-
came the first major breakthrough for tribal governments.^^

* * * although Indian tribes were not specifically mentioned in the delivery
system provided in the Economic Opportunity Act of 1964, a crucial policy de-
cision was made by OEO to make Community Action Program grants to Indian
tribes, frustrating an attempt by the BIA to serve as an Administrative conduit
for these funds.^"

The infusion of OEO funds into ti i])al coinmunities brouglit about
vigorous efforts of tribal governments to serve their people by develop-
ing economic and social programs that they administered. Though the
quantity of funds was not large, they nevertheless provided Indian
tribes with the first real opportunity to plan their own future.

At the close of the decade of the 1960's and the beginning of the
1970's the Nixon administration began efforts to establish domestic
assistance programs by expanding the Bureau of Budget into the
Office of Management and Budget and through an effort to standard-
ize Federal service regions, organize Federal regional councils, decen-
tralize Federal granting authority to the regions and establish an
integrated grant system for comprehensive development.^^

For Indians, these administrative changes were couched as methods
for insuring tribal self-determination. But inconsistencies in the treat-
ment of tribal governments, poor communications, and arbitrary pro-
gram requirements combined to create distrust of the new system.
The policy of self-determination began to be seen as yet another form
of assimilation and termination.

As these diverse programs for Indian people Avere placed in new
agencies, it initially meant increased concern for and attention to
Indian problems. In some ways, however, the newcomers to Indian
Affairs have not been able to deal with Indian programs as effectively
as the Bureau, with its century-and-a-half of accumulated expertise,
has in the past. This trend now appears to have created a dift'usion of
attention in Indian affairs rather than an increased or more widely

29 Study of Statutory Barriers to Tribal Participation in Federal Domestic Assistance
Programs, University of New Mexico. AILC 76.
3» Ibid., p. 1.
31 Ibid., D. 2.

247

establislied attention to Indian affairs. This situation, which has do-
.veloped from the histoiy of past administrative changes in Federal
administration of Indian programs, is today's problem. This current
status of Federal administration is the subject of subsequent sections
of this chapter.

The Present State of Feder^vl .VumixistTvAtion" of Indian Policy

0\TER\^EW

The trust responsibilit}' of the United States to Indian people today
includes the permanent obligation to protrct and enhance Indian
lands, resources, and tribal self-government. The De{)artment of the
Interior is delegated as the prime agent for insuring that the necessary
services are provided. The trust, however, is not merely a matter of
concern for the Bureau, but extends to the Federal Government as a
whole.

The entitlement to Federal services is additionall}', twofold for
Indian people. That is, as citizens of the United States, Indian people
are entitled to programs and services provided by the Federal Gov-
ernment to benefit its citizenry on a level comparable to that of any
United States citizen. Second, on the basis of treaties, statutes, and
the course of dealings between the Federal (rovernment and Indian
tribes, Indian people are provided Federal programs and services as
part of the legal obligation of the United States in executing its trust
responsibility to Indian people. However, Commission research con-
ducted over the past year through public hearings, surveys and inter-
views with tribal members and Federal officials has revealed that in
spite of the dual entitlement Indian people Jiave to Federal services,
they are not actually receiving services available to other citizens of
the United States.

FRAGilENTATlON OF FEDERAL INDIAN POLICY

At least 9 cabinet-level departments and 10 individual agencies have
programs affecting Indian peojile. Obligations for these programs
totaled about $1.1 billion in 1974. Programs designed exclusively for
American Indians amounted to about $950 million and programs with
Indian set-aside funds amounted to $170 million. Furthermore, 5
temporary committees are engaged in studies which will have a direct
impact on Indian interests.

The major departments with multiple programs relating to Indians
are: Interior; Health, Education and Welfare; Agriculture; Housing
and Urban Development ; and Connnerce. The Departments of Labo?,
Transportation, Treasury, State, and Defense also have major pro-
grams of importance to Indians. Along with these, the Department of
Justice handles most of the legal problems affecting Indian rights.
^ The independent agencies with programs affecting Indians include :
Federal Energy Administration, Environmental Protection Adminis-
tration, the Federal Power Commission, the Commission on Civil
Rights, the Small Business Administration, the Occupational Safety
and Health Review Commission, the Equal Employment Opportunity
Commission, and the Marine Mammal Commission.

248

Existinn; alono-side of these are numerous temporary commissions
whose studies and functions will imdoiibtedly affect Indian interests.
Thev include such org-anizations as the AIEPC, the Commission on
Water Quality, Commission on National Policy on Gambling, and the
Community Service Commission.

The purJDOse and goals of many Native American programs are not
adequately defined. This often leads to overlap and duplication of
programs' within the different agencies. Despite this overlap, many
agencies provide such limited programs that even in combination, they
fail to adequately meet the needs of tribes or individual Indians.

One example of this can be seen in the area of Indian housing con-
struction. HUD is responsible for constructing housing units for
Indian people. Program regulations state that HUD will construct
the buildings if HEW agrees to provide plumbing and sewage facili-
ties. Still another agency, BIA, is responsible for the construction of
the roads leading to the home. As a result, HUD cannot begin con-
struction until it has a commitment from HEW to put in the water
facilities. HEW cannot agree to put in water until it has the exact
location of the house. HUD, in turn, cannot provide the exact location
of the home until the BIA stipulates where it will put in the roads
and driveways.

These problems are compounded by the fact that each of the agencies
involved receives separate funding from Congress. As a result, it is
possible for HUD to have money available to construct homes but be
prevented from doing so because HEW does not have the funds neces-
sary to put in water systems or because BIA does not have the money
to build roads to reach the homes.

This overlap in Indian administration also extends to State and
local governments. Indian people may qualify for programs in three
different ways : as tribal citizens, State citizens, and Federal citizens.
While this sounds like an ideal situation, the result is quite often the
opposite. For example, a State social service agency and HEW may
both offer welfare programs to an Indian individual. However, the
State may refuse to allow tribal participation in this program because
it believes that Indians living on a reservation are a Federal responsi-
bility. Federal agencies, on the other hand, may fail to provide a pro-
gram of this type because they feel that such programs are already
covered at the State level. As a result, Indian people find themselves
excluded from State programs with no recourse through Federal
channels.

This bureaucratic structure also creates other negative situations.
Because of the layers of Federal, State and local employees charged
with administering Indian programs, decisionmaking powers are often
denied Indian people. One result of this bureaucratic entanglement
is that Indian people do not know which agency to approach Avhen
they need assistance.

Because of the complexity of many Indian programs, there is a
serious lack of coordination both within and between Federal agencies.
As a result, Indian people often fail to realize many of the benefits
intended for them.

The confusion surrounding application procedures for the various
diverse Indian programs scattered throughout the bureaucracy was

249

a topic of constant criticism in a number of task force hearings. In a
hearing held by Task Force Three, for example, Eobert Trepp
commented :

* * * programs directed toward American Indians operate within one of the
several departments at the cabinet level * * *. This creates so much confusion
that it is becoming impossible for the tribes to operate within the executive
framework. It is not that the tribes, individually and collectively, lack the
intelligence, capability and technical expertise necessary to deal with these
cabinet departments. To the contrary, it is these cabinet departments, individ-
ually and collectively, which lack the capability and expertise to deal with the
tribes and with each other.^

This lack of coordination often has very devastating effects in the
construction area. The Department of Commerce, for example, will
construct a hospital for tribal use without first checking to see if the
IHS will have the necessary funds available to staff and equip it. IHS,
not planning for this new program, does not have the money to provide
immediate assistance. As a result, many fine facilities sit completed,
yet unused.

Within the complex bureaucratic structure, there also exists a num-
ber of conflicts of interest which have been documented at length
throughout this report. For example, the Department of the Interior
which houses the Indian trust protection mechanisms also has the
major responsibilty for the maintenance and development of Federal
lands and natural resources. Because of this diversified area of re-
sponsibilty, the Interior Department often finds itself representing
both sides wlieji a controversy involving trust land arises.

The above-mentioned examples provide only a glimpse of the prob-
lems encountered in Federal administration. The following section
will attempt to provide you an overview of the major departments
involved in Indian affairs, their functions, and their shortcomings.

COMMERCE DEPARTIVIENT

Commerce Department has many programs for which Indians and
tribes are eligible. Unfortunately, there is not widespread Indian
participation in these programs. Indians are not informed of the
availability of programs and the Department does not place much
emphasis on Indian involvement. Significant efforts, thus far, have
come from the Economic Development Administration and the Office
of Minority Business Enterprises' Indian Desk.

Economic Development Admhiistration

The Public Works and Economic Development Act of 1965, as
amended, provides Indian tribes with economic development assist-
ance under its various titles.

Beginning in 1967, the Economic Development Administration
began a program with special emphasis on assisting Indian tribes
residing on trust lands. The direction of this program has been pri-
marily in the field of planning and technical assistance as well as
the necessary "brick and mortar" money to construct community,

=*= Prepared testimony of the Creek Nation, p. 2, cited in final report of Task Force Three,
p. 42.

92-18J

250

training, and commercial facilities. As of 1976, Indian projects in
28 States have totaled $274,271,491 during the last decade.

Although Federal contribution for non-Indian governnients is
limited by a requirement of matching funds, Indian reservations are
eligible for 100 percent assistance in most cases. In fiscal year 1974,
$22,478,000 was set aside for the benefit of Indian tribes, out of a
total EDA expenditure of $142,744,000.

Although the program has provided substantial benefits to Indian
tribes, it has also created many problems. Insistence by EDA in
imposing their own project priorities and inadequate planning and
feasibility studies for Indian projects have resulted in empty reserva-
tion industrial parks and unprofitable and expensive reservation
tourism projects. The promotion of an effort to bring industry onto
the reservations has not developed employment and the original ex-
pectation of improving the economy. The agency has not coordinated
its programs with other efforts, and the results have been delay, con-
fusion, and overlap with other programs.

Oifice of Minority Business Enterpnse

The purpose of this program is to promote the expansion, in size
and number, of minority business enterprises, including those of
American Indians. Assistance is made available in the form of proj-
ect and research grants, advisory services, counseling, and the dis-
semination of technical information.

A minimum of 25 percent must be provided by a grantee from non-
Federal sources; these funds may be cash or in-kind contributions.
In fiscal year 1974, $1.8 million went to Indian beneficiaries under
this program out of total expenditures of $41.5 million.

This agency's largest asset is its willingness to fund entirely Indian-
run organizations to assist small businesses in receiving help from
private and public sources.

The agency's greatest problem is its position of relative obscurity
within the Department of Commerce structure. The Indian component
does not have the organizational ability or prestige within the De-
partment to properly coordinate with other agencies.

The Small Business Administration

The Small Business Administration is, perhaps, the least effective
of the economic development agencies involved in Indian affairs.
Fraught with uncertainty as to its role in Indian business develop-
ment, with misunderstandings as to the status of trust realty and res-
ervation citizen status in the banking system, and with confusion in
its regulations as to recognition of eligibility of Indian-owned busi-
nesses, the agency remains in a state of inertia in Indian development
concerns.

The Indian programs, and budgets of OMBE, EDA, the Small
Busines Administration, and the BIA Economic Development Divi-
sion, along with other economic development programs should be
located in a single agency for better coordination a)id a more efficient
delivery of Indian economic development budgets. In the interim, an

251

Indian office should be operated from the Office of the Secretary of the
Commerce Department.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Assistance is provided to Indian tribes in establishing housing
authorities to obtain benefits of HUD housing programs, in carrying
out construction of the projects, and in managing them. Assistance
is restricted to Indian tribes that are able to establish housing au-
thorities and carry out programs under the U.S. Housing Act of 1949,
as amended, and the rules and regulations of the Department of
Housing and Urban Development.

Funding has been a problem at HUD since the "freeze" placed on
housing development by the Nixon Administration. Also, as described
in the introduction to this chapter, many HUD programs are not
coordinated with other agencies and, many times, needed housing
are not built because of conflicts with other agencies.

The most important program relating to Indian people is the Hous-
ing and Community Development Program.

Housing and Comrminity Development

The Housing and Community Development Act of 1974 defines the
recipient class as "units" of local government, and includes Indian
tribes in this definition. Title I of the Act establishes block grants for
community development and, although Indian tribal governments
are eligible to compete for grants along with other local governments,
no special set-aside is made for Indian tribes within title I.

Title IV of the Act authorizes the Secretary of HUD to make loans
to public housing agencies to help finance or refinance the develop-
ment, acquisition or operation of low-income projects by such agencies.
For purposes of title IV, "public housing agencies" includes Indian
tribes. In 1974, the Indian set-aside under title IV was $53,671,200.

Title IV of the Act revises sec. 701 of the Housing Act of 1954,
making Indian tribes eligible for comprehensive planning grants.
Funds are distributed among HUD's 10 regions on the basis of
demand, need, and population. In 1974, the Indian set-aside under
title IV was $1,636,000.

The entanglement of housing regulations between HUD and other
agencies must be resolved. As soon as practical, housing matters should
be delegated to the individual tribes, who are in the best position to
solve their own housing problems if given adequate funding and tech-
nical assistance.

DEPARTMENT OF HEALTH, EDUCATION, AND AVELFARE

The Department of Health, Education, and Welfare is heavily in-
volved in American Indian affairs. Indians are eligible for the same
programs for which all American citizens are eligible, but this basic
eligibility is often overlooked in the confusion found in the relation-
ship between Federal, State and local departments and agencies.

252

The areas of major Indian involvement by HEW are Office of
Education (OE), Office of Native American Programs (ONAP),
and the Indian Health Service (IHS) .

Office of Education

The Office of Education provides funds and services mainly with
three major programs.

1. Indian education grants to local education agencies: The objec-
tive of this program is to provide financial assistance to local educa-
tional agencies for the development and implementation of
elementary and secondary school programs designed to nieet the
special educational needs of Indian children. Awards are in form
of grants.

The program grants were $23,800,000 for 1974 and dropped to
$22,700,000 for fiscal years 1975 and 1976. In addition to the reduction
in funding, inaccurate monitoring systems make it unclear whether
or not the designated funds are actually reaching their target
populations.

2. Indian Education Special Programs and Projects: Grants are
authorized under this project for planning, development, and imple-
mentation of programs and projects for the improvement of educa-
tional opportunities for Indian children. They are available to State
and local education agencies, federally supported elementary and sec-
ondary schools for Indian children, and tribal and other Indian com-
munity organizations.

Final funding decisions are made by the Commission on Education
upon recommendations made by the Deputy Commissioner of Indian
Education. Because the funding grants are decided on by persons far
from the field locations, their decisions are often questionable as to
whetlier or not they have been made on sound needs and priority bases.

?). Indian Education — Adult Indian Educatioii : This program pro-
vides Indian education grants for planning, development, and imple-
mentation of programs designed to stimulate basic literacy and high
school equivalency opportunities for Indians in the shortest period of
time.

The program asks for a local commitment after Federal funding;
however, it has been shown that local districts do not pick up on Fed-
eral programs.

"^^liile it is quite clear that Indian adult education needs have not
lessened, the fiscal year budget has remained at $3 million since 1974.

Indian Health Sei'^ice

The Indian Health Service was created in 1955 as an improvement
over the old BIA Ilealth Service. Health service to Indians has| im-
proved, but there remains an ovei-whelming backlog of persons need-
ing health care services. IHS does not reach all Indians, but many
Indians are turned away by other institutions under the belief that IHS
covers every Native American. IHS lack resources and does not coor-
dinate with other agencies to deliver optional services.

253

Oifice of Native American Progra/ms

The Office of Native American Programs, an office in the Office of
Human Development in the Department of Health, Education, and
Welfare, was established throiio:h the combination of the Office of Eco-
nomic Opportunity/Indian Division, and the HEW Office of Indian
Affairs in 1973 to respond to social and economic problems and needs
encountered by Native Americans.

The most commendable, and paradoxically the most problematic,
feature of ONAP is the flexibility of its programs. Its gi'ants, which
ranged from $10,000 to $5 million with an average of $293,000, were
originally used for financial assistance for Native American projects,
training and technical assistance, and research, demonstration, and
pilot projects.

Implicit in the breadth and flexibility of this base were broad pro-
gram goals which led to possible duplication of services. As a result,
in 1975 ONAP outlined a series of precise goals and .strategies narrow-
ing its scope.

Unfortunately, even with a narrowing of its project scope, ONAP
faces difficulties. The program has not yet fully developed its own
policy and administrative structure ; and these changes have not fully
been communicated to the Indian population. The effectiveness of
ONAP programs is clearly limited by its budget, which was only $27
million in 1975.

DEPARTMENT OF AGRICULTURE

Over the past 5 years, Indian tribes have defined their greatest po-
tential for true aiid lasting development as those natural resources
related to their lands: agriculture, aquaculture, timber, and encv^y.
Of these four major resource ca-egories, three fall within the juris-
diction and program expertise of the Department of Agriculture —
agriculture, aquaculture, and timber; yet, little effort is made by
TJSDA to design programs to assist tribes in the development of these
areas of greatest economic development potential.

An issue of ongoing concern to tribes is the issue of nutrition. Major
health problems on Indian reservations are attributed \n large part to
inadequate and poorly balanced diets. The two principal nutrition
programs — the Commodity Food Distribution Program and the Food
Stamp Progi'am — reside in the USDA; yet no program exists within
the Department to address this major problem.

The main USDA program that is designed exclusively for Indians
and tribes is the Indian Land Acquisition Loan Program of the Farm-
ers Home Administration.

Indian Land Acqiusitlon Loan Program

Guaranteed and insured loans are made available to tribes and tribal
corporations by Farmers Home Administration. The objective of the
program is to enable tribes to mortgage lands as security for loans
with which to purchase additional lands within reservations. These
loans totaled $9.9 million in 1974.

254

Elio-ibility is limited to recoofnized Indian tribes, corporations, and
Alaskan communities, which are without adequate uncommitted funds
to acquire needed lands within the r^servations and cannot obtain
sufficient credit at reasonable terms from other sources. Use of the loans
is restricted to the purchase of land for the benefit of a tribe or its
members, and to pay expenses incidental thereto. Although the Sec-
retary of the Interior must determine that lands to be acquired lie
within a reservation or Alaskan community incorporated pursuant to
the Indian Keorganization Act, review of the application and award of
the loan is made by the local FHA. This is a valuable program for
tribes to acquire needed land.

The Department of Agriculture uses the nebulous standard that all
loans will be secured in a manner that will adequately protect the Gov-
ernment during the repayment period. Also, the small amount of
money available ($0.9 million) does not allow participation by many
tri])es in need of additional reservation land.

jNIany rural Indians and tribes are dependent upon agriculture foi
their livelihood. The USD A should make information on this program
and the others it offers easily available to Indian peoples and tribes so
they can more widely benefit from them.

DEPARTMENT OF THE INTERIOR

The Department of the Interior contains the agencies that most
directly affect the lives of almost every American Indian. In the De-
partment of the Interior lies the responsibility of virtually all Federal
lands and resources including water. In the Department of the In-
terior lies the trust protection of Indian lands and resources. And in
the Interior Department lies the greatest conflict of interest, dealt
with in detail through this report.

The Bureau of Indian Affairs, although it comprises the largest
agency within the Department of the Interior, remains a stepchild in
priority of program emphasis.

The Bureau of Indian A-ffaii-s

The Bureau of Indian Affairs employs over 16,000 personnel on a
permanent basis, and up to 18,000 including part-time employees. In
fiscal year 1977 the BIA budget was $777,019,000. The BIA controls
[)rograms in Indian education, tribal government, social services, trust
protection, resources development, roads, law enforcement, and many
others.

The Bureau of Indian Affairs is, most of all, an inefficient organiza-
tion. Its principal problem is its inability to deliver program funds
directly to Indians. In fiscal year 1977, the BIA returned $29.5 million
in unexpended funds to the U.S. Treasury, at a time when its area
offices were telling Indian tribes that "self-determination" grant funds
were not available.^^

Over the years the BIA has been seen by Indians as a paternalistic
agency that did not respond to Indian needs. The BIA has many prob-

as Interview with Joseph Amaral, joint funding coordinator, Intergovernmental Relations
and Regional Operations Division, Office of Management and Budget.

255

lems that overlap and contradict each other. Attempts have been made
to correct some of the shortcomings of the Bureau. The latest being
the Indian Self-Determination Act, Public Law 93-638, which is hav-
ing a limited success.

The Bureau is commented on in depth later in this chapter.

DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, PRCGSAM BUDGET SUMMARY

[In thousands]

1973

1974

1975

1976
Availability

1977
estimate

Operation Indian programs:

1. Education

2. Indian services

187, 326
116.230
27, 184
12,414
42, 855

184, 187
112, 885
29, 097
12,414
43, 159

226, 495
98, 603
70, 360
18, 661
65, 013

243, 085
129, 531
83, 578
21,337
73,746
2,115

255, 143
154, 240
101 374

3. Tribal resource development. .

4. Trust responsibility services

27, 450

5. General management — facilities operation

6. Navajo-Hopi settle program -..

83, 143
4,875

General administration '

6,200

5, 319 .

TotaU

392, 209

386, 361

479, 132

553, 392

626, 183

Construction:

1. Irrigation systems

2. Construction, building and utility

16, 800
32, 219

16, 800
27, 200

26, 435
35, 369

30, 400
43, 522

30, 010
47, 091

Total

Road construction:

General road construction

56, 019
45, 539

50, 000

44, 000
43,000

70,000

61, 804

59, 500
(60, 500)
(100, 000)

70,000
38, 000
20, 000

73, 922

66, 705
(66, 705)

77, 101

39, 075

(68, 544)

27, 205

Obligative authority

Budget authority

Miscellaneous appropriation:

Alaska Native claims. .

70, 000
3, 000 ..
10, 000

30, 000

Revolving funds-loans

Laon guaranty. ... ..

"■"'i5,"d6o'

Total appropriations

543, 767

543, 361

728, 436

777, 019

787, 359

1 General administration is now distributed and identified as such.
-See the following table:

1975

1976
availability

1977
estimate

Includes CSC employment and general programs.
Including pay raise

479, 132

9,318

83, 453

553, 392
10, 474
63,786

589, 510
"11 500

Net increase over prior year

•24,618

• Estimates need program budget summary, 1977 for actual comparison.

Note; 1973 and 1974 used differing line items than present, rearranged for comparisons.

DEPARTMENT OF LABOR

The Department of Labor, Division of Indian and Native Ameri-
can Programs (DINAP), administers title III of the Comprehensive
Employment and Training Act. The CETA program has been a real
breakthrough in Indian programs. A summary of Department of
Labors Indian programs shows that titles II, III, and VI have dis-
tributed $128,040,001 to 91,000 participants in fiscal year 1977. Between
84-85 percent of the total appropriations for the CETA programs are
delivered directly to tribal and off-reservation Indian communities.
Further, the maximum allowable level of administration permitted
is 20 percent. Administrative cost per participant averages approxi-
mately $231.

256

Indian GET A Program

Title III of the Comprehensive Employment and Training Act of
1973 (CETA) provides grants for comprehensive manpower programs
and services for the benefit of unemployed, underemployed and eco-
nomically disadvantaged Indians.

Eligible programs include skill and vocational training, public serv-
ice employment, work experience, on-the-job training, and others.
Eligible services include such items as child care and transportation.
There is no separate appropriation for this program but it is funded
by a set-aside of funds equal to at least 4 percent of the moneys allo-
cated for the ijeneral manpower programs under title I of the Act.
To date, the Department has not exceeded the minimum 4 percent
floor established for funding the program.

CETA grants may be made available to qualified prime sponsors
which include tribal governments and other Indian organizations. In
fiscal year 1976, approximately $50 million was expended under title
III. Since then the program has expanded.

A weak point of the program from the standpoint of many of the
prime sponsors has been DOL's relative inability to provide more
adequate technical assistance in a more timely fashion. While the pro-
gram must be commended for its impressive delivery record to date, it
should not weaken the programs of its Indian grantees by not having
technical assistance available when needed.

DOL Economic Stimulus — Strategy for the Future

The Division of Indian and Native American Programs (DINAP)
is presently preparing a program for the future to be directed at
"economic stimulus" programs which will be concentrated on para-
medical and health training; paralegal training; onsite management
training; agricultural; road construction training; domestic fuel
development ; emergency vehicle operation, and other program designs
of a similar nature. These programs have been recently targeted by the
President as areas for new Labor Department emphasis. This program
is estimated to be expended at $40 million in fiscal year 1978.

The relative success of the Indian CETA programs administered by
the Department of Labor need to be examined closer by those who
would attempt reform in Indian administration. An examination of
the legislation may provide the answer since limitations on adminis-
tration and specific program set-asides are provided for in the statute.

Tribal Eligihility for and TJt'ilhation of Federal
Domestic Assistance Programs

The service delivery svv^tem, which provides Federal domestic as-
sistance programs to eligible applicants, is generally administered
through imits of State and local government. Of the $60 billion which
was expended in Federal domestic assistance in 1976, 75 percent was
administered through States.^*

^Tribal Government Tiask Force (Number Two) Final Report.

257

This system for the delivery of services places tribal gov-
ernments in a position which is in direct conflict with established
Federal policy and even the earliest Supreme Court decisions
articulating the Federal-Indian relationship. ^^ This jurisdictional
relationship is discussed in chapter 5. Because 75 percent of all
Federal domestic assistance programs are administered through State
governments, it is important to analyze the conditions in which tribal
governments are forced to come under the jurisdiction of the States to
receive Federal domestic assistance. Requirements of State incorpora-
tion of tribal enterprises, for eligibility under some Federal domestic
assistance programs (Small Business Administration Programs) are
in direct conflict with the Federal-Indian relationship. This relation-
ship guarantees the jurisdictional independence of tribal governments
from State governments. The recognition of tribal sovereignty and the
powers of tribal governments provides a solution to this problem, by
asserting the power of a tribe as equal to that of a State, for incorpora-
tion of tribally chartered enterprises and organizations. A State, as a
dependent sovereign, has the power to recognize its political subdi-
visions or enterprises as eligible units for Federal domestic assistance ;
then a tribal government, which bears a similar status in the Federal
system also must be recognized as having the power to incorporate
the enterprises which come under the jurisdiction of the tribal govern-
ment. Historically, tribal governments, as local governments eligible
for Federal programs, are often overlooked in the planning stages of
Federal programs. The problem is compounded further by a lack of
sufficient congressional guidance of executive agencies charged with
the responsibility of service delivery.

Congress has authorized special Indian programs in virtually every
Federal department. Nevertheless, Federal domestic assistance pro-
gram agencies are hesitant in determining eligibility of Indians for
Federal programs, and in using tribal governments as the primary
service delivery mechanism on reservations. As a result, Indian tribes
are denied the resources of a majority of Federal domestic assistance
programs in their eft'orts toward development and self-determination.
No effort is made to include Indian tribes in the majority of Federal
programs, and to the extent that tribes do participate, it is often under
adverse conditions.

There is a great variety of mechanisms for delivery of Federal do-
mestic assistance to the community level. Sweeping recommendations
with respect to service delivery may not be appropriate in all circum-
stances. The Congress is urged to adopt the policy that each Federal
domestic assistance agency must recognize tribes as governmental
units for the delivery of services. With such a mandate, the consoli-
dated Indian affairs agency should coordinate all Federal agencies in
developing procedures for such a delivery system, in conjunction with
tribes themselves.

Recent legislation suggests that tribal governments should be ac-
corded full recognition throughout the system of Federal domestic
assistance (General Revenue Sharing Act; Comprehensive Employ-
ment and Training Act; Joint Funding Simplification Act; Indian

SE E.g. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

258

Self -Determination and Education Assistance Act; Indian Financ-
ing Act), Because of the highly complex nature of Federal domestic
assistance, many inconsistencies remain in the treatment of tribal
government. These deficiencies relate to the threshold question of the
eligibility of Indian tribes and tribally chartered organizations and to
the character of tribal participation in the delivery.

Of the 598 Federal domestic assistance programs studied by the
President's Council on Federal Assistance Review only about 78 had
direct tribal pailicipation. It would require a study of mannnoth pro-
portions to outline the specific steps needed to integrate Indian tribes
and tribally chartered organizations into the delivery system of all
1,000 programs. A Special Action Office on Indians in the White
House, acting under a strong congressional mandate, could work with
the tribes and the various departments to develop an appropriate
delivery system. It could also develop a planning mechanism to assure
that goals are set by the tribes and that Federal dollars are targeted
to reach those goals, while concurrently establishing an independent
agency for Indian Affairs.

The Congress, in creating these 1,000 programs, determined that
they were of considerable importance in assisting State and local gov-
ernments to meet pressing local needs. The promise of Indian tribal
self-determination, repeatedly made by both the Congress and the
executive branch, can hardly be implemented if Indian tribes are
denied the right to participate in the basic programs available to
every other government in the United States, Given the relative
severity of social and economic problems in Indian communities and
on Indian reservations, it is suggested that each domestic assistance
agency should not oidy be required to serve Indians, but should be
directed to devote a share of the total program resources in proportion
to the need, rather than in proportion to the )->opulation as well.

Congress has recognized the need for Federal domestic assistance
programs to be made relevant to local governmental capabilities and
needs in its passage of the Joint Funding Simplification Act. This Act
authorizes the waiver of administrative requirements which force local
units of government to set up a vast array of financial management and
auditing the waiver of administrative requirements which force local
units of government to set up a vast array of financial management
and auditing procedures beyond their ordinary capabilities. The Act
is targeted at reducing duplicatory procedures conducted by each Fed-
eral agency, and is aimed at encouraging Federal agencies to cooperate
with one another in responding to the needs identified by an applicant
unit of government. The successful negotiation of an integrated grant,
provided for under the Act, has been achieved by the Salt River Tribe
of Arizona. Funding of 41 Federal domestic assistance and BIA pro-
grams is coordinated into one integrated grant. The cooperation of
the Federal agencies involved in the Salt River project has shown that
joint-funding to meet tribal government-identified needs can be ac-
complished, and that the entire Federal domestic assistance program
deliveiy system can be coordinated for maximum effectiveness. As-
suming the goal of the Federal Government in providing Federal
domestic assistance programs to State, local and tribal governments
is to assure such maximum utilization of funds and services, then the

259

implementation of joint fnnding mechanisms mnst be pursued tlirougli
governmentwide cooperation among the Federal agencies concerned.

T]ie Federal domestic assistance program delivery system should
be made relevant to the congressional and Supreme Court recognition
of the status of tribal governments within the Federal system, and the
goal of economic self-sufficienc}^ articulated in the Indian Self-Detcr-
mination and Educational xVssistance Act.

To assist with implementation of this reconnnendation, to provide
the program coordination that woidd be necessary to assure maxinunn
impact from Federal resources, and to target Federal programs for
maximum benefits for Indian development, the task force has recom-
mended the creation of a Temporary Special Action Office on Indian
Afl'airs in the White House.

ACCESS TO PROGRAM INFORMATION

Access to Federal program information is a crucial preliminary to
the use of Federal domestic assistance programs by all governments,
including tribal governments. The Federal Government provides Fed-
eral program information tlirough its annual issuance of the Catalog
of Federal Domestic Assistance Programs, which contains descrip-
tions of the 1,030 Federal domestic assistance programs now oifered
by the 55 agencies of the executive branch. The catalog is distributed
to all state, local, and tribal governments and attempts to provide all
relevant information necessary to determine eligibility, by the ap-
plicant government. Eligibility is defined in the authorizing legisla-
tion of a program act or in the administration regulations associated
with an act.

However, since Congress and its numerous committeas, established
to deal with the entire scope of the Federal responsibility have not
always been conscious of the political status of tribal governments in
creating authorizing legislation for Federal domestic assistance pro-
grams, tribal government eligibility for any particular domestic as-
sistance program may not be specified in the catalog. A tribe has no
means of ascertaining statutory barriers in the authorizing legislation
or program act, which would j^revent tribal government eligibilitj^ for
a given program.

Additional information, relating to Federal domestic assistance
programs, is made available to state and local units of government
through the Intergovernmental Cooperation Act of 1968. Among its
stated purposes is the establishment of a commission which would
bring together representatives of Federal, State and local governments
for consideration of common problems. A forum would be provided
for discussing the administration of Federal grants and other ]5ro-
grams requiring intergovernmental cooperation. In addition, this
group would recommend the most desirable allocation of governmental
functions, res]5onsibilities and revenues among the several levels of
government. It would also recommend methods of coordinating and
simplifying tax laws and administrative practices to achieve a more
orderly and less competitive fiscal relationship between the levels of
government.

260

However, at tlie time the Intergovernmental Cooperation Act was
passed, tribal governments were once again overlooked as eligible
miits of government that would benefit from and contribute to this
process. Thus, the access to Federal program information affecting
Indian people is denied tribal governments.

The solutions to these problems are embodied in a bill now pending
in Congress — the Federal Program Information Act, and a proposed
amendment to the Intergovernmental Cooperation Act. If enacted,
the Federal Program Information Act would create a data base of
all Federal domestic assistance programs, and would provide com-
prehensive coverage of authorizing legislation, program acts, and ad-
ministrative regulations. This bill has the potential of increasing the
flow of Federal program information to tribes. If properly constructed
it would specify tribal government eligibility, as well as administra-
ti're requirements which might affect the prime sponsorship status of
the tribal government.

TECHNICAL ASSISTANCE

Technical assistance for Indian tribes foster their socioeconomic
stabilization and development. It is a crucial aspect of any effort by
the Congress or executive branch to encourage Indian people in the
performance of their own management, administrative, and technical
functions. Technical assistance should be made available primarily for
development of threshold management capabilities and to provide eco-
nomic support activities. This type of assistance is presently the re-
spoiisibility of several departments within the executive branch, in-
cluding the Office of Native American Programs and the Indian
Health Service in the Department of Health, Education, and Welfare ;
the Office of Minority Business Enterprises and Economic Develop-
ment Administration in the Department of Commerce; and other
offices in the Departments of Labor and Housing and Urban Develop-
ment. Concentration of technical assistance requirements and potential,
however, is appropriately within the Bureau of Indian Affairs.

Indian tribes and organizations are not encouraged to, and are often
discouraged from, making their own need assessments for technical
assistance.

Agencies make evaluations and attempt to apply national solutions
to local situations.

Agencies predetermine contractors and technical assistance person-
nel, in violation of Federal procurement and regulations and existing
Indian preference laws. Contractors and personnel hired feel they are
responsible to the Federal Government, rather than to tribes.

Federal employees retained for technical assistance projects are
often not specially trained in the subject area.

Federal domination prevents tribes and organizations from increas-
ing their own capacity and maintaining technicians of their own. This
perpetuates the system of Federal control.

Autocratic three-tiered Federal structures use appropriations as a
source of power, rather than for direct assistance. Each level shares in
this distribution of power within the bureaucracy, rather than direct-
inf>- it to tribes.

261

111 most cases, Federal agencies actively resist, more than encourage,
the development of corps of Indian technical specialists. This per-
petuates the employment of Federal bureaucrats and non-Indian
contractors.

The present Bureau of Indian Affairs' technical assistance service
is one of the principal sources of these problems. The organization is
inadequate for many reasons. Personnel are not appropriate to the re-
quirements of a specialized technical assistance effort. There are no
specialized technicians within the Bureau of Indian Affairs to provide
for the rapidly increasing demand for specific expertise in highly
technical areas. The depth of training and necessary experience pre-
cludes using or retraining existing personnel, in most cases. The pres-
ent autocratic organizational structure is also not flexible enough to
permit technicians to move quickly from area to area,

]Many reasons can be given why an organization, geared to super-
vision and trust administration, is not appropriate to assist Indians in
highly specialized and technical areas. The important point, however,
is that new methods must be devised to deliver services more directly
to Indian tribes.

In evaluating methods to adequately provide services to tribes by
Federal agencies the obvious is often overlooked. It is clear that one
of the methods which could be used is to deliver contract funds directly
to tribes, for the purposes of purchasing their own technical services.
There has been a great amount of success in this area. As a matter of
fact, many of the more successful tribes, who have developed sophisti-
cated and efficient management and economic systems, have done so by
purchasing their assistance from the open market. In many instances,
initial technical assistance should be pro\dded to tribes to enable them
to understand and use procedures for acquiring further technical as-
sistance. According to the final report of Task Force Number Three :

There continues to be, in spite of studies conducted in recent years, an inequity
existins: in technical assistance and services delivered to Indian tribes. The tribes
equipped with capable technical staff and financial resources are more successful
than smaller, less well-developed tribes in preparing basic proposals to secure
funds for Federal program assistance.

The notion that all services must be rendered by civil service em-
ployees is outmoded, if not completely obsolete. Other agencies within
the executive branch have provided far more effective methods. For
instance, the Office of Native American Programs and the Indian Desk
of the Office of Minority Business Enterprises have provided for "call
contracting". A tribe, enterprise, or individual may call on the services
of a contract technician in a specific management or economic area by
making a request to the contractor or agency. In this procedure, aii
assessment of the report is made, and a specialist is assigned who must
file a written report in a predetermined number of days. The Economic
Development Administration already contracts virtually all of the
Indian technical assistance efforts.

Another helpful procedure would be the establishment of a national
skills bank. This bank, or list of available technical talent, could pro-
vide, as one of its many byproducts, an inventory of skilled contract
technicians in many management and technical areas. Individuals

262

could be made available on a schedule basis and be reimbursed by a
national technical assistance contract funded by executive departments.

Associate consultants and prime contractors should, of course, be
predominantly Indian. Indian preference in employment and contract-
in*,' throuo:h sec. 7(d) of the Indian Self-Determination Act, should be
observed. Eequirements in each of the technical positions in this crucial
area would be based on highly specialized qualifications.

The contract funds could be provided collectively by the Department
of the Interior, the Department of Commerce, the Department of
Housing and Urban Development, the Department of Labor, the De-
partment of Health, Education, and Welfare, and the Department
of Agriculture, as well as others. There are more than adequate
amounts of technical assistance financing available from existing ap-
propriations and executive authority.

For instance, through the Indian Financing Act, the Bureau of
Indian Affairs is permitted 4 percent of its annual appropriations for
technical assistance. There is no proviso that this budget has to be
utilized by civil service employees. The Indian Self-Determination
Act also lias ample funds available which are presently administered
by both the BIA and the Indian Health Service. The early poor ad-
ministration of P.L. 93-638 grant and technical assistance funds, by
HIS and BIA, suggests that Federal agencies often are not the best
administrators of self-help mechanisms.

The fundamental precepts of self-determination stand in stark con-
trast and opposition to agencies which commandeer Indian appropria-
tions for their own purposes and turn a facilitating mechanism for
direct use by Indians into a BIA or IHS program. Indian tribes,
organizations, and individuals need money to exercise self-determina-
tion and to purchase technicians directly who are not available in
either one of those agencies. This is essential to accomplish their man-
ngement, training, and economic development goals expeditiously.

A recent review of the Indian Technical Assistance Center Activ-
ities in Denver and on some of the reservations, prompted an observa-
tion that has been felt by Indian people over a long period, i.e., that
the sooner tribal level control was developed and used the sooner the
tribal participation effort would become productive. While the revicAv
has a critical complaint, it does recognize certain organizational thrusts
not heretofore recognized as significant by the Bureau. The following
is quoted from the Review of the Indian Technical Assistance Center
(ITAC) at Denver, Colorado, by Robert Hemmes dated January 14,
1977:

The unique opportunity the ITAC has before it is to fill the void between the
Bureau and the tribes that has been the source of years of castigation and
criticism of the Bureau. Until recent years no real opportunity existed for a
remedy, but through evolution of a series of contradictory and criss-crossing
policies over the last 100 years, we have now arrived at the fitst opportunity
to implement Indian self-determination. Necessary legislation has been passed
and attitudes have come into consonance whereby the Bureau may assume its
role of providing technical support and resources to assist in Indian self-gov-
ernment and self-determination.

The missing link in the Bureau/tribal relationships is the lack of a responsive
unit of the Bureau to listen to tribal leaders and to inventory tribal needs and
opportunities. The Bureau is hierarchically oriented — it carries out legislation,
issues manuals to its staff, writes procedures for tribes. ITAC is tribally

263

oriented — it is responsive to tribal attitudes and needs. In current argot it could
be said that the Bureau worlds from the "top down" and ITAC operates from
the •'bottom up." Unfortunately, there is an "error of closure" where they meet.
Ideally the Bureau would provide the function, or process, of integrating Fed-
eral legislation and resources with tribal governments and needs. Through cir-
cumstance the Bureau is not providing this function and ITAC has filled the gap.

The unique opportunity facing us is to culture and nurture ITAC into an
operating model for the process of delivering obligatory and necessary Federal
support and resources to tribal governments and the Indian people. The process
should be a two-way street. The process should "see" the Federal/bureaucratic
constraints and charters, but also the tribal and Indian viewpoints, goals, and
needs. The process should reconcile the two ends of the street in an optimal
manner.

This sort of process would be innovative not only in the Bureau, but in the
Federal government. The Federal departments are much like the Bureau in their
isolated functionally oriented charters. They, too, put the burden of coordination
on their constituencies — the State and local governments. Metropolitan Plan-
ning Organizations, etc. The function of government, whether in the Bureau or
the Federal department, is to do for the people what the people cannot do for
themselves either individually or through their local (tribal) governments. The
Federal government (Bureau) .should at least be capable of organizing and
coordinating its own resources to support the people. The people and the local
governments should at least be capable of choosing their own feasible future
from among the alternatives and organizing, inventorying and coordinating their
needs and requests to the Federal government. And there should be a process for
the reconciliation of the two.

The ITAC opportunity is to continue the momentum and goodwill it has with
resi>ect to being responsive to the tribes, but temper this with its Federal obliga-
tions. ITAC, with encouragement and guidance from the Bureau could become
the model for the missing process.

Eventually, the Bureau could emulate the ITAC model and escalate the pro-
gram from a process to deliver small and scattered projects to one that would
turn on the full force of the J^ederal $2 billion per year in an optimal manner
for the enhancement of the welfare of the Indian people.

INDIAN PREFERENCE IN CONTRACTING

The use of Federal contracting and procurement to enhance Indian
economic development and promote Indian enterprises has had little
impact. Despite large Federal expenditures, unemployment among
American Indians still far exceeds the national average; the income
level of tribal peo])le is still far Iwlow the national average; and the
number of viable Indiaii-owned economic enterprises remains low and
is increasing at a pace far slower than for other minorities.

Since early 1975, a primary focus of the eifort to upgrade the eco-
nomic situation of American Indians has been the Indian Self-Deter-
mination and Education Act (Public Law 93-638). This law estab-
lishes a policy that the United States Government will transfer, from
the Federal Government to the Indian people themselves, control of
Federal services and programs for Indians. To achieve this transition.
Public Law 93-638, section 7(b) requires all agencies of the Federal
Government to subcontract, to the greatest extent possible, with In-
dian tribes. Further the Act requires that preference be given to hiring
Indian personnel for these programs.

There are now three elements involved in evaluating Indian con-
tractors either in applying for or engaged in contract work on Indian
programs.

Qualifications

The standards of qualifications as now required in general procure-
ment regulations by the General Services Administration are extremely

264

difficult to meet by new businesses, much less new Indian businesses.
Evaluating the qualifications of the background of any contractor is
necessary to determine :

the successful experience of the prospective contractor ;

the financial stability to manage and finance the operation;

the qualifications for bonding under normal bonding processes ;

the capability of drawing upon general craftsmen through labor
unions or tribal governments.
In assessing applications of new contractors, the majority of skilled
Indian craftsmen desiring to enter the business usually lack the ex-
perience normally required. It is initially necessary to acquire the
necessary experience for supervision, training, and administrative ac-
tivities involved in operating and conducting business as well as per-
forming the work required under the contract. Technical assistance and
training have been provided Indian people throughout the country for
some time and now that contracting activities provide an opportunity
for establishing privately owned contractors the general qualifications
still eliminate them because of inadequate contracting experience.

Inspection for Satisfactory Performance

The technical assistance and training programs on Indian projects
should be continued during the operation of a contract so that inspec-
tions of compliance to specifications would be more in the form of
assistance and an effort to keep the performance at a satisfactory level,
rather than of such a critical nature that Federal inspections would
tend to quell, terminate, or paralyze a contractor because of difficulties
being experienced during the performance of work. The Indian Fed-
eral efforts for giving aid through technical assistance, training and
supervision and the development of self-sufficiency for tribal enter-
prises or private entrepreneur is defeated unless a coordinated effort
is continued through the contracting process. Inspections should be
often or continuous with the objective in mind of helping the con-
tractor accomplish satisfactory production.

Terminxition of Contracts

Under normal circumstances of Federal procurement regulations,
deficiencies noted in contracts are justification for withholding pay-
ments, stopping work, renegotiating specifications, or terminating and
suspending operations of a contract. In the case of Indian projects
under the authority of tribal governments, it should be required that
no unilateral decisions of this nature be made to prevent discourage-
ment or failure and bankruptcy of new Indian contractors. It should
require a coordinated meeting of the tribal government representa-
tives, the U.S. representatives and the contractor to discuss the means
of correcting deficiencies. Should the ultimate decision be made to
change contractors, employees should be permitted to stay, activities
should be coordinated so as to prevent serious interruption of the
total program. In the recommendations of the contracting study, such
elements have been considered in the review of past history and fail-
ures have developed even though EDA has provided feasibility sur-
veys to all non-Indian contractors and providing its own technical

265

assistance and training activities. Yet, in this report, specifically in
the development of industrial park projects, 90 percent of the projects
have resulted in significant failures. It is considered necessary to nego-
tiate contract supervision through private sources as well as taking
advantage of governmental technical assistance.

PROBLEMS IX PUBLIC LAW 93-63 8 IMPLEMENTATION

A major reason for the limited success achieved in the field of In-
dian management and economic development is that Federal agencies
have failed to implement the mandates of Public Law 93-638. This
conclusion is supported by a special study ^^ conducted for the Amer-
ican Indian Policy Review Commission.

Widesj^read confusion exists among the various agencies as to the
scope and applicability of the Act. Several agencies simply do not see
the Act as applicable to their programs. Other agencies (DOL, DOT
and HUD) recognize the Act as applicable only to those programs
which are statutorily mandated for the benefit of Indians.

Even among those agencies accepting Public Law 93-638, there is a
prevalent feeling that the Act conflicts with existing Federal procure-
ment regulations and with Executive Order 11246, which requires all
Federal contracts to include a clause prohibiting racial discrimination.

The American Indian Policy Keview Commission's special contract-
ing study cites several other reasons for the failure of Federal con-
tracting to significantly increase Indian self-determination. Study
interviews demonstrated that Government agencies consistently fail
to recognize tribal sovereignty and the unique trust and treaty obliga-
tions of the Federal Government to American Indians.

The Small Business Administration's policy discriminates against
communal ownership and tribally chartered corporations. This effects
situations where bonding is required of an Indian contractor.

The lack of a list of Indian contractors has made it difficult for
agency contract officers to identify qualified Indian contractors. The
BIA maintains the most recognized list but even this is limited. Sig-
nificantly, the lack of an Indian contractors' list implies that qualified
Indian contractors are unavailable.

The absence of a govermnentwide policy to provide clear direction
in standard contract language was identified as a major obstacle to
Indians who do manage to secure government contracts.

OLD PROBLEMS

The Bureau of Indian A fairs

The Bureau of Indian Affairs was established in 1832," to imple-
ment those duties of the Department of the Interior as the delegated
prime agent in carrying out the United States' trust responsibility to
Indian people. The trust principle includes the permanent obligation
to provide those services necessary to protect and enhance Indian
lands, resources, and tribal self-government. In addition, under the

=6 Tribal Government Task Force (Number Two) Final Report, pp. 41—42,
^ 22d Cong., 1st sess., ch. 174, sec. 1.

92 185—77 18

266

Snyder Act of 1921,^^ Congress further authorized expenditure of ap-
propriations by the Bureau of Indian Aflfairs for the general support
and "civilization" of Indians.^^ To accomplish these ends, the Bureau
of Indian Affairs, by their own varying estimates, employs between
13,000 and 18,000 permanent and temporary employees and provides
services under 33 program title, all of which are specifically targeted
at providing services to Indian tribes and their members.

Administrative Problems Determined by the BIA Management Study

The delivery system through which Bureau programs are adminis-
tered is composed of a central office located in Washington, D.C., 12 *
area offices representing broad regional divisions, and 82 agency offices
representing subordinate field installations. The inadequacies of this
complex organizational structure in establishing an effective service
delivery system has been consistently documented in the 75 studies
of tlie Bureau of Indian Aflfairs conducted over the past 25 years, in-
cluding the most recent BIA Management Study ,■*" mandated by this
Commission under Public Law 93-580. Moreover, complaints of In-
dian people addressing the Bureau's service delivery system number
in the thousands.

The Bureau is a frequent target of criticism both by the Indian
people and Congress. Therefore, numerous studies have been under-
taken by various Federal agencies and other organizations. The last
major comprehensive review was the Meriam Report of 1928, which
helped foster widespread reforms during the 1930's. However, since
the original intent of these reforms has been compromised and dis-
torted, urgent problems and confusion as to Indian goals and actions
led to the creation of the American Indian Policy Review Commission.

A review of the findings of each of these studies points to problems
in administration of the Bureau programs which are directly related
to the organizational structure of the Bureau. The layered system of
administration which exists in the Bureau means that out of every
dollar targeted for Indian programs, the costs of administration for
each level of Bureau organization must be extracted first. Estimates of
that percentage of each Indian dollar which is used to administer the
BIA organization range from 78-90 percent. After administrative
costs for program operation have been extracted at each level, there
is only a small amount of funds left to operate a program at the reserv-
ation level, often too small an amount to effectively deliver services.

38 25 U.S.C. sec. 13.

39 The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior,
shall direct, supervise, and expend such moneys as Congress may from time to time appro-
priate, for the benefit, care, and assistance of the Indians throughout the United States for
the following purposes :

General support and civilization, including education.

For relief of distress and conservation of health.

For industrial assistance and advancement and general administration of Indian
property.

For extension, improvement, operation, and maintenance of existing Indian irriga-
tion systems and for development of water supplies.

For the enlargement, extension, Improvement, and repair of the buildings and
grounds of existing plants and projects.

For the employment of Inspectors, supervisors, superintendents, clerks, field matrons,
farmers, physicians, Indian police, Indian judges, and other employees.

For the suppression of traffic in Intoxicating liquor and deleterious drugs.

For the purchase of horse-drawn and motor-propelled passenger-carrying vehicles
for official use.

And for general and incidental expenses in connection with the administration of
Indian Affairs. Nov. 2, 1921, c. 115, 42 Stat. 208.
*" BIA Management Study, Final Report of the Task Force on Federal Administration
and Structure of Indian Affairs to the American Indian Policy Review Commission, 1976.

267

Indian people question the Bureau's administrative overhead as it
affects the level of services they receive and particularly question the
need of the area offices. Decisionmaking is likewise impeded by a per-
vasive lack of communication between agencies, area offices and the
central office. Tribally generated suggestions for change in programs
and services to better meet tribal needs is information that is slow to
flow upwards, remedies to effectuate needed change must pass through
channels which resist change and narrow the effectiveness of central
office-generated problem solutions. The result is a breakdown in the
service delivery system of Bureau programs. Indeed, review of the
data collected by this Commission and contained in previous studies
of the Bureau of Indian Affairs reveals that Indian people are not
receiving the full degree of services and funds from specially targeted
congressional appropriations earmarked for the benefit of Indian
people.

EXHIBIT III
FISCAL YEAR 1976 EXPENDITURE DATA, ALL FUNDS BY OFFICE

Banded Unhanded Total Per Indian

(thousands) (thousands) (thousands) served

Aberdeen $68,024.8 $21,007.6 $89,032.4 $1,823

Albuquerque... 39,351.0 9,847.3 49,198.3 1,449

Anadarko 23,708.1 1,402.5 25,110.6 1,059

Billings... 31,293.7 13,188.7 44,482.4 1,461

Eastern 13,237.7 1,756.0 14,993.7 960

Juneau 47,006.2 6,479.0 53.485.2 1,075

Minneapol.3 ._ 14,757.0 1,951.8 16,708.8 686

Muskogee... 28,604.1 15,917.2 44,521.3 712

Navajo... 174,447.0 48,638.0 223,085.0 1,632

Phoenix.. 86,064.5 34,398.8 120,463.3 2,719

Portland 76,721.1 19,494.1 96,215.2 3,632

Sacramento 14,515.8 1,847.3 16,363.1 490

Central office 111,705.9 111,705.9

Publicschool grant 26,845.0 26,845.0

Total 617,731.0 314,479.2 932,210.2

1 From viiorking papers of "BIA Management Study," American Indian Policy Review Commission.

Exhibit II illustrates the state of the grossly inequitable distribution of appropriations far beyond w/hat should be per-
mitted by administrative discretion. The BIA should be forced to utilize a system which distributes funds equally by pro-
gram from a clearly defined formula. Variables to this should be clearly justified and subject to tribal appeal.

The study makes 23 recommendations in these management cate-
gories: Budget; personnel; and management information. A section
on organization structure and implementation is included. The study
is confined to management principles Avhich erect barriers and influ-
ence the quality of response to Indian needs.

Some Internal Management Problems

A number of problems which significantly dilute the overall effec-
tiveness of the Bureau of Indian Affairs have been identified. For
each problem, a solution has been proposed and the benefits which can
be expected outlined. The recommendations of previous studies failed
as effective management tools for the same reason : None of them had
a specific mechanism for followup or "forced" implementation. In
most instances, there was virtually no follow-throLigh of the solutions
suggested. Something more than problem identification and proposed
resolutions is necessary.

More serious weaknesses observed were :

1. There is a notable absence of managerial and organizational
capacity throughout the BIA.

2. Decisions are made on a day-to-day basis with little long-
range planning.

3. Communications among the organizational levels are poor, as
are agency-tribe relationships.

4. Evidence of critical analysis and determination of appro-
priate performance standards for key positions are almost non-
existent.

5. Employee attitude and morale are poor.

6. The budget system (Band Analysis) is inadequate.

Organization

BIA internal communications are poor and the absence of two-
way communications for transmittal of vital data seriously impede
the efi'ectiveness of the Bureau. Information filters down from the
central office to area directors and agency superintendents, but not
discussed — it is imposed upon tribal governments.

During the course of this study, a number of organizational prob-
lems were observed. While many are referenced in other report sec-
tions, there is a need to modify the Bureau's overall organizational
concept.

Directives are often superficial and inappropriate. Almost continual
internal reorganization and changing interpretations create a rumor-
intensive environment where many employees spend excessive time
generating or reacting to rumors. The effect on inorale is highly detri-
mental and reflected by poor employee motivation and performance.

Due to the program-oriented structure of the BIA, broad areas of
control are allowed to exist — particularly at the local level. This re-
sults in the inability of agencies to receive sufficient specialized pro-
gram guidance.

At present, each level is self-contained with responsibility for both
program and administrative activities.

Excessive controls at the area level make it impossible for tribes to
exercise any degree of self-determination.

The present structure allows for the existence of separate and con-
flicting areas of function. The result is poorly managed project tech-
niques planned in inadequate time periods.

Evidence of critical analysis and determination of appropriate per-
formance standards for key positions is almost nonexistent and
achievements in most areas are not measured against appropriate yard-
sticks. Clerical procedure wastes time, hampers program development
and promotes bitterness among tribal officials. Directories and orga-
nization charts were often out of date. Formalized communications do
not exist between the policy planning staff and areas, agencies, and
tribes.

A definitive organization structure and decisionmaking process does
not exist. Although the present organization contains stated budget
functions, in some instances, the budget formulation and control func-
tions at the area level are organizationally separated. This type of
structure limits direct communication and fosters misunderstanding.

289

Eesponsibility for some programs is unclear because activities are
split.

Personal contacts among Bureau program management personnel
are inadequate and infrequent. The area offices operate as separate
entities which limit communications, particularly face to face, either
vertically or horizontally. This has led to isolation which makes gen-
eral policy implementation and organization unity difficult to achieve.

The Bureau's program is not sufficiently consistent and coordinated.
Objectives are developed and met as individual projects. Therefore,
results are not responsive to the objectives.

There is a notable absence of mangerial and organizational capacity
throughout BIA. Decisions are made on a day-to-day basis with little
long-range planning. Communication among the organizational levels
is poor as are agency-tribe relationships.

Budget

Project planning, as a management tool within BIA, does not en-
sure the timely completion of activities. Work plans are not considered
important and are not updated when schedules are missed. Timing is
confused because of inadequate feedback. Project planning is not con-
sidered a high priority at the agency level because experience has in-
dicated that generating plans for other than major projects is a waste
of time. The plan is either not included in the budget, reworked later,
or not adhered to because the available time and effort was directed
to some unplanned requirement.

New programs are not developed to meet the needs and desires of
the tribal governments. Obsolete programs are continued; duplication
of effort is required to "guard the integrity of programs for account-
ability ;" tribal development plans are not used as a basis for Bureau
planning and budgeting.

Limited communication between the agency and the tribe causes
more than half of the budget to be determined without local needs
analysis. Because budget-planning information flows under the as-
sumption that each level understand it, the resulting action at lower
levels are different than intended.

The present budget system only measures the funds spent against
the amount budgeted, without determining results. Thus, the effective-
ness of managers, organizations, and programs is not measured.

Tribal willingness to learn and understand the budget system exists,
but effective leadership in the BIA is deficient.

There is no guarantee that either agencies or tribes have appro-
priate administrative knowledge concerning area office funds. This
probably accounts for much of the antagonism between tribal govern-
ments and area offices.

BIA planning does not deal with the future beyond an 18-month
time span. This system prevents effective decisions regarding future
goals. Dollar availability of target planning allowances set by 0MB
does not adequately cover the financial requirements of individual
tribes.

The purpose of self-determination is "To provide maximum Indian
participation in the government and education of Indian people, to

270

provide for the full participation is a logical and laudable objective
but is not fully supported to improve relations between the Indian
community and the Government."

However, there is a larger issue in regard to client participation
which should be noted. Less than 30 percent of the Bureau's budget
is subject to any form of Indian participation. Hence, the extent of
present involvement cannot be interpreted as Indian determination of
Federal spending priorities. Under the present system, a tribe can
make tradeoffs within the BIA budget whicli accurately reflect rela-
tive priorities and yet receive a total package of goods and services
which do not meet those priorities due to insufficient influence on
decisions affecting them.

The band analysis concept as used by BIA is indicative of an
effort to obtain tribal viewpoints. However, many Indians today are
dissatisfied with it. Some current issues and problems are :

The budget is set by 0MB prior to tribal consultation and
decision.

In developing some tribal programs, BIA planning activities
are aligned to a budget process, Avhich furnishes projections for
periods of approximately 18 months. However, extensions of pro-
gram plans beyond the upcoming fiscal year are not included in
the formal budget system.

Tribal leaders are uninformed regarding budget concepts and
their ability to make changes.

Participants are given sketchy information (typically, a single
base year dollar figure for a particular progam without a detailed
breakdown).

Tribal participants have only a short time to make their deci-
sions. A typical time span is 48 hours from initial presentation of
information to final decision.

Band programs are determined by BIA and change from year
to year. Reasons for banding are not explained to tribal leaders.
The current BIA budget is submitted to higher review levels without
indicating the banded needs of an agency or tribe. The Bureau's
budget is a combination of banded priorities and nonbanded central
and area office programs. Justifications relate to programs but do not
analyze agency or tribal input. Tribal needs and budget data visibility
are stopped at the Bureau level through consolidation by program.

For example, in three United States Government reports, the
Bureau'sbndget is deficient in agencv oi- h'ibal input. The BIA budget
justification contains only descriptive Bureau program costs narra-
tives. The Federal budget summarizes programs by functional break-
downs. Its appendix details information by program activity and
extends the analysis to include a budget presentation by object account
classification.

Personnel

Almost every area of personnel management in the Bureau is in-
adequate.

Comprehensive studies on BIA staffing levels are not performed,
resulting in either over- or under-staffing. In addition, personnel re-
ductions do not follow a logical selection process. Observations on man-
power utilization at sample BIA offices indicate that output is very

271

low. However, effective manpower utilization does not appear to be of
prime importance since defined quality/quantity output standards are
nonexistent. Personnel ceilings are set arbitarily by 0MB with no
input from area, agency and tribal management. These ceilings are
often circumvented by an excessive use of temporary employees.

The present emphasis on training is general in nature, narrow in
scope, and unrelated to employee's jobs. As a result, many underde-
veloped and underutilized employees operate marginally and mis-
handle their assignments. Bureau training activities need improve-
ment at all levels, especially for management intern programs for
Indians which haA-e been practically nonexistent.

Indian preference has a profound effect on BIA personnel man-
agement. Congress intended that "the Indian service shall gradually
become a service predominantly in the hands of educated, competent
Indians.'' However, no one in 1934 realized just how gradual tliis
process would be. Even now, 42 years later, many positions are vir-
tually impossible to fill. Many non-Indiaus either leave BIA or are
minimally motivated to perform because of Indian competition. The
failure of Bureau personnel to understand Indian preference has led
to inconsistent administration of the policy at all levels. The result is
a significant reduction in BIA effectiveness. Internal mobility and
flexibility also suffer because, in many instances, non-Indians cannot
be transferred to new positions.

Employment classification is in a chaotic state. As a result, some
classification authority has been reclaimed by the BIA central office.
However, consistent job classification or reclassification policies are
still nonexistent. Job categories are being altered to fit the applicant —
being downgraded when a competent candidate is unavailable and
raised when an administrator wants to provide a reward without jus-
tification. Administrative pressure challenges the integrity of tlie
classification process. Because of a shortage of qualified classifiers
and an exodus of those available to other Government agencies, clas-
sification actions are a long, time-consuming process.

BIA labor relations practices are also poor, both from the human-
istic and managerial point of view. Management is often ''auto-
cractic*' or "dictatorial." Employee inj^ut is not solicited and, if vol-
untered, remains unanswered. BIA managers and supervisors admit
ignorance of employee relations practices. High personnel turnover
often results, particularly in critical areas. This type of management
leads to unionization, third-party intervention and inflexibilit}' in
personnel assignments.

Management Information

The current data processing function is incapable of providing the
spectrum of data and reports needed by managers on a timely basis.
In addition, man}^ reports are inaccurate, making it necessary for
agency personnel to maintain their own accounts. xVlthough 35 dif-
ferent standards and/or procedures manuals are available or near
completion, they are primarily for handling hardAvare and software
at the division's data center. Consequently, a complete catalog of
data and special reports material is unavailable. Personnel skills as
well as various application systems are becoming obsolete.

272

A study on the replacement of obsolete hardware and addition of
improved service and data handling capabilities is in progress. In
addition, an interim equipment improvement proposal is being
pursued.

This study on the replacement of obsolete hardware is now con-
sidered complete by the Division responsible for its implementation.
However, the AIPRC has talked with Bureau central office, area,
agency and especially tribal government stafT regarding the proposal
and have found the proposal was not developed by a comprehensive
needs analysis. They feel the proposed project would not meet their
needs, eliminate obsolete or duplicate reports, but would in fact add
to their problems.

Communication of information is so slow that programs and em-
ployee morale sulfer. Agency and tribal managers lack sufficient de-
cision-related data and their requests for this pertinent information
go unanswered. Information flow is slowed by various coordinators
and liaison personnel who constitute bottlenecks to desired communi-
cation patterns especially at the area director level and data center.

No capacity exists for meeting special field requests or providing
direct access from remote locations. Since manuals documenting ca-
pabilities and reports are inadequate, both system input and output
aro extremely poor.

Reports are not organized to provide information on an exception
basis. Therefore, users must dig through piles of paper to locate
problems. Because report accuracy is poor, they are not used. Agency
and tribal managers maintain ""cuff accounts'' for reconciling and
controlling activities. Inaccuracies are caused by insufficient knowl-
edge on data input and submission.

Due to inadequate and unreliable measurement information, man-
agers can do little to control people or programs. Data are used pri-
marily for employee records and to provide reports requested by
area or central offices. The information available simply documents
past history for compilation into composite status reports.

This type of information cannot be used effectively to evaluate,
manage and motivate people, make decisions or measure program
quality. Even simple comparisons are not available for management
control purposes. Insufficient standards and measurements are prime
reasons for line manager, program and employee control problems.

There are no available data to provide the basis for an alternate
course of action because of changing circumstances in the future. Thus,
agency offices must exist on a day-to-day basis reacting to problems
and situations as they arise. As a result, ongoing programs get farther
behind and are inadequately implemented.

Both equipment and materials inventory systems are ineffective and
wasteful. They are not completely automated because the division
lacks the necessary capacity. Also, standards for controlling inven-
tories and servicing equipment do not exist. Equipment listings are
incomplete, causing supplies to disappear without sufficient documen-
tation. Only a fcAv of the 17 division reports sent to the agencies and
tribes are useful due to insufficient understanding or inapplicability
of the information in the reports. Although some manuals are avail-
able, they do not explain report interpretations effectively.

273

Area, agency, and tribal offices are starting to acquire data process-
ing equipment because of inadequate service from the division. Recent
data processing studies indicate the major problems are lack of needs
analysis at agency and tribal levels, insufficient hardware capability
and a shortage of qualified people.

Recommendations Based on the BIA Management Study

Estimated benefits from implementation of the following recom-
mendations could amount to $123,072,000 annually and a one-time
savings of $20,830,000. These benefits would accrue to the Indian tribes
for programs and development in Indian country. Streamlining man-
agement organization and efficiency of the Bureau of Indian Affairs
is a logical first step toward better administration of Indian polic3\
The second step is discussed in section IV of this chapter. The BIA
management recommendations Vvliich follow here, should apply to
the new Indian agency mentioned there as well.

A digest of recommendations follows.

DIGEST OF RECOIVIMENDATIONSi

Action Estimated

Recommendations required Financial impact amount

BUDGET PROCESS

1. Establish a formal planning system v/ithin BIA and inte- Executive

grate it into the nresent budget process.

2. Reorganize budgeting, planning and intergovernmental do -

relations into 1 integrated orRanization.

3. Stimulate Indian participation in the budget process do

4. Include all nonbanded area programs e):cept t;ust funds do 1-timecost $50,000

in the agency budget formation process by fiscal 1979.

5. Make the budget function responsible for variance do

analyses and per'armance reviews.

6. Emphasize Indian participation and band analysis in the do

BIA budget review to the department, OWIB, President
and Congress.

7. Establish annual project planning at area and agency do Annual saving 250,000

levels for all continuing programs and monitor perform-
ance quarterly on a personal basis, altering the plan
to reflect status changes.

PERSONNEL MANAGEMENT

8. Strengthen Indian preference to improve BIA effective- do

ness while continuing to hire, train and upgrade Indians
for bureau employment.

9. Develop a human resources planning system using indus- do Annual saving.. 75, 000, 000

trial engineering techniques to establish appropriate 1-timecost 430,000

staffing levels and position requirements.

10. Develop an aggressive recruiting program to secure do Annual cost 150,000

qualified or trainable Indians. 1-timecost... 50,000

11. Reorganize the employment classification system to do

improve credibility.

12. Improve BIA employee relations practices ...do 1-time cost 100,000

13. Develop training programs to meet specific BIA require- do Annual cost 80,000

ments. 1-timecost... 20,0000

14. Continue regular civil service evaluations and upgrade do Annual cost 42,000

personnel-management quality through Department of
the Interior project manager appointments.

MANAGEMENT INFORMATION

15. Establish and install performance measurement standards do Annual saving 15, 000. 000

16. Initiate a program to improve and facilitate general com- do _

munications between central office and field super-
visors.

17. Develop a concise statement on critical issues do

18. Improve the management by objectives programs.^ do --

19. Expedite the automatic data processing modernization do Annual cost avoidance... 10,000,000

study to insure completion by Jan. 1, 1977.2

Seo footnotes at end of table.

274

DIGEST OF RECOMMENDATIONS'— Continued

Recommendations

Action
required

Financial impact

Estimated
amount

20. Complete apolication analysis section of the moderniza- do

tion study by Oct. 1, 1976.-'

21. Add remote-access and interactive capabilities to reduce do -

processing time and increase computer program devel-
opment ettlciency.

22. Develop an mventory system for a comprehensive man- do Annual saving

agement system.

23. Develop standardized material and supply inventory do do 5,000,000

systems. 1-time saving 20,000,000

6, eOO, 000

Total 132,952,000

' Bureau of Indian Affairs Management Study, American Indian Policy Review Commission, pp. 45-46.
2 Commission recommends a reevaluation of these 2 proposals by the Secretary.

Senator James Abourezk, Chairman of the Indian Affairs Com-
mittee of the Senate, has stated that the savings would be transferred
to Indian tribal programs at the local level. A more efficient BIA
administration could provide the badly needed program dollars for
Indian economic recovery. Tribes need funds for land acquisition, con-
solidation, natural resource development, and a new source of flexible
budget coupled with increased sophistication in tribal planning and
management capacities necessary to establish a viable economic
climate.

Indian administration can be vastly improved by a commitment by
Congress and the executive branch to a process of improving the
delivery of money and access to technical assistance. Badly needed
budgetary flexibility can be obtained by eliminating the waste tliat
has built up over the years.

275

PRESIDENTIAL LEVEL

ma;iagehe»t improvement
i implementation review office

DEPUTY ASSISTANT
SECRETARY
OPERATIONS

OFFICE OF THE

PRESIDENT

DEPARTMENT OF
THE INTERIOR

BUREAU OF
INDIAN AFFAIRS

DEPUTY ASSISTANT

SECRETARY

POLICY DEVELOPMENT

AND ANALYSIS

SECRETARIAL LEVEL
SECRETARY OF THE"!
INTERIOR I

BUREAU LEVEL
[ASSISTANT SECRETARY
FOR INDIAN AFFAIRS

DEPUTY ASSISTANT

SECRETARY

ADMINISTRATION

GES'EPJVL COU-ISEL

• Rights Protection
» TRUST PROTECVION

• Legal Advice

DEPUTY ASSISTANT
Secretary
OPERATIOM?

• Hum

an Resourc

• Nat

ural Resoi.

rces

• Tri

bal Goverr

nort

Dev

elopment

-Area Service Centers

ASSISTANT SECRETARY
FOR INDIAN AFFAIRS

LOCAL SERVICE
CENTERS

• Tribal Government
and /or

• Local Agency
Superintendent

DEPUTY ASSISTA!JT

SECRETARY
POLICY DEVELOPMENT
AND ANALYSIS

• Policy DevelopmenttAnalvsis

• Intergovernmenta l Relations '

• Audit and Review

• ConjressionaltLeaislative

• Public Af fairsslnformation

DEPUTY ASSISTANT
Secretary

ADMINISTRATION

• Planning and Budgeting

• Financial Management

• Personnel

• Contracts/Grants

• Support Services

PROPOSED ORGANIZATION CHART
FOR BUREAU OF INDIA!! AFFAIRS

276

UNSOLVED PROBLEMS IN THE BUREAU OF INDIAN AFFAIRS

Indian Preference in Employment : a Preference for Self-government

The notion of exempting certain Federal agencies and offices from
civil service requirements and staffing them pursuant to a tailored
personnel system is hardly unique in the U.S. Government. Frequently,
Congress has recognized that the specialized needs and functions of
an agency render it unsuitable for application of civil service hiring
and promotion requirements. This has resulted in 42 Federal agencies
or offices being fully or partially exempted from the employment
restrictions of the Civil Service Commission. The Department of De-
fense alone has 301,000 noncivil service positions, and the Veterans
Administration has over 34,000. Some Federal agencies have estab-
lished entirely independent personnel systems to meet the unique needs
of their mission or staffing requirements. This includes agencies such
as the Energy Research and Development Administration, the Ten-
nessee Valley Authority, the U.S. Postal Service, and others.

The reason most often given for authorizing these independent per-
sonnel systems is the flexibility they allow in recruiting, selecting,
hiring, and promoting individuals "with specialized skills uniquely
valuable to the agency.^^

The reasons for exempting these agencies fipply equally as well to
the present Bureau of Indian Affairs and to tlie proposed new Depart-
ment of Indian Affairs. Furthermore, the Federal trust responsibility
to American Indians and more than 140 years of Federal statutory law
mandate a separate service in the Indian Service.**

But despite these factors, a separate Indian Career Service has never
truly been considered by the executive branch. There is no firm man-
agement policy on Indian preference ; *- management support for the
concept is inconsistent; and when Indian preference is followed in
hiring practices, it is usually confined to the lower-level, nonmanage-
ment positions. Thus, the percentage of Indian employees has remained
virtually the same (57 percent) since 1951, and 65 percent of the
Indian employees are GS-7 or below.*^

At the present time, there are at least seven Federal statutes dating
back as far as 1834 which provide for Federal employment preference
for Indians within the Indian Service.** The purpose of these statutes,
as variously expressed in the legislative histories, was "to give Indians
a greater participation in their own self-government; to further the
government's trust obligation toward the Indian tribes; and to reduce
the negative effect of having non-Indians administer matters that af-
fect Indian tribal life." *^

The Indian employment preference statute principally relied upon
today is section 12 of the Indian Reorganization xVct of 1934 (IRA).*®
which was designed to correct the inadequacies of several earlier pref-

*i jS'ee Indian preference exhibits, final report of Task Force Xine. volume II.

*^ For a tliorough explanation of all agencies with respect to the civil service system,
see: U.S. Senate, Committee on Post Office and Civil Service. Statutory Exceptions to the
Competitive Service, 93d Cong., 1st sess. 1973.

« Ibid.

«2i5 U.S.C. sec. 45 (1070) : 25 U.S.C. sec. 46 (1970) : 2.5 U.S.C. sec. 348 (1970) : 25
U.S.C, sec. 44 (1970) ; 25 U.S.C, sec 274 (1970) ; 25 U.S.C, sec. 47 (1970) ; 25 U.S.C,
sec. 472 (1970).

« Morton v. Mancari, 417 U.S. 515, 541, 542, (1974) (footnotes omitted).

<« 25 U.S.C. sec. 461 et seq. (1970).

277

erence laws. The Congress realized that the Civil Service laws and a
lack of technical training were the main stumbling blocks to getting
Indians into their own Service. Under the pre-IRA laws, Indians were
forced to compete with non-Indians under Civil Service standards
while at the same time the Indians were denied or did not have access
to education and training and were accorded no merit for the life
knowledge and skill obtained outside the standards of formal
education.

Section 12 of the lEA sought to correct this situation by providing :

The Secretary of the Interior is directed to establish standards of health, age,
character, experience, knowledge, and ability for Indians who may be appointed,
without regard to civil service laics, to the various positions maintained, now or
hereafter, by the Indian Office, in the administration of functions or services
affecting any Indian tribe. Such qualified Indians shall hereafter have the prefer-
ence to appointment to vacancies in any such positions. [Emphasis added.] "

The IRA thus clearly intended to make the civil service laws inap-
plicable in the appointment of Indians to the Indian Service and to
provide for creation of a special persomiel system designed to insure
that Indians themselves administer government Indian affairs activi-
ties. To assist in implementing this plan, section 11 of the IRA also
provided that adequate training and recruitment of Indians be pro-
vided.*^ As Representative Howard, the sponsor of the IRA in the
House, stated to the Congress in 1934 :

Section 13 directs the Secretary of the Interior to establish the neces.sary
standards of health, age, character, experience, knowledge and ability for Indian
eligibles and to appoint them without regard to civil service laws ; and it gives
to such Indians a preference right to any future vacancy. This provision in no
wise signifies a disregard of the true merit system but it adapts the merit .system
to Indian temperament, training and capacity. Provision for vocational training
and higher education will permit the building of an entirely competent Indian
personnel.**

Senator "Wheeler, chairman of the Senate Committee on Indian
Affairs and sponsor of the IRA in the Senate, stated in 1934 wh}^ such
a unique career system for Indians in the Indian Service is justifiable :

It (the Indian Service) is an entirely different service from anything else in
the United States, because these Indians own this property. It belongs to them.
What the policy of this government is and what it should be is to teach these
Indians to manage their own property and the civil service has worked very
poorly so far as the Indian Service is concerned * * *.^'

In a recent case, the U.S. Supreme Court lent further justification
for Indian employment preference by stating that :

The preference is similar in kind to the constitutional requirement that a
United States Senator, when elected, be "an inhabitant of that State for which
he shall be chose," Art. I, Sec. 3, cl. 3, or that a member of a city council reside
within the city governed by the council. Congress has sought only to enable the
BIA to draw more heavily from among the constituent groups in staffing its proj-
ects, all of which either directly or indirectly affect the lives of tribal Indians.
The preference, as applied, is granted to Indians not as a discrete racial group,
but, rather as members of quasisovereign tribal entities whose lives and activi-
ties are governed by the BIA in a unique fashion. Since there is no other group
of people favored in this manner, the legal status of the BIA is truly sui
generis." ^'■

i'2o U.S.C. sec. 472 (1970).

« 25 U.S.C. sec. 471 (1970).

« 78 Cong. Rec. 11731 (1934).

«>78 Cong. Rec. 11123-11125 (1934).

^^ Morton v. Mancari, 417 U.S. 535, 545 (1974).

278

Thus, the Congress in 1934 and the Supreme Court in 1974 both
viewed the Indian Service as unique and Indian employment prefer-
ence in the Service as a justified and logical step to further Federal
policy in Indian affairs.

In the course of a hundred years there have been at least seven
statutory attempts to provide for Indian preference in employment
within the Indian Service (BIA and IHS).^^ The present condition
of personnel administration within the Bureau of Indian Affairs and
Indian Health Service is an indication that Indians can expect no bet-
ter treatment in the near future without the intervention of Congress
or top direction from the executive branch.

The present conditions do not generally result in a sufficient supply
of good candidates for jobs, for Indians or non-Indians. A lack of
procedural and administrative leadership has left all employees to
struggle with the complex issues without the benefit of Bure'auwide
policy direction and laws that were meant to assist them.

A MANAGEMENT AND PUBLIC AWARENESS PROBLEM OF THE BUREAU

Hidden Regulations

The Bureau of Indian Affairs (BIA) regulates and controls its
relations with the service population, primary and subsidiary offices
(central, area, etc.), other agencies, and individuals and entities in
both the public and private sectors largely through the BIA manual.
Thus, the quality, accuracy, and efficient maintenance of the manual
system becomes essential if the Bureau is to fulfill its responsibilities.

This manual system consists of some 42 titles and 52 supplements.
Printed in looseleaf binder form, the manuals fill a 10-foot long book-
shelf. Of these 42 titles, approximately 17 relate to internal agency ad-
ministrative matters. The remaining 25 involve subject areas which
regulate and affect the rights of the Indian tribes and Indian people.

The BIA manual as it presently exists is a confusing, outdated,
antiquated, often contradictory, and generally inefficient compilation
of policy and procedure ranging from the old (80 BIAM) to the
absolutely unfathomable (82 BIAM). Portions of the manual sys-
tem ai'e in violation of the publication requirements of the Administra-
tive Procedure Act (APA), contrary to congressional intent, relevant
statutes, judicial decisions, or agency regulations, and in such a state
of disorganizatioM as to be of limited utility to agency personnel.

There are numerous regulatory provisions contained in the manual
which affect the substantive rights of Indians. In many cases, these
agency regulations have not been published for comment in the Fed-
eral Register and subsequently codified in the Code of Federal Regu-
lations (CFR) as required by the Administrative Procedures Act
(APA). The most flagrant example of this is 82 lAM, containing
some 200-300 pages of eligibility criteria and guidelines regarding the
Bureau's Employment Assistance Program. Very little, if any, of this
title has been published. Abrogation of such procedures results in the
denial of benefits through illegal eligibility requirements and other
criteria being improperly imposed.

B2BIA Management Study, final report of Task Force Three (GAG. 1976), p. 103.

279

Mechanicall}' confusing, the manual contains both Indian Affairs
Manual and Bureau of Indian Affairs Manual volumes. The older
volume was to be totally replaced by new material over 2 years. Very
little replacement has in fact been accomplished. The proliferation
of old titles still in use further exemplifies the outdated condition of
the manual system. Xumerous references contain vague statements
advising that an appropriate part will be issued "later." Some of these
initial references are themselves over 6 years old.

As the primary tool for all BIA personnel to ascertain and apply
Bureau policy regarding such vital areas as delivery of services and
protection of land, timber, water, and mineral resources, it is im-
perative that the manual be made more responsive to the needs of
its users while at the same time effectivel}' accomplishing its purj^oses.

The manual system must be comprehensive, comprehensible, and
legally correct in order for it to be effectively utilized by agency per-
sonnel. Until this is accomplished, irreparable harm is being done to
Indian people.

In conclusion, a careful revision of the present service delivery sys-
tem of the Bureau of Indian Affairs nuist be undertaken. Such a
revision must encompass not only the perspective of Bureau em-
ployees as to the inadequacies in the delivery of services, but most
importantly, tribes must have the opportunity to express their A'iews
as to how the service delivery system can be revised to better meet
tribal needs. This revision plan is a necessary prerequisite to the
establishment of service delivery systems in a new independent Indian
agency. Such regulations should then be published in the Federal
Register to allow for comment bv interested persons.

PROBLEMS WITH THE BUREAU OF IXDIAX AFFAIRS BUDGET

One of the most important elements in any budget formulation
process is the relation of a budget to the total physical and financial
needs of the population to be served. Particularly, the Bureau of
Indian Affairs budget should be responsive to Indian planning and
program priorities at the local level. However, the organizational
structure of the Bureau separates the functions of the Financial Man-
agement staff responsible for budget formulation from the functions
of the Policy Planning staff responsible for planning. This separa-
tion of functions also exists in the area and agency offices, and thus
the coordination between budget and planning processes critical to
responding to tribal needs is lacking. As the BIA Management Study
points out.

Formalized communications do not exist between the Policy Planning iStaff
and areas, agencies and tribes. The relationship between the central office and
area PPE budget function is one of downward procedural information and up-
ward consolidation. The same basic budgeting relationship exists between the
area and the agency. However, communications between the agency and the
tribe occur during tlie budget planning phase but not during the budget moni-
toring phase."

In an attempt to align the budget with tribally established priorities,
the band analysis system of budget formulation was created in the

33 U.S. House of Representatives, 1977 appropriations hearings — Department of the
Interior, part 6, p. 708.

280

Bureau. The process supposedly allows tribes to indicate spending pref-
erences at varying levels of total funding derived from percentages of
the previous year's funding. However, upon closer scrutiny of banded
and nonbanded program outlays, it can be seen that more than half of
the budget is not determined by the band analysis. Since there are sev-
eral tribes under one agency, tribal conflicts are created. Tribes have no
input as to which Bureau programs are banded or nonbanded, thus
Bureau attempts to respond to tribally established funding priorities
are meaningless.

Indeed, the BIA budget formulation process is structured in such a way as to
he more responsive to the constraints of the budget processes and appropria-
tions procedures of the Department in which it is located, and QMB, rather
than the tribal needs it is legally mandated to serve."

A proposed budget formulation process for the Bureau of Indian
Affairs as part of a larger proposed Federal-Indian budget has been
a major endeavor of this Commission. The proposed budget process
provides for a total assessment of tribal needs and the development
of long range tribal plans to meet the needs identified. Upon com-
pletion of a needs assessment and development of a tribal plan, the
tribe would then enter into negotiations with the Bureau of Indian
Aifairs to determine those Bureau programs which would best re-
spond to tribally specified needs and long-range plans. Following this,
the tribe would then proceed to identify those Federal domestic as-
sistance programs which target moneys and services to those areas of
need not addressed by available Bureau programs. Finally, a total
tribal budget would be submitted to Congress as a part of the total
Federal-Indian budget. Costs of Bureau of administration would be
entered separately, so that at all times, all parties to the budget
process would be able to identify the tribal budget as distinct from
the Bureau budsret. Bureau requests for appropriations would then
be based on the tribal needs.^^

The 1934 Indian Reorganization Act required that the Secretary of
the Interior advise the tribes of the amount of money requested for
their benefit. This provision has never been properly carriecl out. Also,
the 1934 Act contemplated that should the tribal council disagree with
the Secretarial submissions, the differences should be made known to
the Congress. In the 1976 oversight hearings of the House Appropria-
tions Subcommittee, Chairman Yates advised ^'^ the Bureau of Indian
Affairs that "Our Committee considered itself to be as important as
0MB and the Department of the Interior in being advised of the
amount of money necessary to carry on BIA's program adequately."
Out of this hearing, the cormnittee authorized an investigation, which
was highly critical of the Bureau of Indian Affairs administration of
its educational facilities. This report is dated December 1976 and
states :

In the opinion of the Investigative Staff, the Indian Self-determination Edu-
cation Assistance Act (Public Law 93-638) is one of the most important legis-
lative acts dealing with the Indian people. It is however, complex and compre-
hensive, and the achievement of the goals envisioned by Congress may require a

" Ibid.

" See ch. 8, for an expanded discussion.

B6 See final report of Task Force Six (AIPRC, GPO, 1976).

.281

greater understanding on the part of the BIA and Indian people and a great deal
of patience on the part of tribes in obtaining the full benefits intended.

Self-determination means that tribes are entitled to establish their own pri-
orities and goals without Federal domination. Under this Act, the Federal Gov-
ernment is committed to accept and support tribal government judgments based
on the needs and goals of their people. The Act seeks to establish a new direction
for Federal Indian people to direct their ovn^u de.^tinies. while at the same time
preserving their special rights and trustee status with the Federal Government.

The new (President Carter's) administrntion beffinninir in 1977 has
ex]oressed a preference for a zero-based bndafet, and this Commission
recommends the same to be^in at the tribal level. Most tribes have
loncf-ranofe plans that this predetermined nnnnal needs for funding:.
Such a system could be initiated rather quickly to meet le^al requir-
ments and the desires of Conaress to learn the truth of the actual
needs of Indian tribes and people.

COXTIXUIXG PROBLEMS AT "tiIE OTHEr" ISIAJOR INDIAIST SERVICE

Tlie Indian Health Service

The responsibility for Indian health was transferred from the Bu-
reau of Indian Affairs to the Department of Health, Education, and
Welfare in IDoo. At that time, the Indian Health Service was created
under Public Health Service and the Health Services Administration
of that Department, and was designed to provide health care services
to Indian people in areas where there were no existino; health care
facilities. The main advantage seen in such a transfer was the avail-
ability of doctors servino; in the Public Health Service in lieu of the
2 year military obligation resulting from draft deferments for medi-
cal training. Almost immediate! v, health care services to Indian peo-
ple improved as tlie Indian Health Ser^ace budget was increased and
medical personnel were assigned to Indian Health Service installa-
tions. Still, there was an overwhelming backlog of Indian people need-
ing health care ser^-ices, and environmental conditions on many
reservations continued disease-breeding at astonishing rates. Today,
even though significant improvements in Indian health have been wit-
nessed. Indian Health Service officials estimate that if no new cases
were undertaken by IHS, it would take approximately 50 years to
treat the backlog of Indian people needing medical treatment. Indian
Health Service seeks to respond to this need by providing funds for
contract health care from other health care professionals and hospital
facilities. Gradually, the role of Indian Health Service has evolved
to become that of a health care provider of last resort. Funding and
staffing of health care facilities are severely below national standards
and recommended doctor-patient ratios. Tlius, Indian Health Sen'ice
must ask that Indian people exhaust all other possible sources of
health care services before turning to Indian Health Service for treat-
ment. As a general rule, however, other health care providers are not
aware of the evolving role of IHS, and as a result, refuse treatment
to Indian people on the grounds that provision of health care services
to Indian people is the sole responsibility of the Indian Health Serv-
ice. Thus, the delivery of health care services to Indian people is at
best fragmented, and lacks a formalized system for assuring that the
health needs of Indian people will be met.

92-183—77 19

282
a. Organizational Structure

The delivery sj-stem of health care services in the Indian Health
Service consists of a central office in Eockville, INId., 4 program
offices, 8 area offices, and 88 service units. The central office is re-
sponsible for setting IHS policy, the program offices conduct research
and development, the area offices provide technical assistance and pro-
gram evaluation, while the service units are responsible for providing
direct medical care and locating other health providers for contract
health care. The delivery system is plagued by problems of poor man-
aoement, lack of leadership, poor communication between area offices
and service units, and a lack of policy guidance."

The quality and variety of health care that a service unit can
render is severely restricted by the service unit budget, which has
always been significantly inadequate to respond to the health care needs
of Indian people it is supposed to serve. Management of the service
unit is the responsibility of a physician who spends his first year in
IHS with a full clinical caseload, and his second year managing the
service unit. Many physicians express their dissatisfaction with this
arrangement — many feel that they do not have sufficient background
in administration to enable them to be effective service unit man-
agers.^^ Second, depending upon the backlog of cases, some phy-
sicians must maintain their full clinical caseload as well as assuming
the responsibility for service unit management. Often, this situation
precludes evaluation of total health needs and the establishment of
treatment priorities. Inadequate staffing and insufficient funding re-
quire that emergency treatment receive first priority, and in most
cases, that preventative treatment be abandoned.

A recent development in the organizational structure of the Indian
Health Service has been a change in the role of the area offices which
now serve as technical assistance facilities for the service unit. Resist-
ance to this reorganization is evidenced by the lack of cooperation
between service units, and area offices. Communication and assistance
generally is a function of personal relationships rather than IHS
policy facilitating the flow of information. Service unit personnel
view the area offices as just another layer of bureaucracy which ob-
structs communication and accessibility to central office decision-
making.^^

The service delivery system of Indian Health Service needs major
improvement in management procedures, communication among the
various elements of the service delivery system, and overall policy
guidance coupled with adequate funding in order to realize the goal
of bringing the health status of Indian people up to parity with that of
the general population.

b. Indian Health Service Budget

The most severe problem faced by Indians in seeking to obtain medi-
cal treatment is a result of the budget formulation process of Indian

^" The accounting system of the Indian Health Service is structured in such a way as to
preclude any trackins of the actual percentage of a dollar reaching the service unit level,
or more importantly, precludes the identification of that portion of each dollar that actually
goes to trentnient.

"8 Task Force Six, Health Task Force final report to American Indian Policy Review
Commission, July, 1976.

s» Ibid.

283

Health Service. IHS receives a fixed allocation each year, a percentage
of the departmentwide budget appropriated to the Department of
Health, Education, and "Welfare. This allocation bears little relation
to the needs witnessed at the service unit level or those identified by
Indian people. Yearlj' allocations are whittled away by central office
administrative costs and area office administrative costs, with the re-
sult that only a small portion of the dollar allocated gets down to the
service unit level.*^" Even then, a service unit may receive a portion of
the funds allocated to it in the form of X-ray machines or other equip-
ment which it may not need, while critical needs for increased staffing
go unmet. Jkloreover, the funds remaining after the central and area
offices have extracted their administrative costs, drastically reduce the
quality and variety of health care a service unit can provide. Often,
because of financial constraints a service unit is unable to provide any-
thing other than emergency treatment. Health maintenance and disease
prevention are nonexistent in service units with such budget con-
straints. The service unit must continually redefine the population
eligible for IHS services given scarce resources that preclude the
provision of health care services to those with the greatest need. The
result is that Indian people are denied service by their own health serv-
ice, only to be sent "down the road" to be refused services from dis-
criminatory health care providers.

In order to adequately respond to the health care needs of Indian
people, the budget formulation process of the Indian Health Ser\dce
must be revised in accordance with the principles outlined in the pro-
posed Federal-Indian budget. ^^ Such a process would entail Indian
identification of the total health needs of each Indian community (res-
ervation and urban) and development of a long-range plan to meet
those needs. The result of the total liealth needs analysis and long-
range plan would then be submitted to the service unit, whereupon
service unit personnel would work witli tribal representatives to create
a service unit budget based on tribally identified health needs. The
budget would specif^" program costs, treatment costs, equipment costs,
central and area office operating expenses separately, so that at all
times, all parties to the budget formulation process could identify
Indian Health needs assessment data as distinct from IHS admin-
istrative costs. The Indian Health Service budget requests would then
be based on the health needs of the Indian community which it is
mandated to serve.

The statistics on lack of health care gathered to justify passage of
Indian Health Care Improvement Act (Public Law 94-4-37) indicate
the ratio of professional health care employees to Indian population
is much lower than the U.S. as a whole. ^' The low percentage of facili-
ties qualifying for accreditation by normal health standards and the
particular conditions of comparison on any element actually reflects
admission of inadequate conditions being clearly expressed to Con-
gress. Public Law 94-437 requires funds appropriate to accelerate
health care to Indians must be over and above that appropriated for

w The acconntine system of IHS Is strncturecl In such a way as to preclude nny trackinj?
of the actual percentage of a dollar reachlnsr the service unit lerel, or more importantly,
precludes the Identification of that portion of each dollar that goes for treatment.

'^ Spc actii^n on a separate department In this chapter.

«2 Indian Health Care Improvement Act — House of Representatives Report 94-1026,
part 1, Apr. 9, 1976.

284

each year's "normal operational requirements budget." It is therefore
questionable that any funds could be used unless the regular appropria-
tions bring the low percentage ratios up to par on a national level. If
IHS does not bring the ratio of professional employees up to U.S.
standards, the intent of 437 will not be achieved.

Indirect information by the evidence indicates that funds appro-
priated to IHS for the Indian Self-Determination and Education
Assistance Act (Public Law 93-638 purposes transferring administra-
tive responsibility to tribes) is actually being used for employee pay
raises. This is supported by the Indian Health Service indications that
they would be able to absorb the pay raises in the current appropria-
tion amounts. This raises the question of whether the Executive leader-
ship is even interested in correcting the deficiencies for which the
health legislation was passed.

A management study of Indian Health Service is necessary and the
indications are that Indian Health Service should be withdrawn from
the Department of Health, Education, and Welfare and join other
Indian activities in a new department or agency for major Indian
affairs activities as a part of the trust responsibility.

A Progrx\m for the Future of Indiax Administeatiox

COXSOLUDATION OF INDIAN PROGRAMS IX OXE DEPARTMENT

Since the founding of this Nation, there have been proposals ad-
vanced for the development of a separate department or independent
agency. Indeed, original plans were advanced in colonial times for
the establishment of not only a separate department, but even a 14th
State.

Since the transfer of the Bureau of Indian Affairs from the War
Department to the Department of the Interior, the question has been
raised: "Where should the Bureau of Indian Affairs be located?"
Another question often asked is: "How should it be organized?" Re-
sponses have ranged from the 19th century urging to return it to the
direction of the War Department, the recommendation that
"* * * Indian affairs be committed to an independent bureau or de-
jDartment" ®' and the 20th century recommendations that it should be
"abolished" or later transferred to the Department of the Interior.
As changes in the structure and location of the Bureau of Indian
Affairs were considered during the early part of this century, Indian
tribes repeatedly asserted their rights to consultation prior to any
administrative or legislative modifications.

Apart from the Board of Indian Commissioners, the first major
influence that tribal governments had on Bureau structure came dur-
ing congressional hearings on the administration-proposed Indian
Reorganization Act.®* Indian efforts to influence structure continued
sporadically through the remainder of the 1940's and into the next
decade. But, not until 1961 through the American Indian Chicago

8= Report of Commissioner of Indian Affairs, 1S6S. p. 4S. The Please Commission
appointed by Act of July 20, 1867, 15 Stat. 17, made their recommendation to tlie Com-
missioner on November 18, 1868, but in a supplementary report (Oct 9 1S'»S) ursred
transfer to the War Department. ' "

«* Act of July 15, 1870, see. 3, 16 Stat. 355. See: Schmeckebier pp 26-27

285

conference did Indians establish a comprehensive position on the
character and structure of Federal Indian administration.^^ The threat
of termination had the ironic effect of binding tribes together. Indian
resolve was mirrored in the remarkable document produced by that
conference : "The Declaration of Indian Purpose." ^'^ The Declaration
began :

We believe in the inherent right of all people to retain spiritual and cultural
values, and that the free exercise of these values is necessary to the normal
development of any people.*'

Wide ranging proposals and recommendations were offered for a major
overhaul of Federal Indian affairs administration and policy.

AAHiile the conference urged that area offices be abolished and that
local agencies be given "broader exercise of responsibility and author-
ity to act" as had their predecessors, the Declaration of Indian Purpose
urged that certain principles guide the structuring of the Bureau of
Indian affairs. The conference declared :

That basic principle involves the desire on the part of Indians to participate
in developing their own programs with help and guidance as needed and re-
quested, from a local decentralized technical and admiustrative staff, preferably
located conveniently to the people it serves. * * * The Indians as responsible
individual citizens, as responsible tribal representatives, and as responsible tribal
councils, want to participate, want to contribute to their own personal and tribal
improvements and want to cooperate with their government on how best to resolve
the many problems in a businesslike, eflQcient, and economical manner as rapidly
as possible.

In the ensuing years and right up to this date Indian tribes and
people have repeatedly requested that their special status be recognized
and institutionalized in the form of a separate Indian Department or
independent agency. The National Congress of American Indians, the
National Tribal Chairmen's Association, the Affiliated Tribes of the
Northwest Indians and other intertribal groups have all adopted
resolutions requesting a separate department or agency.

By 1974, the National Congress of American Indians unanimously
endorsed a position paper and "Proposal for Readjustment of Indian
Affairs" ^^ which recommended "the establishment of independent
Federal governmental machinery to replace the Bureau of Indian
Afi'airs". Contained in the "American Indian Declaration of Sover-
eignty" which is attached to the NCAI proposal in this urging :

Establish a single, independent, federal governmental instrumentality with
concurrence of the majority of the recognized aboriginal American Indian tribes
and nations, in order to implement and guarantee the treaty responsibilities and
trust obligations of the United States of America under Article Six of the Con-
stitution of said nation.^*

The National Tribal Chairmen's Association took a similar position
in support of a separate Indian agency in the summer of 1975.'^°

Since these formal organizational statements were publicly an-
nounced. Indian tribes and other orcfanizations have announced their

« Fifty-eight tribes representing 146.194 persons snpportincr the bill -while 13 tribes
rejiresentinfr 15.21.''> persons requesting more time for considerfition or opposing it.

6" American Indian Chicago Conference, Declaration of Indian Purpose, June 10-13, 1961
(Appendix D).

«■ Ibid., p. 45.

'•■'NCAI Convention. San Diego, Calif., Oct. 24. 1974.

""Ibid.. "American Indian Declaration of Sovereignty," part C.

'" San Antonio News, September 1975.

286

support for various forms of a new structure of the BIA as a separate
agency. Common among these various proposals is the separation of
Indian affairs from the Department of the Interior. Similary, support
for separation has been conditioned on full participation of Indian
nations and tribes in the planning and development of the new agency.
In testimony presented to the American Indian Policy Review
Commission on behalf of the Creek Nation, the following was
recommended :

* * * Indian affairs are not solely a judicial nor a legislative duty of the
government, nor are they an exclusively Executive duty. On the other hand,
Indian affairs are constituted by governmental duties which are simultaneously
quasi-executive, quasi-legislative, and quasi-judicial. There is only one form of
governmental organization of powers which embodies these three types of power
simultaneously : independent commissions and agencies. * * *

Therefore, I strongly recommend that Indian affairs be assigned to an in-
dependent commissions. Only this assignment of Federal power will alleviate
the present confusion of Indian affairs with the Executive Branch.'^

What may have been a negotiated political consideration prior and
following the Eevolution has become a desirable administrative and
program alternative in the last 17 years. It is also motivated by Indian
tribes desiring less Federal administration and a more direct method
of receiving appropriations for tribal projects as well as a wish for
relief from a compounded and fractionated conflict of interest.

Federal funds could be consolidated and provided more directly
with a reduced administrative cost assessed by various Federal
agencies.

Some of the principal reasons for the establishment of a separate
department or independent agency are :

To reaffirm the separate and unique status by providing a
Department which can effectively administer the trust.
To improve the delivery ratio of funds to Indian tribes.
To coordinate various programs more effectively by delegating
that responsibility to one department.

To remove conflict of interest partially by consolidating the
authorities of the United States into one prime agent for the
trustee.
To provide a more direct access by Indian tribes.
To permit Indian tribes utilizing comprehensive planning to
participate in a budget system which encourages tribal participa-
tion and priorities.

To permit Congress and the executive branch to effectively
monitor and evaluate Indian administration and programs.

A SEPARATE DEPARTMENT

The best answer to many problems in Indian administration appears
to be to create a separate Indian department or agency with oversight
and jurisdiction and full legislative powers under a standing or
select committee on Indian affairs. This (the separate Indian Depart-
ment) would be accomplished by removing the Bureau of Indian
Affairs from the Department of the Interior and subsequently having

Ti Glenn Moore and Robert Trapp. Creek Nation, AIPRC hearing, May 8-9, 1976, Denver,
Colo.

287

that agency which would administer the majority of Federal program
dollars appropriated for Indians.

It should be emphasized that in transition the BIA would have to
be streamlined and the Secretary of the Interior would have to assume
the responsibility of planning the change. For the benefit of those who
are BIA enemies, it must be pointed out that there is no other way to
effectively transfer responsibilities to an independent Department or
agency without the Bureau of Indian Affairs providing the base and
core of the new "super" agency. The only other method to initiate the
administration of a separate agency would be to run a parallel De-
partment to the BIA which would duplicate administration. That does
not appear to be feasible and Congress would probably be disinclined
to duplicate appropriations for the same purpose.

The role of the Interior Department in the transition period prior
to the enactment of legislation creating such a department or agency
would be to prepare itself at the direction of the Secretary of the
Interior and proposed Assistant Secretary of Indian Affairs to ac-
complish administratively many of the actions necessary to make it
independent. Without regard to the establishment of a separate
Department a complete inhouse overhaul of Indian Affairs is badly
needed to provide an efficient delivery of budget and services as well
as to administratively remove departmental conflict of interest. For in-
stance, the Commissioner of Indian Affairs should be given Assistant
Secretary status and the Associate Solicitor of Indian Affairs should be
established as the General Counsel of the BIA.

The independent department or agency would be empowered to di-
rectly administer or coordinate all the activities and responsibilities of
the executive branch related to Indian tribes and their members. This
new department, in addition to coordination would be the principal
administrator of a tribal budget system which would be consolidated
in a manner which would advise Congress of the total needs, priorities,
planned projects and proposed budgets for all Federal prgorams — pro-
grams possilDly not administered by this department or agency would
still be affected by its budgetary requirements and priorities. The legis-
lation establishing this department or agency would contain certain
elements as follows :

a. Provisions for tribal and organizational freedom.

b. A legal department operating independently of the Justice
Department.

c. An Indian career service, independent of the civil service
organization.

d. A program and budgeting system possibly independent of the
Office of Management and Budget.

e. A decentralized program and budget development process,
eliminating the present three-tiered organization.

f . Provisions for assuring maximum local control.

g. Provisions for delivery funds, assistance and programs
directly.

h. A substantial decrease in administrative cost.

i. Additional program funds available for tribes.
A separate agency would consolidate programs from Federal de-
partments which are a part of a separately established Indian service
structure which exists because of the unique status of Indian tribes.

These programs were once almost solely within the Bureau of Indian
Affairs and the Department of the Interior, but since the separation of
Indian Health Service and establishment of the Office of Indian Edu-
cation in HEW, administration has become complicated if not
nonexistent.

The programs which might properly belong in a separate Indian
structure are listed by agency and department as follows:

Prime consideration
Agency or office Department

Bureau of Indian Affairs Interior.

Associate Solicitor for Indian Affairs Do.

Portions of Lauds Division .Justice.

Indian Healtli Service HEW.

Office of Indian Education Do.

Secondary consideration

Office of Native American Programs HEW.

Indian desk of economic development administration Commerce.

Indian desk Agriculture.

This is not a total list. The feasibility of which functions and offices
should be transferred and whether by legislation or Executive order
would have to be examined by the executive branch and Congress
jointly with the Secretary of the Interior in the lead role.

INTERIOR DEPARTMENT TRANSITION

Until such time as a new department or independent agency is
created, the Department of the Interior should consider administra-
tively accomplishing certain tasks directly under the supervision of
the Secretary or his delegate. AVliile a proposed Assistant Secretary-
should provide the leadership, the Interior Department should not
make the mistake of relying on the BIA to supervise its own manage-
ment reforms. The alternative proposed is as follows :

1. Institute changes necessary to carry out the recommenda-
tions of the BIA Management Review conducted by the AIPRC,
and endorsed in this report.

2. Administratively upgrade the Commissioner of Indian Af-
fairs to an Assistant Secretary for Indian Affairs within the
Department of the Interior.

3. Devise a BIA budget system which adequately expresses In-
dian needs and which provides for preparation of long-range
plans by the tribes. Such a systeui should be separately accounted
for within Interior Department by a delegate from the Office of
the Assistant Secretary in charge of Proirram Policy and Budget.

4. Administratively remove the Associate Solicitor's Office of
Indian Affairs from the Interior Solicitor's Office and create an
Office of the General Counsel in the Bureau of Indian Affairs.

5. Remove the three-tiered inanagement structure of the Bureau
of Indian Affairs by having its 90 agencies reporting and ne-
gotiating directly with tlie Washington, D.C.. office. The practice
of having 12 BIA area offices supervising and administering over
an average of 9 agency offices needs to be evaluated along with
their purposes and objectives.

289

6. Require the Bureau of Indian Affairs to prepare an annual
report "svliich will consist of a report on programs, appropriate
data, program evaluation results, and fiscal accounting reports.
This report should be made available to Congress, appropriate
levels of the executive branch, as well as the Indian tribes which
the BIA serves.

7. Consider the establishment of a model technical assistance and
administrative support facility in Denver, Colo., which would run
parallel to existing BIA area offices without interfering with the
daily operations of the field offices of the BIA. This office would
provide technical assistance, contract administration, and man-
agement support to tribes on a project basis. This model technical
assistance center could also serve as a test model for a multi-
agency service facility which could test the operational feasibility
and effectiveness of an independent department or independent
agency.

The personnel could be assigned from other agencies also working
on Indian reservations. Staff could also be assigned through the In-
tergovernmental Personnel Act and funding flexibility could be pro-
vided for by assigning this facility with the main field contracting
functions as well as the responsibility for the technical assistance and
training related to management and contracting. Grants and con-
tracts could be monitored and evaluated from this facility which is
ver\' accessible to "Indian Country."

BIA TRANSITION

The Bureau of Indian Affairs will play a "\cry important role in any
organizational changes in the Executive branch as well as Indian Af-
fairs' adjustments undertaken by the Secretary of the Interior within
the Department. The new Assistant Secretary will play a lead role
in assessing the feasibility and the degree of change necessary to de-
velop a plan for a separate department or independent agency.

"\Aliether the BIA is removed from the Interior Department or not,
it is still imperative that the Secretary of the Interior internally pro-
vide for tribal relief froin the Department's conflict of interest prob-
lems. Any study should have implementation provisions built into it,
thereby making a fundamental commitment to embark on a process of
changing the Bureau of Indian Affairs from a management to a serv-
ice agency. This commitment could spare Indian tribes the time and
expense of a TTth study of the Bureau of Indian Affairs in 27 years.

The Commission recommends a process which would involve the
President's Office, the Office of Management and Budget, and the Sec-
retary of the Interior. The Secretary should serve as the principal
coordinator in the executive branch.

It is, therefore, the sense of the Commission that the BIA can be
more effectively refonnecl for efficiency by a separate operational plan-
ning, implementation, and review unit which would work directly
betAveen the Secretary of the Interior and the Assistant Secretary of
Indian Affairs.

290

In summary, the transition recommendations to the Interior Depart-
ment would be based on three premises :

That the executive branch will seriously consider submitting a

plan for an independent agency or department of Indian affairs.

That an implementation of the management recommendations

for the Bureau of Indian Affairs is a necessary first step in a

process for a change.

That the Secretary of Interior consider the establishment of a
"Management Improvement Eeview Office" reporting to the Sec-
retary which would provide early assessments for future planning
as well as implementing badly needed improvements in the present
Bureau operations.
The following steps are recommended as an alternative approach
to a transition administration for the Bureau of Indian Affairs. All
studies conducted should initiate action and review.

1. Establish a Management Improvement Review Office
to plan, organize, and supervise the implementation of recommen-
dations to improve the Bureau of Indian Affairs, while guaran-
teeing the uninterrupted flow of essential services to the Indian
people.

2. The process of implementing recommendations should pro-
vide for tribal participation within BIA areas to assure resolution
of specific organizational and procedural problems identified by
Indian tribes, such activities implemented by a predetermined
schedule.

3. The plan must include a management information sj^stem
keyed to the needs of Indian tribes for their use in making local
policy and program decisions, as well as for providing an adequate
statistical data base for national objectives. The materials pro-
vided should allow common access to the Federal Government and
the Tribal Governments in order to promote deliberations on
equally beneficial terms.

4. The plan must include :

(a) A budget system which allows tribal programs and
priority needs to reach congressional committees in spite of
0MB restrictions or ceilings.

(b) A personnel system which provides for developing mis-
sion statements, position descriptions, qualifications, and a
recruitment program to encourage qualified Indians to apply.
This could be the first step of instituting a new "Indian Ca-
reer Service" discussed elsewhere in this report.

(c) An accounting system to provide a basis for analysis
between congressional appropriations and actual fund usage,
together with evaluations as to progress and accomplishments
toward established tribal goals.

(d) A system of publishing current tables of organization,
delegations of authorities, policy and procedural guidelines,
and a method of keeping tribes up to date an operational
rules and regulations involved in Bureau of Indian Affairs
administration.

291

5. Implementation of organizational changes, administrative
clianges, and certain procedural changes requires reevaluation of
central office activities, including the field extensions of the cen-
tral office; area office activities, including special multitribal
school and special office activities now under area offices; and
agency offices where serving multitribal activities. The latter to
determine the need for reducing multitribal agencies by increas-
ing single or dual agency offices to give greater emphasis on local
decision making powers at the tribal level.

6. The Management Improvement Review Office should
re^dew and cooperate with the executive branch in planning for
reorganization of the executive branch as proposed by the Presi-
dent, in order to have an opportunity to clarify the trust respon-
sibility and to prevent any intended or unintended diminishment
of trust relations between the Indian people and the Federal
Government.

7. The INIanagement Improvement Review Office should review and
cooperate with a Special Action Office of the President if and when
any work is done to establish a new department or separate agency
for Indian Affairs. See other section of this chapter regarding "A
separate department."

I 1

PRESIDENTIAL LEVEL |

OFFICE OF THE
PRESIDENT

SECRETARIAL LEVEL
rSECRETARY OF THE"|
L INTERIOR J

1
BUREAU LEVEL
TASSTSTANT SECRETARY]
[for INDIAN AFFAIRS J

•
^ 1 0MB

PRIVATE •^"p"^# IIIDIAN

INDUSTRY J 1 COMMUNITY

/ 1

DEPARTriF.NT OF
THE INTERIOR

/ 1

/ 1 f UNDER SECRETARY .

/ r \fOR INDIAN AFFAIRS

/ 1
/ 1

\ y_i\N'AGEMENT IMPROVEMENT

1 IMPLEMENTATION REVIEW OFFICE

BUREAU OF
INDIAN AFFAIRS

DEPUTY ASSISTANT DEPUTY ASSISTANT
SECRETARY SECRETARY
OPERATIONS POLICY DEVELOPMENT
AND ANALYSIS

•
DEPUTY ASSISTANT
SECRETARY
ADMINISTRATION

292

GENERAL COUNSEL

♦ TRUST PROTECTON

• Legal Advice

DEPUTY ASSISTANT
Secretary
OPERATIONS

• Human Res

• Natura

1 Resou

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• Tr

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Goi

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ASSISTANT SECRETARY
fOR INDIAN AFFAIRS

LOCAL SERVIC
CENTERS

♦ Tribal Government

and/or
# Local Agency

Superintendent

DEPUTY ASSISTANT

SECRETARY
POLICY DEVELOPMENT
AND ANALYSIS

Dev

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PROPOSED ORGANIZATION CHART
FOR BUREAU OF INDIAN AFFAIRS

REALIGNMENT SCHEDULE ACCOMPLISHED
NO LATER THAN JANUARY, 1978.

PROPOSED ORGANIZATION CHART
FOR BUREAU OF INDIAN AFFAIRS

293

THE CREATION OF SEPARATE INDIAN COMMITTEE IN CONGRESS

While the administration of Indian affairs in the Congress was not
directly considered when the Keview Commission was established,
the congressional process is an integral jDart of Indian affairs. It was
vital, therefore, that the Review Commission consider the issue of
congressional jurisdiction over Indian affairs.

From the early 1800's until 1946, the Senate and the House had
vested jurisdiction over Indian affairs through full standing commit-
tees. Under the Legislative Reorganization Act of 1946, the commit-
tees on Indian affairs were abolished and the legislative and oversight
jurisdiction over Indian matters was vested in the Committees on
Public Lands in the House and Senate prior to the termination era.
Since that time through the 94th Congress, these committees main-
tained a subcommittee on Indian Affairs. Although several major use-
ful pieces of legislation affecting Indians were enacted during the 30-
year intei-val, this subcommittee arrangement has failed to provide an
adequate forum for legislating appropriate solutions to problems af-
fecting Indian people.

In the 95th Congress, the Senate has, mider S.J. Res. 4, created a
temporaiy Select Committee on Indian Affairs. This is a step forward
in the Senate's approach to Indian affairs. However, in the 95th Con-
gress, the House of Representatives has taken a step backwards,
by merging the Subcommittee on Indian Affairs into a subcom-
mittee which also has jurisdiction over public lands. Under this ar-
rangement, the importance of Indian affairs will be further dimin-
ished. Furthermore, other portions of Indian affairs are handled by
other committees; i.e., Education and Labor Committees has certain
responsibility for Indian education ; Indian health is handled by an-
other committee and economic development by another. In the Con-
gress overall there are more than 10 cx)mmittees with responsibility
for some Indian activities, with the result that Indian affairs is treated
in a disjointed, uncoordinated, and haphazard manner. Many of these
committees are unable to handle Indian affairs adequately because
they usually lack staff trained in Indian matters. Generally, Congres-
sional staff people are experienced and trained in general administra-
tion and do not have the knowledge and experience to deal with the
uniqueness of Indian people. These special qualities can only be de-
veloped through long experience in Indian affairs through a per-
manent organization.

Unless Congress accepts its responsibility to the Indian people by
establishing permanent select committees on Indian affairs in the
House and the Senate, problems affecting Indian people cannot be
fully resolved.

A. Congressional Responsibility for Indian A fairs

In 1787, the Constitution Convention approved the Constitution of
the United States and sent it to Congress for action. Article 1, Section
8, Clause 3 of the Constitution provided Congress with the power "to
regulate commerce with foreign nations and among the several States

294

and with Indimi tribes^ [Emphasis added.] The Federal courts have
since held that the plenary power of Congress over Indian Affairs
derives from its responsibility for regulating commerce with Indian
tribes and from treaty-making. As a consequence, Indians and Indian
tribes, more than any other segment of the American population, have
l)een uniquely affected by congressional action or inaction in their daily
lives.

In fulfilling the responsibilities set out in the constitutional docu-
ments, the Congresses established ad hoc, select, or standing commit-
tees as their needs required. The Continental Congress on June 16,
1775, established a Committee on Indian Affairs which was charged
^ith several duties including that of taking steps "* * * for securing
and preserving the friendship of the Indian Nations." In the next
year on April 26, 1776. the Continental Congress established a Stand-
ing Committee on Indian Affairs. The early Congresses under the
Constitution of the United States followed a similar practice but did
not establish a standing Committee on Indian Affairs in the_ Senate
until January 4, 1820. The House of Representatives established a
standing Committee on Indian Affairs until 1947 when it was made a
part of the Committee on Interior and Insular Affairs pursuant to the
Legislative Eeorganization Act of 1946.

B. The Unique Status of Indians

Since Indians are the only group of people specifically identified in
the Constitution, it is clear that a special and unique political relation-
ship exists between the Indian tribes and the Federal Government.
To fulfill these historic obligations to the Indians, the Federal Gov-
ernment through treaties and statutes has promised to serve as trustee
to the Indian tribes and Indian people.

As the trustee, the Federal Government ought to organize itself to
provide those ser-vdces for protection and enhancement. Furthermore,
the Federal Government as trustee is accountable for performance at
the highest degree of skill, care and diligence with the "Prime Agent"
and officials held personally responsible for any breach thereof.

The Congress itself is the most essential part of the Federal side of
the Federal-Indian relationship. IIa-\dng recognized and ratified
Indian treaties, established constitutional relations, enacted subse-
quent laws regarding Indians, Congress is responsible for maintain-
ing the polices and practices so created.

A conmiittee through which the Congress can provide oversight and
consider new plans, new schedules, and funding needs is essential.

During the 19th century, Indian Affairs played a major role in the
affairs of the United States, Indian issues have decreased in im-
portance, but the uniqueness of Indian tribes in their relationship with
the United States remains. The special trust responsibility for Indian
tribes and their resources has not been diminished and should be
acknowledged by the Congress through the creation of permanent
standing committees on Indian affairs in both Houses.

C Conflict of In terest in the Management of Indian Affairs

The jurisdictional basis of the Interior Committees into which
Indian affairs has been merged since 1946 has given rise to severe

295

conflicts of interest. The responsibility of the Interior Committee to
legislate in areas of public lands, national parks, mining and water
and power resources has often been in conflict witli Indian trust in-
terests. So long as Congress fails to vest jurisdiction ov^er Indian
matters in cases of conflicts of interest, Indian interests will suffer.

D. Congressional Consideration of Indian Issues Requires a Perma-
nent Select Com/mittee on Indian Affairs

The complexity and volume of Indian law and the many problems
afi'ecting the Indian people call for a permanent standing committee
on Indian Affairs.

Among the complexities Avhicli will face Congress in the coming
years will be the resolution of Indian claims for land taken by States
and others in violation of the Indian Trade and Intercourse Act of the
late 1700's and the early 1800's. Most widely known are the Passama-
quoddy and Penobscot Indian claims in ^ilaine and Massachusetts.
Similarly, the Catawbas have such a claim in South Carolina. More-
over, the Crow Indians may have claims for tlie return of large areas
of land acquired in violation of their Allotment Act. The research to
identify a reasoned and principled legislative approach to such situa-
tions is extensive. The interests and responsibilities of disparate
groups must be considered in sensitive negotiations, which must resolve
these claims. Congress can expect to confront many of these situations
and a permanent Indian affairs committee adequately staffed is neces-
sary to ensure continuous principled and appropriate legislation.

Many of the statutes in title 25 of the United States Code are obso-
lete, in conflict with later legislation, are in conflict with Federal
policy, duplicative and lack clarity of legislative intent. These laws
are not organized in a logical or practical format and must be re-
viewed, consolidated, and codified.

The last title of the United States Code to be revised and codified
into positive law was title 5 (Government Organization and Em-
ployees). This revision and codification process took more than 8 years
with an initial staff of 29 people, and which had the active support
of the executive agencies. The resolution of many Indian questions
cannot be resolved without a fully staffed Indian committee.

Besides the land title cases and revision of title 25, it is incumbent
upon Congress to act on other Indian-related legislation. In the past,
the small staff of the Indian Affairs Subcommittee has been able to
prepare reports and draft legislation on only a very small fraction
of proposed Indian legislation.

Finally, the oversight responsibilities placed upon Congress on
Indian affairs, are particularly important and time-consuming to the
nature of Indian bureaucracy. Becaust; Indian tribes and Indian
people are scattered throughout the Nation, no political pressure lob-
bying processes aro available. More and more, it appears that con-
gressional delegations from States with significant Indian popula-
tions are catering to those constituents with the greatest political vot-
ing power. "Wliere those interests conflict with Indian interests, the
Members of Congress are reluctant to openly and vigorously support
the legal status and promote protection, preservation and enhance-
ment of Indian assets. Indian issues are national obligations and can-
not be resolved through a local or regional view. Consequently,

296

carefully documented investigation and oversight activities are neces-
sary, and can only be accomplished with consistency by a permanent
Indian committee.

Recommendatioxs for Federal Administration

eligibility of tribes for federal programs

The Commission recommends that:

Congress enact affirmative legislation to reaffirm and guarantee the
permanence and viability of tribal governments within the Federal
system.

Congress clarify the eligibility of tribal governments as prime spon-
sors for Federal domestic assistance programs and other programs
delegated to State and local governments.

Congress enact legislation establishing tribal governments as equal
to State governments in Federal domestic assistance programs. This
should include amendment of all enabling legislation, program acts,
and administrative regulations which require tribal governments to
come under State jurisdiction.

Congress amend the Intergovernmental Cooperation Act to include
tribal governments, and enact the Federal Program Information Act
(S. 3281) to include Indian tribes.

Congress appropriate such funds as are necessary to allow the prep-
aration of operations and procedure manuals to be used by tribal gov-
ernments in their administration of tribal government affairs. These
manuals would include operation models presenting alternative sys-
tems of financial management, accounting, personnel policies, and pro-
cedures, management information and organization structure.

Congress enact Senate Bill S. 2175 — Public Participation in Gov-
ernment Proceedings Act of 1976.

ESTABLISHMENT OF INDIAN CAREER SERVICE

The Commission recommends that :

The executive branch establish an Indian Career Service consistent
with statutory provisions and should be charged with the reponsibility
of develoi^ing the employment standards as required by section 12 of
the Indian Reorganization Act of 1934.^-

The executive branch propose a plan to imj^lement the provisions of
section 12 of tlio Indian Eeorganization Act of 1934 by establishing
standards for the hiring of Indians apart from the requirements of
civil service laws in the Bureau of Indian Affairs and the Indian
Health Service.

Congress amend section 12 of the Indian Reorganization Act of 1934
to make the Indian preference provisions applicable to all Federal
ao-encies administering pi^ograms specifically directed to Indian
affairs.

CONTRACTING PREFERENCE AND TECHNICAL ASSISTANCE

The Commission recommends that:

The executive branch coordinate efforts to provide for the direct
administration of contract funds by the Indian people.

"- A complete legal analysis with findings related to Indian preference laws Is con-
tained in the Task Force Number Nine final report, vol. I., pp. 106-120.

297

The executive branch direct the implementation of section 7(b) "
of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450e(b) supp. 1976) to direct its applicability to all Federal
agencies; further to direct the General Services Administration to
amend Federal procurement regulations to :

Clarify the scope and intent of section 7(b) .
Emphasize that contradicting orders cannot modify a congres-
m on 1 1 *ipi"

Clarify' that title VII, section 703 (i) of the 1964 Civil Eights
Act provides for permissible preferences.

Provide standard Indian preference language be included.
The executive branch direct that the Office of Federal Contract Com-
pliance within 0MB offer a statement in support of the amended
Federal procurement regulations.

The Bureau of Indian Affairs compile and maintain a permanent
list of qualified Indian contractors ; such a list to be maintained ; stand-
ards being maintained; such lists to be available to all Federal
agencies.

The executive branch coordinate and consolidate all technical assist-
ance efforts into a single agency.

The executive branch establish a national professional and technical
Indian skills bank administered by Indians.

The executive branch should direct and coordinate all agencies to
establish a model National Indian Technical Assistance Center — con-
solidating personnel with technical assistance grants and contracts.
Such consolidation to run parallel to existing BIA service units to test
the feasibility of an independent agency service center.

LONG-RANGE EXECUTIVE REORGANIZATION OF INDIAN ADMINISTRATION

The Commission recommends that :

The President submit to Congress a reorganization plan creating a
Department of Indian Affairs or independent agency to be comprised
of appropriate functions now mainly administered by the Bureau of
Indian Affairs, Indian Health Service, and agencies within the Interior
and Justice Departments. Rights protection be consolidated as set forth
in chapter 4 of this report.'^*

The plan for a transfer of appropriate programs and functions to
the new agency include a review of those programs identified in part
III of this chapter. In the interim, the President establish a tempo-
rary special action office within the "VVliite House which would be
charged with responsibility for preparing a plan for the President.

The President designate the Secretary of the Interior and the Sec-
retary of Health, Education, and Welfare to implement and coordi-
nate efforts to evaluate and plan the transfer of various agencies in
the event of the establishment of a department or of an independent
agency.

Congress authorizes a management study of the Indian Health Serv-
ice to be conducted utilizing experts from the public and private sec-
tor and representatives from the Indian community.

73 A legal analysis of the mandates of Indian contracting under 7(b) is contained in the
final report of Task Force Number Nine in VI, 2 :C.

7* The authority of the President to reorganize the executive branch (see chapter 9, title
5, U.S.C.) does not include the creation of a new cabinet or executive department, the
President submit to Congress a reorganization plan.

92-185—77 20

298

The President submit to Cono;ress an appropriate plan for the re-
moval of all Indian education programs from the Office of Educa-
tion, in the Departmeiit of Health, Education, and Welfare and the
Bureau of Indian Affairs to a consolidated independent Indian agency.
Such Executive action would establish:

Stronger lines of connnunication between tribes and the source
of educational funding;

An administrative structure that would support the develop-
ment of tribal control;

Direct targeting of moneys and services to tribal communities ;
A reliable data base, such that effectiveness of fund utilization
.can be monitored;

Programs that permit individual ization of services to meet the
unique needs of each project; and
Direct rather than coincidental aid for educational problems.

SHORT-RANGE EXECUTIVE BRANCH PROPOSALS

The Commission Tecommends that:

The Secretary of the Interior implement an action plan for the
modernization of the Bureau of Indian Affairs in order to change
it from a management to a service agency. Such a plan give maximum
consideration to the Commission's "BIA Management Study" pro-
posals. Generally these are:

A new organizational structure be established to transfer au-
thority and responsibility to the local level. Particularly, the
present area offices be divested of their line authority and be
established as service centers.

The establishment of a planning and budget system which will
stimulate Indian tribal participation and place more emphasis
on tribal project priorities in the congressional appropriation
process. Tribes should participate in the budget process directly
with the Commissioner or Assistant Secretary of Indian Affairs
and Congress to the greatest degree possible.

The establishment of a program to improve the communica-
tions and management information system throughout the BIA
and contract for access to an automatic data processing system
which will also be made available to tribal computer terminals.
The reorganization of the personnel system to improve BIA
effectiveness while continuing to train, hire, and upgrade Indians.
The executive branch direct the Secretary of the Interior to com-
pile an appropriate manual of operations which will define and publish
minimum and standard threshold trust protections in management,
procedures, accounting, monitoring, evaluation, and reporting which
should be provided as a standard for all Departments and their field
offices as well as for Indian tribes.

299

The Secretary of the Interior, under existing authority, undertake
the amendment of the rules of procedure of the Department of the In-
terior (43 C.F.R. subtitle (a), 1975) pursuant to sec. 4(d) of the Ad-
ministrative Procedures Act (5 U.S.C. 553(e) and 43 C.F.E. 14.1) to
provide compensation for certain participants in the rulemaking
and adjudicatory proceedings conducted by the Department of the In-
terior, including public informal hearings conducted in rulemaking
procedures.

The Secretary of the Interior direct that the Commissioner of In-
dian Affairs be given Assistant Secretary status. This can be accom-
plished administratively, but may require other supporting legislation.

The Secretary of the Interior remove the Associate Solicitor's Of-
fice of Indian Affairs from the Interior Solicitor's Office and create
an Office of the General Counsel in the Bureau of Indian Affairs.

The Secretary of the Interior establish a separate office of Indian
program development and budget, as well as a separate office of policy
analysis for Indian Affairs under the Assistant Secretary, Program
Development and Budget.

The Deputy Under Secretaiy for Indian Affairs become an inte-
gral part of an implementation team and direct Secretarial in-house
administrative action.

The Secretary of the Interior direct the Bureau of Indian Affairs
to establish a duly elected Board of Regents to be recognized as a
unit representing tribes and tribal opinion to contract for and ad-
minister post-secondary schools.

The Secretary of the Interior direct the Bureau of Indian Affairs
to establish that a duly elected Board of Regents representing each
tribe be recognized as a unit representing tribes and tribal opinions
to contract for and administer those multitribal elementary and sec-
ondary schools.

CREATION or CONGRESSIONAL INDIAN AFFAIRS COMMITTEES

The CoTnmission recommends that:

Congress establish permanent standing or special select committees
for Indian Affairs in each Plouse or place all jurisdiction, oversight,
and legislative authority in one joint select committee.

CHAPTER SEVEN
THE ECONOMICS OF INDIAN COUNTRY

The first and most basic step for development is to set development goals which
reflect the long-term interests of all tribal members. Once these goals are estab-
lished, tribes can then evaluate their possible sti-ategies and tactics. There is an
essential theme which will carry tribes through all aspects of the development
process. Tribes must reclaim control over their resources — land, water, minerals,
timber, fisheries, etc., and they must be responsible for all decisions as to their
use and development. For a tribe whose goal is self-determination, every pro-
gram should be evaluated for its impact on the tribe's ability to establish a
meaningful development process.

(301)

CONTENTS

Page

Overview 305

Natural Resources Protection and Recovery 308

Land 308

Recommendations 312

Agriculture 314

Recommendations 322

Timber 324

Recommendations 328

Water Resources 329

Recommendations 338

Mineral Resources 338

Recommendations 346

Human Resources 347

Recommendations 354

Physical Infrastructure 354

Recommendations 358

Investment Capital 358

Recommendations 362

Investment of Trust Funds 362

Recommendation 363

Enterprise Development Efforts 364

Recommendation 365

(303)

CHAPTEK SEVEN
THE ECONOMICS OF INDIAN COUNTRY

Overview

Indian people have had to relinquish their lands and resources, giv-
ing way to the white man's needs. In 1887, there were almost 2 billion
acres of land under Indian use. By 1924, this total had shrunk to 150
million acres; by 1975, to 50 million acres. This process was most
dramatic during the early history of this country. But economic and
social deprivation still continued. Too often, Indian timber, minerals,
water, rich agriculture and grazing lands, are exploited through leases
whose return is grossly unfair.

The administration of Federal programs and the execution of the
trust responsibility of the U.S. Government should be directed toward
establishing or reconstituting viable economies. Instead, a relationship
of dependency has been allowed to grow between Indian people and
the United States Government. A look at the Federal Indian budget
demonstrates that the j)i'i^^^^iT condition being fostered continues to
be one of dependency.

Sixty percent of the Indian budget is committed to providing social-
welfare services, which are generally available to all other Americans
as well. Yet, only 9.5 percent of the budget is used for the execution
of the trust responsibility of the United States to protect the re-
maining natural resources of Indians and further development of
Indian country.^

The development task is a difficult one. For the most part, Indian
reservations suffer from all the well-known symptoms of extreme
poverty in America although some tribes have begun slowly to reverse
that existing condition by demonstrating that carefully planned proj-
ects can result in success and productivity. These accomplishments
are truly significant \Yhen it is understood that the tribes have not had
autonomous control over decisions with respect to resource allocation
and reinvestment of returns on original investments. They have taken
the initiative in insuring that their lands be utilized in such a manner
that returns from production flow to the tribe rather than elsewhere ;
that prudent investments in industrial development are encouraged
within their territories ; and that a relatively stable and efficient Indian
labor force be established. But this is not the case for the large majority
of tribes. In fact, indicators show that dependency, not productivity,
continues to rise. However, the gains pointed out in some areas are
mentioned to illustrate that under certain conditions tribal govern-
ments can establish improvements in economic productivity even in
the face of complex, adverse conditions.

1 U.S. Dept. of the Interior budget justifications, Bureau of Indian Affairs, fiscal year
1978.

(305)

306

Even casual observers have been startled by the stark contrast in
economic conditions between reservation lands and adjoining non-
reservation lands and communities. There has been an obvious lack
of meaningful/levelopment of tribal lands while one can observe pros-
pering communities just beyond reservation borders. To simply re-
cord the income gaps and then suggest that existing national income
redistribution (poverty) programs will provide the necessary solu-
tions toward reversing reservation economic dependency is the tradi-
tional but plainly inadequate response.

CAUSATIVE FACTORS OF DEPENDENCY

Before one can begin to formulate revitalization plans, it is necessary
to come to grips with fundamental historical and causative, factors
which resulted in the creation of a dependency environment.^ver the
years, rather than encouraging tribes to initiate tribal production
activities, the Federal Government has increased dewndency by en-
couraging the destruction of the tribal social fabric^In response to
antitribal administrative actions, tribal members developed ingenious
ways to preserve tribal culture under difficult conditions, a situation
which still exists in Indian country.

As an example, in a report to Congress by the General Accounting
Office (GAO) in discussing the Gross Reservation Product (GRP)
of one tribe, it was noted that even though the GRP had increased by
89 percent from $20.3 million in 1968 to $38.5 million in 1972 the bulk
of the increase was in Government expenditures. Government expendi-
tures increased from 34 percent of the GRP in 1968 to 50 percent in
1972, showing an increase in dependency. The per capita monetary in-
come to tribal members increased by 65 percent from $835 in 1968 to
$1,380 in 1972. This shows an important percentage increase. How-
ever, it is a percentage figure based on a minimal income base and does
not represent anj^ significant increased income. A breakdown of tribal
per capita income follows :

1958

1972

Amount

Percent

Amount

Percent

$610

$1,063

160

225

Income from wages and salaries

Education scholarships and vocational training.

Veterans and social security benefits

Welfare and unemployment payments

Total

835

100

1,380

100

It is important to note that while there were increased expenditures
in education scholarships and vocational training, the effort in this
area remained constant at 2 percent.^ It must be noted that there was
a decrease in percent spent on welfare and unemployment payments.
These figures are encouraging. If additional opportunities for train-
ing and education in the economies such as business management and
natural resources were available, Indian tribes would have an in-
creased capacity for developing a self-sufficient economy.

3 U.S. Comptroller General, report to the Congress. Better Overall Planning Needed To
Improve the Standard of Living of White Mountain Apaches of Arizona, Washington,
D.C. : GAO, Aug. 12, 1975. p. 34.

307

Althougli absolute productivity on reservation has increased, the
bulk of transfers have resulted in a reduction of relative productivity
in relation to total income in Indian communities. In other words,
the rate of increase in expenditures by the United States has exceeded
the rate of increase in reservation productivity. Tliis situation might
have been averted if the Federal policy would have permitted a flow
of investment capital to reservations via development banks or other
intermediaries. Unfortunately, the fact is that on some of the largest
reservations productive income generated by the tribe or its members
only makes up 10 percent of the total distributed income. The con-
tinuation of policies which lead to such conditions does not lend itself
to investment opportunities.

IXDIAN CONTROL NECESSARY FOR ECONOMIC SELF-SUTTICrENCY

Indian people can regain their historic economic self-sufficiency only
if they regain control over their natural resources and begin to de-
velop these resources themselves. The following section first discusses
what Congress must do to return to Indian people control of their own
resources. Second, it examines the action Congress must take to sup-
port Indian people in their struggle to develop their resources by and
for themselves.(Self-reliance is not possible without an initial commit-
ment of Federal assistanceNThis means using Federal assistance to
accomplish goals set by Indilm people.

We must view the issues of economic development as critical to
other issues that Congress is attempting to resolve — particularly issues
relating to Indian self-determination. Implicit in the policy of Indian
self-determination is assistance to the tribes for the purpose of reduc-
ing their dependence on the Federal Government.

To develop. Indian people must move away from the dependency
relationship. The consensus of Indian opinion is that self-sufficiency
is the primary goal of development. If self-sufficiency is the goal,
self-reliance is the only possible means. Self-reliance will not mean
scorning all Federal assistance. It does require effective and wise use
of that assistance. Self-reliance means determining a truly Indian de-
velopment process, using Indian labor, Indian resources, and Indian
creativity.

The first and most basic step for development is to set development
goals which reflect the long-term interests of all tribal members. Once
these goals are established, tribes can then evaluate their possible strat-
egies and tactics. There is an essential theme which will carry tribes
through all aspects of the development process. Tribes must reclaim
control over their resources — land, water, minerals, timber, fisheries,
etc.. and they must be responsible for all decisions as to their use and
development. For a tribe whose goal is self-determination, every pro-
gram should be evaluated for its impact on the tribe's ability to estab-
lish a meaningful development process.

THE FEDERAL ROLE

The policy changes discussed above must be viewed as fundamental.
The Federal role must be to provide a favorable climate for economic
development. This policy must be expressed through drastically in-

308

creased appropriations for capitalization of necessary community
facilities, enterprise development projects, and other essential com-
munity support system, and by alternative means for acquirino; capital
resources. New Indian financing mechanisms (e.g., development
banks) and investment procedures must be established and develop-
ment of basic skills and technologies must be fostered.

This chapter will examine the structure of differing tribal econo-
mies and the use of their reservation resources. The analysis contained
herein is based on Indian comments from across the country and, it
is believed, reflects faithfully the opinions and desires of Indian.
people.

NATUKAL RESOURCES PROTECTION AND RECOVERY

Land

The overwhelming conviction of Indian people is that an adequate
tribal land base is essential. Their economic security and development
of tribal economies depend on it ; the very survival of Indian cultures
and the permanency of Indian tribes as governmental units depend
on it. Recognition of this basic fact was the reason the Federal Gov-
ernment established Indian reservations in the 18th and 19th centuries.
The allotment policy contained in the 1887 Dawes Act represented a
complete reversal by the U.S. Government. The clear intent of the
allotment policy was to break up the tribes' communal land base in
order to force the assimilation of Indian people into non-Indian
society. The result is the bizarre land ownership patterns existent on
many reservations which make it virtually impossible for those tribes
to engage in meaningful economic development. The importance of
land to the Indian was recognized again in the 1930's when the Indian
Reorganization Act of 1934 (IRA) was enacted by Congress. But
Indians were again subjected to a radical shift in Federal policy
when, in the 1950's, a Federal termination policv prevailed and over 3
million acres of land passed from Indian ownership.

This ambivalence of the United States Government has taken a very
heavy toll over the years.

HISTORY OF INDIAN LAND LOSS

In 1875, 4 years after Congress had ended formal treatymaking
with Indian tribes, the total Indian reservation land base stood at
approximately 166 million acres, or about 12 percent of the land in
the continental United States.

By 1887, with the passage of the General Allotment Act. further
cessions of lands had occurred pursuant to agreements urged by the
United States and Indian landholdings diminish.ed to less than 137
million acres. But, the next 45 years were even more disastrous for the
Indian. Tremendous political pressure in the West for the opening
up of more land to homesteading, the involuntary allotment of tril^al
lands to individual Indians, and the sale to non-Indians of "surplus
lands" from reservations resulted in the Indian land base being reduced
to approximately 52 million acres by 1934, close to what it is today.

309

The story of this loss of land has been documented previously by-
man}' authors and Government reports.* and is discussed in detail
earlier in this report. Thus, it is not necessary to reexamine indepth
this historical movement. In order to understand the Indians' caution
■with respect to Government polic3% however, a brief look is helpful.

Under the General Allotment Act of 1887, 118 reservations were
allotted and of those 44 were opened to homestead entry under public
land laws. Approximately 38 million acres of Indian land were "ceded"
outright to the Government with the proceeds distributed in per capita
payments or agency funds. Another 22 million acres of so-called
surplus tribal lands existed after allotments were made and reserva-
tions opened for settlement by non-Indians.^

Of the tribal lands allotted to individual Indians, a trust period of
25 years was placed on the land with restrictions upon State taxation
and on the owner's right to sell his or her land without the Govern-
ment's consent. After 25 years, a fee patent would be issued removing
all restrictions and protections. As a result of issuance of fee patents, 23
million acres were sold out of Indian hands between 1887 and 1934.^
often to pay debts or provide immediate income for poverty-stricken
families; an additional 3.7 million acres were sold by special per-
mission. By 1934, 3 percent of the allotted land converted to fee
patents remained in Indian ownership.'^

Primarily, in recognition of the failure of the allotment policy,
Congress, in 1934, enacted tlie Indian Reorganization Act (IRA),
which was aimed at tribal economic rehabilitation. That Act halted
further allotments, extended indefinitely the trust status of those
allotted lands not yet granted a fee patent, and restricted their con-
veyance to tribes and other Indians.^ The IRA also authorized the
Secretary of Interior to "acquire through purchase, relinquishment,
gift, exchange, or assignment, any interest in lands, water rights or
surface rights to lands, within or without existing reservations * * *
for the purpose of providing land for Indians," ^ and it authorized
the appropriation of $2 million annually. It also specified that title
to any lands acquired under the Act "shall be taken in the name of the
United States in trust for the Indian tribe or individual Indian for
which the land is acquired, and such lands or rights shall be exempt
from State and local taxation." i°

Initially, the Bureau of Indian Affairs was aggressive in seeking
funds under section 5 of the Act to acquire lands and place them in
trust for Indians. In 1936 and 1937, Cono-ress appropriated a total of
62 million for this purpose." However, appropriations for land acqui-
sition dropped off steadily. In 1944, nothing was appropriated under
the Act.^2 rpi^g result was that in the 40-year period since passage of

lapY'r- ^^V^^^u^ ^H^^%^ "^^^^ Indian : America's Unfinished Business (XJ. of Okla. Press,
l T, V r!i =:"/, X 3' Dnoheneaux, One Hundred Million Acres fMacmillan, 197?!) •
Con^'?lst self (1969')'''° Education: A National Tragedy— A National Cliallenge, 91st
T-«l^'^*'?"2l p^onrces Board, Report on Land Planning. Part X. Indian Land Tenure
Economic Status, and Population Trends, U.S. Govt. Print. Off., 193.5: -lenure,

• Ibid! '

« Act of June 16, 19.34. 48 Stat. 9R4

' Supra, sec. 5 ; 25 U.S.C. sec. 465.

^^ Ibid.

Pc^ic^'/Revfi'w'comiSssx^n'May m ^^''^' ^'^""^"^^ "^'^ "^"^^^^ °^ *^« ^^^'''^^'^ 1'^'^''^°
^ Ibid.

310

the IRA, a total of $5,988,077 has been expended under section 5 of
the IRA for land acquisition and consolidation on behalf of Indians.^^
This money purchased 595,157 acres, over 70 percent of which was
suitable at best only for grazing livestock. If the authorization under
the Act had been used to its fullest extent, there would have been
appropriated more than $80 million for land acquisition and
consolidation.

An even sadder aspect of this record is that within the same time
period, in which the Federal Government was acquiring 595,157 acres
for Indians, it was also taking other Indian lands. From 1936 through
1974, a total of 1,811,010 acres of land were taken. This does not even
include lands taken for rights-of-way for roads, pipelines, powerlines,
and other Federal or State projects.

It does, however, include loss of land for projects like the Garrison
Reservoir (175.000 acres), Oahe Reservoir (101,952 acres), and the
Riverton Project (16,152 acres). These takings were controversial at
the time and even today are making national headlines. The opening of
Garrison Dam in the spring of 1953 was a bitter defeat for the Fort
Berthold Indians, as the dam flooded one-fourth of the reservation.
The Bureau of Reclamation's original choice for a site prevailed even
though it had been declared unsafe by the Corps of Engineers.^* Today
the Garrison Dam and Oahe Reservoir are among "the most econom-
ically wasteful and environmentally destructive" water projects built
with Federal money.^^ The Bureau of Reclamation now claims, after
severely disrupting the economic base of several tribes, that the Oahe
Project would only return a dollar for each dollar spent and many
white farmers do not want the project for fear of damage to their
land.^^ The next land taking anticipated is the Fort McDowell Reser-
vation by the Orme Dam Project, a part of the Central Arizona Proj-
ect even though the State water engineer testified that "the project is
viable with or without Orme." ^^ However, historical experience has
shown that it is less politically sensitive and less expensive to take
Indian lands for Federal water projects than non-Indian lands. From
1936 through 1974, Indian people lost 488.226 acres of land. This is
almost 13.000 acres per year, during a period when the official policy
of the United States Government was to assist tribes in consolidatin'o-
their land base and seeking economic self-sufficiency.

FEACTIOXATED OWXERSHIP

Although there has been some improvement, much of Indian land
is unusable because of fractionated ownership of trust allotments.^^
With each generation more and more heirs inherit interests in small
parcels of land, and in some cases more than 100 individuals may hold
interests in a 160-acre piece of land. In one case, on the Standing Rock

w Ibid.

1* Ibid., app. B.

^^ Grace Liphtpnstein. "Dams Atp An Endangered Species", New York Times, jMar 1077

i_9 William Robbins, "President Is Viewed Firm on 19 Cuts", New Yorlc Times, Mar. 12,

1" Grace Lichtenstein, "Arizona Concerned by Aqueduct Fund Cut", New Torlc Times
Mar. 16, 1977.

" See. e.g., Langone. S., Tbe Heirship Problem and Its Effect on the Indian in Toward
Economic Development for Native American Communities, U.S. Govt. Print Off Wash-
ington, D.C., 1969.

311

Reservation, 3G0 people own one allotment. More than 10 million acres
of Indian land are burdened by this bizarre pattern of ownership. The
BIA spends increasing amounts of money each year administering
their lands. It was observed 20 years ago that "Indian allotments are
useless except as a parcel to be combined with other land for a sufficient-
sized livestock operation ; for, whereas 2.500-3,000 acres are required
in much of the Dakota country for an efficient ranch, the allotments
range in size from 160-640 acres. Hence, individuals continue to sell
their allotments, lease them to non-Indians, or let them lie idle.^^ There-
fore, it is not surprising that non-Indian farmers cultivate about 63
percent of Indian agricultural lands and that Indian people believe
that land consolidation and acquisition is important to their economic
future.

CONSOLIDATIOX PR0GRA3HS

Some tribes have developed land acquisition and consolidation pro-
grams to solve the problem of "checkerboard" ownership of land. Fre-
quently, these have been supported by tribal funds and, in some cases,
by loans from the Federal Government. But past and current Federal
loan programs have been woefully inadequate, totaling overall less
than $50 million ; and it is estimated that at least $1.5 billion is needed
to buy the 10.2 million acres of existing allotted land.-°

Moreover, not only are Federal loan programs insufficient, but they
expose trust land to a serious threat. The Farmers Home Administra-
tion has been the largest source of loans for land repurchase in the
last 6 years. Usually, tribes offer the land purchased or a guaranteed
income, such as interest from tnist funds, as collateral. To repay these
loans, the tribe must put the land into production. If the land was
originally allotted, it becomes fee simple land on foreclosure. Thus, a
land consolidation effort based on loans secured by trust land could
result in further loss of Indian land.-^

The importance that Indians attach to reacquiring and stabilizing
this land base is illustrated by the following excerpts from special
tribal reports submitted to this Commission : --

Standing Rock Sioux Report :

* * * today, one of the serious problems we have with the Indian administration
is that they continue to fail to take any significant action with respect to restor-
ing the land base. This should be their priority * * *. We believe that a viable
solution to existing dependency related problems on Standing Rock, as well as
those problems resulting from jurisdictional disputes is for tlie Indian adminis-
tration to establish a concerted program to restore the reservation's original land
base to the 1S89 reservation boundaries. (P. 21.)

Crow Tnhal Report:

During the Eisenhower administration, individual Crow tribal members were
able to apply for and receive patents-in-fee which allowed them to sell their
allotted lands easily to eager non-Indian ranchers and farmers. The resultant
effect was a second, rapid reduction in the total remaining land base than com-
prised the Crow Reservation. In 197G the total Crow-owned land base that re-

^5 Dorner, P., The Economic Position of the American Indian (lOS Harvard University,

-• Task Force No. 7 final report, AIPRC, July 1976, p. 37.

=1 Ibid, at 27.

22 Special tribal reports to AIPRC, 1976.

312

mainecl on the Crow Reservation is approximately 1.5 million acres, while the
land base that accrued to non-Indians who reside within the reservation bound-
aries is approximately 700,000 acres. (Pp. 55-50.)

Walker River Paiute THhal Report :

Between 1006 and 1926, reservation agricultural land was allotted in -20 acre
parcels. By the 1930's, these parcels proved to be uneconomical * * *. Even leased
units are far too small to be competitive with surrounding profitable farm opera-
tions using modern metluids and equipment * * *. The federal laws governing
heirship of Indian trust allotments can and must be modified to consolidate
ownership in order that the Indian owner can enjoy the privilege of complete
ownership and productivity utilize the properties * * *. (P. 2, ch. 8.)

Affiliated Tribes of Northwest Indians :

The concept of self-determination implies a substantial degree of economic
independence. Though the funding sources are theoretically available, they are
in most situations illusory or inadequate because of other impediments * * * to
tribal economic development. (We) * * * have classified these impediments into
four broad categories: (1) limited land resources and the lack of adequate
Congressional appropriations for acquisition of additional land * * *.

The desire for land is not a romantic notion. It springs from a
serious analysis by Indians of their needs for cultural survival and
the economic improvement of their people. The integrity of their land
base is essential for the preservation and enhancement of all other re-
sources — water rights, fishing, hunting, and trapping, timber and
mineral reserves — in that Indian livelihood is derived from the land.

To illustrate this point the Standing Rock Sioux Tribe in its report
to the Commission found : -^

* * * It is clear to the Tribe that for us to become economically viable, we will
need such a contiguous and restored land base. Those individuals who say that
the reservation cannot be a viable place for Indian development do not know
what they are talking about. Standing Rock never did agree to opening of the
reservation under the Surplus Land Acts and does not agree to that to this day.
We are advocating a restoration and land reform program, which can take place
over a long period of time so that neither the Indian interests, nor the non-
Indian interests will be discriminated against. Many people believe erroneously
that non-Indians do not wish to sell their land. This is far from reality. Tlie
Tribe is continuously approached by non-Indians who wish to sell their land to
the Tribe. * * * We believe that since there seems to be a steady and growing
group who want to move from the reservation and since it is our objective to
gain back as much of the land that was taken from us without our consent, that
it is morally, as well as economically reasonable, that the Indian Administration
develop a program whereby the Tribe can regain trust title of those alienated
lands as they become available for sale * * "'■'.

EECOMMENDATIONS

The Commission recommends that :

Congress appropriate funds and provide technical assistance to in-
sure the preservation, consolidation, and acquisition of Indian lands
upon which to build tribal future. This includes assisting tribes in
devising comprehensive land consolidation plans, and assisting land-
less tribes in establishing a land base. Congress, therefore, must provide
legislation which would :

(1) Increase the funds in the Revolving Loan Fund (Indian
Financing Act) administered by the Bureau of Indian Affairs,
and create a set-aside specifically for tribal land acquisition. These
loans should carry lower interest rates and longer terms than now
exist for other enterprises receiving loans under the Fund. Present

23 Ibid., Standing Rock, 1976.

313

requirements should remain whicli stipulate that there be a rea-
sonable prospect of repayment and that the applicants must have
exliausted other avenues of reasonable financing, but there should
be less rigid requirements relating to the profitability of the land.

(2) Mandate that the Revolving Loan Fund have standby line
of credit for tribes to use when immediate access to funds is
necessary to purchase key tracts of land which are for sale and
are essential to the tribe's acquisition or consolidation plans but
would probably otherwise be lost to the tribe during the loan
application process.

(3) Permit tribes to have a "first right of purchase" option
when individually held trust land or non-Indian held land within
a reservation is offered for sale,

(4) Amend section 5 of the Indian Reorganization Act to pro-
vide for an increased appropriation of funds for land acquisition,
particularly for those tribes which are presently landless.

(5) Amend sections 1465 and 1495 of title 25 of the U.S. Code
to delete the provisions of Indian Financing Act funds which
restricts the use of purchase of lands outside the exterior bound-
aries of Indian country unless the purchaser was the owner of trust
or restricted interests in the land prior to purchase.

(6) Amend the "excess property" provisions of the Federal
Property and Administrative Services Act 40 U.S.C. section 471,
et. seq., to specifically provide for transfers of excess property,
whether located within or without the exterior boundaries of
tribal lands, to the Bureau of Indian Affairs for use by Indian
tribes.

(7) Mandate that the Secretary of Interior establish and make
public specific criteria for accepting Indian lands in trust. Such
criteria should include a presumption that lands owned in fee by
a tribe or to be acquired in fee shall be accepted in trust unless
the Secretary sets forth in writing sufficient reasons for refusal.

(8) INIandate that the Executive examine and report to the Con-
gress on the feasibility of consolidating the Indian land acquisi-
tion loan program administered by the Department of Agricul-
ture and the BIA loan programs into one Federal-Indian loan
program designed exclusively for providing funds for tribal land
consolidation plans. Land should also not be required as collateral
for such loans.

To provide solutions for the debilitating problems presented by the
fractionated ownership of heirship lands, Congress enact legislation
which would :

(1) Amend the U.S. Code to enable tribal governments to adopt
comprehensive plans for resolving fractionated heirsliip land
problems. Such plans could include the following procedures:

(a) Guaranteeing that tribes have first right to purchase
when heirship lands are sold.

(h) Authorizing the holders of a majority of the owner-
ship interests in a trust, or restricted allotment, to determine
sale of land.

(r) Enactment of tribal laws governing descent and distri-
bution of fractionated heirship lands to allow purchase, at
the time of probate of estates, undivided interest in allot-

92-185—77 21

314

ments in heirship status which have reached an unreasonably
small fraction ; restriction of inheritance of trusts or restricted
allotments to members of the tribe ; or restriction of inheri-
tance to a life estate with a remainder in the tribe, but only
upon payment of fair market value compensation to the
prospective heir.

{d) Condemnation with fair compensation by the tnbe ot
lands in heirship status which have reached unreasonable
small fractions.

(2) Repeal statutes which are obstacles to exchanges and/or
sales between owners of allotment interests.

(3) Reform partitioning laws to facilitate partitioning of allot-
ment interests held by heirs, if partitioning is in the best interest
of their heirs and the tribe.

(4) Transfer the probate authority over trust property now
held by the Secretary of the Interior to the tribe.

(5) "Amend the special laws regarding the Five Civilized
Tribes and the Osage to merge them with the general laws gov-
erning the other tribes, at least with respect to jurisdiction over
smallestates ($5,000 or less) and with respect to their capacity to
write laws governing the descent and distribution of property.

Agriculture

Indian lands and natural resources are located on over 200 reserva-
tions in 26 States and encompass in excess of 50 million acres. About
129 reservations have Indian populations of at least 200 and land of at
least 1,000 acres.

Indian lands include: (1) 5.8 million acres of commercial forest
land, which is about 1 percent of the Nation's commercial forest land
and includes about 38 jbillion board-feet of timber, or ly^ percent of
the Nation's total; (2) 44 million acres of rangeland, or about 5 per-
cent of the Nation's total; (3) about 2.5 million acres of cropland, or
1 percent of the Nation's total.^*

Indian range and croplands are valuable resources that provide
Indian tribes and individual Indians with considerable income and
job opportunities. In 1975, 26,189 Indian families obtained all or part
of their livelihood from livestock and farming activities. But the
potential yield from agricultural activity is not nearly achieved. ^^

According to 1975 BIA statistics, the gross value of agricultural
products grown on Indian range and croplands amounted to $394 mil-
lion. Of this amount, Indians received $123 million or less than one-
third of the total value of range and farm products grown on Indian
lands. Non-Indians, on the other hand, received $271 million or 69
percent of the total value of agricultural products produced on Indian
lands.'^

It has been estimated that the gross value of agricultural products
grown on Indian range and croplands could be doubled if these re-

24 ppnort to thp Committfe on Interior and Insnlar Affairs. U.S. Senate. "Indian Natii-
ril Resources — Onportnnities for Improved Manasrement and Increased Productivity",
GAO, A"?. IS. 1075 'R n t8fl.SK n. 1.

T^T^ T?T,\ in its 1075 Land Use Inventory and Production Record (Form 50-1) classified
3."? n.fil .017 acres of Indian land as open grazing.

" -n--.-, BTA Form .50-1.

28 1975 BIA Form 50-1.

315

sources were under luore intense manatrement. Xumerous impediments
to full achievement of the economic potential of Indian agricultural
resources have been identified. These include problems relating to
fractionated land ownership patterns, lack of access to capital funds,
insufficient training in resource management, deficiencies in lease
terms to both Indians and non-Indians, as well as nonenforcement of
lease provisions by the BIA, and lack of general economic infrastruc-
ture such as roads, communications, etc. Land acquisition and con-
solidation and general economic infrastructure are dealt with else-
where in this chapter. This section focuses only on issues related to
farming and livestock production, and leasing of land for thesa
purposes.

FARMING OF IXDIAX LANDS

Imjyortance of Indian Agriculture

According to 1974 BIA statistics. 2.440.172 acres, or 4.7 percent of
all Indian trust land, were classified as agricultural. Of the almost 214
million acres, 29 percent were irrigated and 71 percent were dry farm.
"While the size of Indian agricultural lands seems small, the value of
products grown was considerable : $o39.919.780.

However. 73 percent of this value was produced by non-Indian
operators. Part I of the 50-1 form shows that non-Indian operators
usually cultivate 63 percent of all Indian agricultural lands, while
Indian operators cultivate 29 percent and S percent remains idle.-'

TABLE l.-INDIAN AGRICULTURAL LANDS USED BY INDIAN AND NON-INDIAN OPERATORS AND GROSS VALUE

PRODUCT, 1974 i

Type of land
Dry farm Irrigated

Gross value, Gross return
Operator Acres product per acre Acres

Gross value,
product

Gross returir
per acre

Indian 564,630 $38,643,144 $68 70,998

Non-Indian 936,649 111,617,105 119 247,047

$24, 433, 041
134,891,467

$340
464

1 Figures based on calculations drawn from BIA 1974 Land Use inventory and Production Record (form
TABLE 2.-GR0SS VALUE OF PRODUCTS GROWN ON INDIAN LANDS, 19751

50-1)..

Total Indian
Agriculture value operated

Non-lndiaiT
operated

Indian/total

gross value

(percent)

Cultivated rovi( crops $95,283,812 $16,324,145 $78,959,667 5.8

Smallgrains 115,188,919 26,411,411 88,777,508 22.*

Forage, hay, and tame pasture 65,101,563 21,962,302 43,139,261 33.7

Horticultural and garden crops 37,612,722 5,154,232 32,458,490 13.7

Native hay 886,811 667,675 219,136 75. S

Grazing 78,845,106 52,170,523 27,674,583 65.5

Total 393,918,933 122,690,288 271,228,645 31.0

■ Figures derived from the 1975 BIA Land Use Inventory and Production Record (form 50-1).

-"Calculations haspd on 1074 BIA 50-1 form, part I, for total Indian land in agriculture-
nnd use by Indian or non-Indian. Part VII for value of pi'oduets prrown. Tliere is a dis-
crepancy in the total amount of land classified as ajiricultural and the figures identif.ving
its use. Eight percent of Indian-owned land classified as agricultural is idle, amounts to
195.21.S acres. This figure, plus the average figures in the following table leave a discrep*
ancy of 425,635 acres classified as agricultural but unaccounted for in these statistics.

316

Task Force Number Seven on economic development examined 32
reservations in depth. For the 10 reservations with the most agricul-
tural land, tliey found that land use and economic return patterns
correspond fully to that in the above tablets One is immediately struck
biy the fact that the non-Indian operator not only cultivates the bulk
-of Indian lands, but that his gross return per acre is higher.

The preceding table provides a breakdown of major crops and their
A^alue grown by Indians and non-Indians on Indian land in 1975. As
shoAvn by this'table, in 1975, Indians derived only 31 percent of the
total gross value of the cash crops grown on Indian owned lands. Non-
Indians derived the other 69 percent.

There are numerous explanations for this phenomena. According
to a 1974 GAO study at Fort Hall, the chief reason for not participat-
ing in high-dollar yield farming (irrigated) was that Indians (1)
could not obtain credit; (2) lacked a knowledge of farming tech-
nology.2^ But this is only part of the explanation. The other lies in the
problem of land ownership patterns brought about by the individual
allotment of Indian lands and by policy decisions of the BIA in years
past which favored leasing out of In(iian land rather than stimula-
tions of large-scale tribal development.

Tribal Enter'pinses

Some tribes have taken the initiative to break this lease cycle and
develop their own tribally operated farm enterprises. The value of
these enterprises is that not only do they provide a greater rate of re-
turn to the Indian community from their land, they also provide much
needed jobs.

At Crow Creek, the tribe has brought 1,500 acres under dry farm
cultivation, principally alfalfa and winter wheat. It obtained funds
for land consolidation through FmHA and enterprise funds from
EDA. The tribe reported that these funds were still insufficient for
complete development of the farm. Eventually, the tribe hopes to have
three units of 2,000 acres each under cultivation. Fifteen hundred
acres would be irrigated. It is estimated that eight people would be
employed full-time on the 60,000 acres, and many more through in-
direct supportive industries. In 1975, t]ie farm enterprise had a net
profit of $48,000 or $35 an acre. If this is compared to the gross cash
rent per acre ($16.89) usually received in South Dakota, probable
return would be more than doubled.^"

The Umatilla farm enterprise manages the Umatilla tribal farm
lands. The Umatilla obtained a loan from the Revolving Loan Fund
to purchase land to start the farm. Income derived from the land is
used to pay for land purchase loans, spraying, fertilizer, and related
expenses. Through 1976, the tribe had 1,360 acres of land under cultiva-
tion which they hope to expand to 6,000 acres. The farm enterprise
has generated a net income which exceeds the average net income re-
ceived by Umatilla lessors.

28 Task Force No. 7, p. 33.

"^ Report to the Subcommittee on Indian Affairs Committee on Interior and Insular
Affairs, TT.S. Senate, "I^and Leases on tlie Fort Hall Indian Reservation in Idaho", GAO;
M.nv 31, 1974; pp. 16-17.

'^ Farm Real Estate Market, Developments Economic Research Service, USDA, July
1975, p. 34.

317

TABLE 3.— TRIBAL ENTERPRISE INCOME VERSUS LEASING INCOME

Year

Total net in-
come from
tribal farm
enterprise

income
per acre

Average in-
come received
by Umatilla
lessor

197^

$77,357

$58. 60
46.53
52.87

$21. 13

1974

61,431

37.12

197')

71, 910

34.08

Source: Superintendent, Umatilla Agency, Pendleton, Greg., 1976.

There are other examples of tribal agricultural development which
did not fall within our survey. Among the most exciting develop-
ments is the Quechan hypodroponic farm. It demonstrates how the
tribe marshaled the necessary grants and loans to buy land and put it
into production using the latest techniques available.

Indian Rangelands

Rangelands and livestock operations are an important part of the
Indian economy. The 1975 GAO report on Indian Natural Resources
estimated 44 million acres existed on Indian reservations and found
that Indian ranchers used about 90 percent of this land.^^ The Bureau
of Indian Affairs in its 1975 Land Use Inventory reported some
15,074 Indian ranching operations accounted for livestock products
valued at $74.8 million.

Conservation and Overgrazing "',

Despite the high amount of reported acreage classified as open
grazing there are serious concerns regarding range management. Ac-
cording to the 1975 GAO study :

An estimated 13 million acres, or 30 percent of Indian rangeland are not
being properly managed and are in poor condition because (1) the range has
been overgrazed, (2) range improvements have not been effectively nsed or
maintained, and (3) limited use has been made of training and education
programs. These problems have existed on some reservations for years. Short-
term, stopgap measures have been taken to relieve the situation but the long-
term problems still remain. An important factor hindering the effective manage-
ment of Indian rangelands on some reservations is the conflict between tribal
and individual Indian desires with respect to accepted range management
practices. (1975 GAO report, pt. 1, p. 31).

About 60 percent of the Indian rangeland is located in two arid
States — Arizona and New Mexico.

Eangeland is classified in four categories: excellent, good, fair, or
poor — ^based on the comparison of the present amount and kind of
forage with that which the range could optimally produce. GAO sur-
veyed seven sample reservations and found conditions ranging from
Northern Cheyenne Reservation with 85 percent classed as excellent
to Ute Mountain with 68 percent fair to poor and Papago with 99
percent so classified.

With respect to the Papago, they reported findings that the range
was grazed to double its capacity and attributed this partially to the

81 1975 GAO report, pt. 1, p. 30.

318

failure of the tribe to adopt a grazing permit system."- They further
conchided that with proper range management, beef production at
Papago could be doubled.^^

The report noted that the Bureau has a trust responsibility for the
management and protection of rangeland resources and cited the
Indian Reorganization Act of 1931 as directing the Secretary of the
Interior to restrict the number of livestock grazed on Indian range
units to its estimated carrying capacity. The report further noted
that for more than 40 years the Bureau has been telling the tribe
that its rangeland is severely overgrazed but in that time neither
tlie tribe nor the Bureau has imposed any control. In explanation of
this. GAO states that "the foremost cause of overgi-azing is a con-
flict between good range management practices and Indian culture and
tradition" which place a high value on animal ownership and opera-
tion without restriction.^*

LEASING

The General Allotment Act of 1887 divided tribally held land into
individual Indian allotments. In the years following the passage of
the Act, support grew for the concept of allowing Indians to lease
their lands. The first general Indian land leasing statute, enacted in
1891, placed a restraint on Indian leasing by permitting Indians to
lease their land only if they were unable to farm it "by reason of age
or other disability." In theor3\ it was felt that if an allottee had the
physical or mental capability to cultivate an allotment, the leasing of
snch an allotment should not be permitted. In practice, however, the
leasing of allotted land fell prey to the influence of white settlers,
tind leasing often became the rule rather than the exception on some
reservations.

Even at the time allotments were made to Indian owners their size
was frequently inadequate to support an individnal agricultural effort.
Plots of 160 acres in sparsely vegetated rangelands were understood
by western cattlemen to be inadequate for ranching activities. Plots of
40 or 80 acres on irrigable land may have been viable in the late 1800's,
but not imtil properly irrigated, and funds for such purposes were
slow in coming.

The first consequence of this fractionation of ownership out of the
tribes into individual tracts was a mammoth loss of land out of Indian
ownership into non-Indian hands. Between 1887 and 1934, approxi-
matelv two-thirds or 90 million acres of the Indian land base passed
out of Indian ownership into non-Indian hands. A secondary con-
sequeiice of the individualization of Indian landholdings was the
additional fractionation of individual ownership among succeeding
heirs.

The final rosnlt of tins fraf^tionation of ownorsliin into small narcels
pud multiple ownership is that maior portions of lands classified as
Indian owned are. in fact, under the dominion and control of non-In-
dians by virtue of their having been leased out, T"^neconomic size plots,
lack of capital, and lack of technical assistance force Indian owners to

'- TMrl., p. S4.
^ Ibid., rP- 34.

319

lease their lands to others. These facts were known to the Bureau of
Indian Affairs in 1934 and were known by Congress. The Indian Re-
organization Act of 1934, was designed to remedy at least a part of
this problem by authorizing acquisition of hands and establishing a
revolving loan fund. However, grossly inadequate sums were appro-
priated for land acquisition, the revolving loan fund quickly became
fully committed, and the problems of heirship and land leasing
continued unabated.

In recent vears, two steps have been taken to try to improve the In-
dian credit position. The Indian Finance Act of 1974 ^^ was enacted
authorizing loans and providing grants for a number of purposes and
the law governing the Farmers Home Administration loan program
was amended to provide for loans to Indian tribes for acquisition of
lands.^® However, utilization of the revolving loan fund at BIA has
not been effectively directed at resolution of the land question and the
loan program of FmHA has serious impediments. More importantly,
neither of these credit facilities has reached to the problem of exces-
sive leasing of lands to non-Indians.

The leasing program has, in many instances, tied up tribal and in-
dividually owned trust land for years and today poses serious obstacles
to tribal initiatives toward economic development and self-sufficiency.
In its 1975 Land Use Inventory, the BIA estimated that Indian owned
resources directly supported some 120,000 jobs by both Indian and
non-Indian. This amounts to 20 percent of the entire Indian service
population recognized by the BIA. A long step toward self-sufficiency
would be taken if all of these jobs were held by Indians — the ownei-s
of the resource.

There are numerous problems with the leasing program aside from
its adverse impact on tribal initiative to develop their own agricultural
enterprises. The most serious of these problems are the inequitable lease
rates that are obtaiiied. Task Force Number Seven has provided de-
tailed documentation of this problem relating case studies from two
specific reservations, the Crow Tribe in Montana and Fort Hall in
Idaho, to illustrate their point.

Gro'iD Competent Leasing

A competent lease is a 5- or 10-year lease of allotted agricultural land
in which the rent is prepaid for the entire term of the lease. For a given
piece of land, the first o-j-ear period was paid in a lump sum when the
land first went into competent lease status. Subsequently, once a year
the current lease is canceled and a new one written, with payment
of rent for the last year of the new lease discounted to the present. De-
cember is the most usual time to cancel and rewrite the leases.

The BIA's role is recording of leases. As long as the allotment is
owned by five or fcAver people, a competent lease is valid. If an allottee
or a group of owners wishes to regain control of its land, ho must wait
5 or 10 years. For poor people, this can be a long wait. Further, for
many of the leases, and particularly for rangeland, even after the 5-
year period, there would be only one potential lessor. INIany of the

^ 25 U.S.C. sec. 1451 et seq,
3«25 U.S.C. sees. 488-492.

320

lessors are larire operators who lease land from many Indians. Many
own fee-patented land interspersed among Indian allotments wliich
tliev lease.

In June 1975, 868,281 acres of 1,205,926 acres of allotted land were
under competent lease. This is 72 percent of the allotted land.

Such leasing constitutes a partial alienation of allotted land. Com-
petent leases can be used as collateral for loans, while trust land can-
not. This feature depends upon the existence of an assignment clause
in the lease. Since Indians use competent leases as collateral for loans,
such leases provide a method of financing, without which, Indians
might otherwise feel forced to sell their lands.

Land Leases on the Fort Hall Indian Reservation

Since 1973, a controversy has raged at Fort Hall over a finding by
the Economic Research Associates of Los Angeles, consultants for the
tribe's overall economic development plan, required by EDA. They
found that Fort Hall Indians failed to get equitable income for all
agricultural land leased to non-Indian tenants. Typical nonreserva-
tion leases in the Fort Hall area averaged 35 percent of gross crop
value, while Fort Hall leases were equivalent to about 2.3 percent of
gross crop value.

In response to this study and a tribal request for an investigation,
GAO conducted an investigation and also found there was a large dis-
parity in lease rates, particularly in ii-rigated reservation land. Irri-
gated reservation land was found to rent at an average of $15.36 com-
pared to $75.41 for high quality irrigated nonreservation land. Dry
farm acreage rentals were approximately equal for reservation/non-
reservation lands, but a substantial disparity was also found to exist
for pasture rental. These findings of GAO were softened, however, by
a finding that certain intangibles caused non-Indian lessors to be less
willing to pay the same rent as for non-Indian land, but these intangi-
bles were not fully identified.^^

In 1975, another firm. Farm Management Co., did another evalua-
tion of leasing at Fort Hall. They calculated the value of cash leases
for both high quality and average quality nonreservation land, thus
taking into consideration the tangible costs raised by GAO, and com-
pared them to the value of cash leases for the same quality land on the
reservation.

TABLE 4.— VALUE OF CASH LEASES"

Nonreservation land Reservation land

Higli quality Average quality High quality Average quality

Potatoes Grain Potatoes Grain Potatoes Grain Potatoes Grain

Value of cash lease $64-$80 $40-$60 $26-$39 $9-$19 $35 $35 $35 $35

Average 56- 70 17- 24 35 35

' Western Farm Management Co., "Analysis of Present Leasing Practices" and the effect on rental rates of tribal agri-
cultural land, funded by EDA, Technical Assistance Grant No. 07-6-01534, pp. 52-53.

^ Report to the Suhcommittee on Indian Affairs, Committee on Interior and Insular
Affairs. P.S. Senate, "Land Leases on the Fort Hall Indian Reservation In Idaho," GAO
May 31. 1974.

321

Since potatoes are normally rotated every other year with a grain
crop, the average cash rent is $56-$70 on the better soils and $17-$2'4
on the sandier soils. After the -first reports of ERA and GAO, the
tribal council increased the standard rent per acre from an average
of $15 to $35 an acre. However, this fixed fee allows the better lands
to stay in farming at a bargain price while the poorer or marginal
lands were abandoned because of lower yields, greater fertilizer ex-
pense and difficulty in irrigating this type of soil. Using standard lease
rates for the entire reservation has caused the tribe to receive less rent
than it should for better farmland and the poorer land is left idle.

In 1974, the Shoshone-Bannock Tribes at Fort Hall commissioned
an additional comprehensive study by an economist, Mr. Jack Peter-
son, under a HUD 701 planning grant. This study published in 1974,
and updated in 1976, confirms the continued inequitable leasing
practices.^^

Leasing practices have provided Indian landowners with very sub-
standard returns for the following reasons :

Fixed rate rentals on Indian land are substantially less than
on non-Indian land.

Indian fixed rate rentals are preferred over crop share rental.

Indian lessors have no recourse when leases are violated.

Leases are for lengthy periods of time.

Lease regulations for proper conservation practices are unen-
forceable.
What is the alternative to leasing? On several of the sample reser-
vations, particularly Umatilla and Crow Creek, tribes have consoli-
dated tracts of trust land and are farming it. This would solve a
multitude of problems. First, efficient-size units could be created.
Second, the tribe has better access to capital and technical assistance
than do individuals. Third, returns are usually higher than leasing
and are directly received by the tribe.

These criticisms related equally to farm and grazing lands. The
lack of readily available capital and the lack of a sound policy di-
rected toward land consolidation, acquisition, and termination of these
present lease pi-ograms combine to thwart tribal development and
economic self-sufficiency.

Credit and Technical Assistance

Aside from fractionated land ownership, the major obstacles to
development of a viable Indian farm economy are inadequate credit
and lack of necessary technical assistance.

The Indian farm operator has three major sources of credit:
commercial banks. Farmers Home Administration, and the BIA
Revolving Loan Fund. Both commercial banks and the FHA require
acceptable collateral, and as GAO reported they were reluctant to
accept Indian land as collateral because of its trust status. In review-
ing new BIA revolving loans made during fiscal year 1975, it appears
that the bulk of individual loans were made for purposes other than

^ .Taok, Ppterson. Futures, A Comprehensive Plan for the Shoshone-Bannock Tribe,
funded by a 701 Planning Grant, HUD, 1974, p. 14.

322

agriculture. Only 16 percent went for agriculture and livestock
activities. (See table 5.)

Table 5. — Distributwn hy typo of new BIA revolving loans to
individuals^ fiscal year 1975

Type of loan Percent

Agriculture 15. 9

Farming 8.4

Livestock 7.6

Business enterprise 22. 7

Consumer credit 11. 3

Ediication 0. 4

Fisheries ^ 1. 3

Land 5. 8

Housing 34.6

Refinancing 7.9

Total percent 99.9

Total $15, 315, 532

Technical Assistance

The technical assistance and agricultural advisory services available
to Indian farmers is supplied through a cooperative BIA/USDA
eifort. Under a memorandum of imderstanding between the Extension
Service and the BIA, the Extension Service provides leadership and
direct assistance to State extension serAdces in planning, conducting,
and evaluating extension programs in those States where the BIA has
contracts with State extension serA-ices. Eunds for this work are trans-
ferred directly from the BIA to the State extension services.

However. TJSDA officials have complained that the actual amount
of technical assistance and advice provided to Indian operators has
declined in recent years because the BIA is reluctant to seek increased
appropriations. The BIA extension budget has remained small and
virtually constant since 1971.

Table 6. — Extension Service BIA funds directed to State extension

service

1971 $1, 748, 331

1972 1, 877. 2.32

1973 1.732, 737

1974 1, 695. 020

1975 1, 709, 633

Source : USDA.

The nature of fiscal funding makes ]6b security uncertain for exten-
sion agents. This affects the quality of personnel that work in the pro-
gram. For most, it is a temporary job. USDA would prefer direct
appropriations. This would increase the level of funding and promote
job security. Ultimately, the funds should be given directly to the tribe
so that they may contract with those who will supply the best tech-
nical assistance.

EECOMMEISTDATTOXS

Tlie Commission recommends that:

1. Tribes be encouraged to develop comprehensive plans for long-
term economic development premised on maximum Indian utilization

323

of Indian-owned resources. Recommendations for appropriation of
grant moneys to tribes for planning purposes appears in chapters 5
and 6 of this report.

2. Congress enact legislation which will facilitate tribes in acquir-
ing consolidated land areas sufficient to support efficient farm and
cattle industries, Specifically, Congress :

a. Amend existing Federal laws relating to leasing of indi-
vidual trust allotments to provide that tribes have a "first right
of refusal" on leasing of such lands.

b. Elsewhere in this chapter it is recommended that Congress
establish a special fund for the purpose of aiding tribes in pro-
grams of land acquisition and consolidation. In addition to use
of these funds for outright acquisition of ownership, tribes be
authorized to draw from this fund in order to acquire lease-
hold rights in individual allotments. Such authorization must
be designed to accommodate the special credit needs of individual
allottees which cause them to annually renegotiate what purport
to be long term leases.

3. The Bureau of Indian Aifairs revise its policies regarding leas-
ing of agricultural lands in the following respects :

a. Rental terms correspond to general lease terms of com-
parable grade lands hekl by non-Indians in the surrounding
area. Where practicable rentals should be premised on percentage
of crop values rather than fixed rates per acre.

b. Leases contain strong conservation requirements witli penalty
provisions adequate to assure compliance by lessees.

c. Leased properties be inspected as frequently as necessary
to insure compliance with lease terms.

d. Tribes be encouraged to contract with the BIA to perform
inspection and enforcement duties.

4. The BIA and the tribes develop long-term range management
plans to realize the potential benefits of a renewed, high producing
grazing range. These plans provide for: (1) range and soil inventories
to determine current range capacity; (2) timetables for adjusting
herd size to capacity; (3) grazing permit systems; (4) development
and prudent use of range improvements to raise the carrying capacity;
and (5) education programs to promote good range management
practices.

In addition, these plans evaluate the short term economic impact
which diminishment of herds will cause to individual Indians during
the period necessary to regenerate such rangelands. A program simi-
lar to the past "Soil Bank*' program should be instituted to pi'ovide
incentive to individuals to reduce their livestock holdings.

5. The Bureau of Indian Aft'airs implement programs necessary
to provide technical assistance and training to tribal i^eople to aid
them in adopting modern farming and range management. Spe-
cifically, the BIA :

a. Review its funding requests for support of State extension
Services and seek additional funds for this purpose as api^oar
necessary.

b. Develop vocational education programs to be offered at the
reservation level to train adults and students at the secondary

324

educational level in techniques in atrricultnre, range man-
agement, and other subjects relevant to natural resource
development.
6. Congress hold oversight hearings to ascertain the adequacy of

the current funding level of the revolving loan fund for purposes of

agricultural and livestock development.

Timber
economic potential for tribal development of tijiber resources

Timber has the potential for being one of the most important Indian
resources for development of reservation economies. I^nlike mineral
resources, timber is a renewable resource, and, therefore, can con-
tribute indefinitely to tribal revenues. Excluding Alaska, the total
standing timber inventory in Indian country is estimated at 40 billion
boaid-feet.

Indian forestry lands are the largest private holding of forested
and commercial forest land in the United States. One-fourth of all
Indian lands are forested, and 10 percent of all Indian lands are com-
mercial forest lands.'^ Timber contributes from 25 to 100 percent of
tribal revenues for 57 reservations; more than 80 percent on 11 of
these reservations. Income from stumpage (standing trees) alone for
1974 was $73 million.

Nevertheless, at present the potential yield of Indian timber lands
is not being achieved. It is estimated that the $73 million derived
from stumpage sales was 20% less than could have been obtained if
harvesting had matched the annual allowable cut (AAC). In some
areas harvesting on Indian lands was 65 to 75 percent below annual
allowable cut. It is estimated that between 1970 and 1974 the dollar
loss to tribes from insufficient logging was $25,486,767.

This problem is compounded by the fact that the BIA has failed
to implement reforestation and precommercial thinning programs for
many tribal forests. (See discussion, infra.) If the AAC is not adjusted
for those tribal forests affected, it will inevitably (and soon) deplete
the resource. Ironically, the BIA, by its inflexibility, fails in both re-
spects by setting the AAC too low for some forests and too high for
others.

An examination of the situation on the Quinault Reservation in the
State of Washington provides a classic insight into the revenue poten-
tial of timber to Indian people, and a textbook study of the problems
of maximizing timber revenues and providing sound forest manage-
ment. The annual allowable cut on the Quinault Reservation is 200 mil-
lion board-feet. Actual harvest in 1975 was only 122 million board-feet.
The Quinault estimate that a properly managed forestiy program
would yield for stumpage alone an income of $22 million in 1976 prices
for the Quinault Tribe. Development of tribal forestry management ca-
pabilities, logging operations, sawmills, and manufacturing plants us-
ing sawmill products would generate 1.800 jobs in the timber industry
alone. It is estimated that for eveiy job in the timber industry, 1.8

2» TT.S. Congr.. Hoias*^. "Department of the Interior and Relaterl Agencies Appropriations
for 1977." hearina; before a subcommittee of tlie Committe on Appropriations, part 6,
Mar. 3, 1976, p. 1.50 (94th Cong., 2d sess.).

325

jobs are establislied in related industries. Maximization of the Quinault
timber industry would thus translate to some 5.360 jobs throughout,
the Quinault region, clearly benefiting both Indian and non-Indian
alike. Total value of economic activity generated would be in excess of
$270 million. These figures and the fact that timber is a renewable-
resource indicate the tremendous potential for economic development
that Indian forestiy offers.

However, unless proper forest management techniques are instituted
immediately, the long-range potential of this most important tribal
resource is in serious jeopardy. In a special study submitted to tho
Commission, the Quinault tribal forest manager predicts that timber
harvests on that reservation could plummet from 140 to 160 million
board-feet to 5 to 20 million board-feet by 1986."

BIA MAXAGEMEXT OF IXDIAX FORESTRY*^

The trust responsibility of the Federal Government for Indian
forest resources is administered through the BIA forestry- program.
GAO reports have established the fact that the trust responsibility has
not been diligently and effectiveh^ carried out. "Indian forest lands
are managed less intensely than the Government manages its own na-
tional forest properties and compare even more poorly with manage-
ment of industrial tree farms," Chief Forester Wilcox stated in a
1970 interagency memo. This observation is clearly supported in a field
study reported in a 197r» GAO report comparing forestry manage-
ment practices at the Wenatcliee S'ational Foi'est witli those on the
neighboring Yakima Reservation in the State of Washington. A 1973
GAO study stated that the Bureau does not adequately :

1. Determine annual harvest volumes ;

2. Update timber management plans for reforestation and stand
improvement :

3. Obtain information required to minimize the impact of
timber harvesting and road construction on other forest resources.

A 1975 GAO report to the Senate Interior Committee ^- reiterated
the same points of the 1973 report, as well as others, concluding that
the Bureau has not adequately :

1. Increased the volume of timber harvested to the level per-
mitted under the principles of sustained yield.

2. Improved the effectiveness of precommercial thinning and
reforestation programs.

3. Performed commercial thinning.

4. Harvested adequate levels of dead and dying timber.

5. Established specific goals and action plans for identifying
and accomplishing needed forest management work.

6. ^lade substantial effort to acquire the personnel and funds
needed to full}' manage the Indian forest.

Thinning and reforestation are essential to the maintenance of
commercial forest. In 1973, "thinning accomplishments for all res-

^oTim LaFrancp. "A C.tfp Study of Land Man.T^pmpnt and Land Tse PTanninsr on
Quinault Indian Reservation", a special report to Task Force No. 1, American Indian
Policv Review Commission, Washington. D.C. Summer 1070.

"GAO. "Indian Natural Resources: Onportur.ities f^r Imirovefl :Nran.T'Pment <ind Tn-
crea.;efl Productivity, part I, Forest Land, Rangeland, Cropland, Aus 18 1975 pp 1 11 '>r

*^ Ibid., at pp. 9, 19, 22, 24. , . 1 1 . . . - .

326

ervations eqiialod only about ?> percent of the total amount of pre-
'oommercial thinnins; needed (backlog) and the reforestation
accomplished equalled only about 4 percent of reforestation need,"
(GAO study.) The BIA has 173,365 acres needing reforestation and
738,593 acres needing timber stand improvement. This backlog is
;OTowing at a rate of 7,000 acres per year.*^

The i975 GAO report criticizes the Bureau programs for harvesting
of dead and dying timber in the following terms :

On the Colville Reservation, 47 MBF, which is equal to 39% of the AAC
harvest, dies annually and on Yakima, 12 million MBF dies annually. The
Bureau has no program for systematically harvesting this timber, and therefore,
a large volume is not harvested and deteriorates to the point where it can no
longer be used.

The actual economic loss is not projected, but clearly it is significant.
Harvest management under BIA does not follow basic principles of
revenue maximization.

Contrary to the most respected principles of good forest economics,
the Bureau policy favors equal annual harvests irrespective of market
prices. Logically, more timber should be harvested when prices are
high, less when they are low as long as one attains within a single
decade the optimal timber cut for forest growth as determined by a
computerized timber management program. Added to the fact that
the BIA sets equal timber cuts irrespective of market prices, the BIA
is unable to accurately calculate the "annual allowable cut" because
of its reliance on two old and simple formulas to determine what cut
is "allowable." The formulas make no use of economic concepts such
as the rate of interest, transportation costs, the price of timber rela-
tive to other goods, or the value of land in alternative uses. Instead,
the BIA used a predicted future growth rate of the forest. But, the
BIA's predicted rates for cutover land are invariably higher than
actual rates because they are predicated on the assumption that the
Bureau will provide expert management. Yet, by its own admission
during appropriation hearings, BIA is not completing the forest
management tasks it has set for itself.

Another outdated BIA practice is the method for adjusting stump-
age prices. During the timber sale period, changes in lumber prices
should, by normal competition, cause stumpage prices to change. The
BIA tries to adjust the stumpage prices using the "Western Wood
Products Lumber Price Index. The error in this procedure is that
liunber scale and log scale are not the same any more. Technical
progress and changing utilization standards have enabled mills to
obtain more lumber per log than formerly. Currently, lumber scale
is 1.3 to 1.5 times smaller than log scale. If the lumJ3er price index
rises by $10 there is an increase in revenue of $13 per thousand log
scale to the mill if we take the 1.3 value. But under the BIA approach
the stumpage adjustment formula figures the 50-50 split between
mill and tribe against the $10 lumber price index. So the mill receives
an additional $8, the tribe an additional $5, rather than the tribe
and the mill each receiving $6.50.

" Task Force No. 7, final report, AIPRC, at p. 54.

327

DE^-ELOPilEXT OF TRIBALLY MAXAGED FORESTRY PROGRAMS

The economic potential of Indian timber resources is very encour-
aging. Indeed, it is estimated that tribes with medium to large stands
of timljer have the capacity to achieve economic self-sufficiency based
on their timber resources alone for, as cannot be overemphasized, tim-
ber is a renewable resource. With proper management and with the
development of related industry, it can supply an economic base to
certain tribes for the indefinite future. In addition, maximization of
the Indian timber potential will benefit nearby non-Indian commu-
nities through related industries as well as the Nation through assuring
continued supply of a resource wliich is in growing short supply'.

A major problem confronting the development of proper forest man-
agement programs is that of individualized ownership of Indian
lands, and particularly the problems associated with fractionated
heirship interests. This problem is more prevalent at the Quinault
Reservation than others. Individual parcels of trust land are subject
to long-term timber contracts which do not require reforestation or
conservation practices, and which do not assure a proper return on
the value of the timber harvested. In matters of fractionated heirship,
a further complication arises from the fact that many heirs issued to
the BIA open-ended powers-of-attorney which authorize the BIA
to enter into leases of their lands for the indefinite future. Many of
these powers-of-attorney are quite old, the number of heirs is sub-
stantial, and terminating these documents by having the original
grantor rescind them is difficult if not near impossible.

The need to develop a comprehensive forestry management program
for Indian country is obvious. It is vitally important that this pro-
gram center around tribal control and management. BIA administra-
tion is hampered by lack of goals and objectives in forestry develop-
ment. This deficiency indicates that the BIA has no cohesive approacli
to forestrv^ management. It is also not in the position to manage all
the tribes' resources within their varied ecological contexts. Only the
tribes should determine their goals and only the tribes can oversee
the exploitation of all reservation resources with due consideration
for external efforts. The BIA does not have the direct interest in the
enhancement of tribal resources which tribal members have. Due to
the poor reputation of BIA forestry and the lack of opportunity for
advancement, it is almost impossible to recruit highly qualified per-
sonnel to Bureau forestry management. A vicious circle of poor per-
formance results is perpetuating tremendous losses for tribes as timJ^er
resource owners which results in perpetuating a dependency economy.

Training in more technical aspects of forestry development could be
offerofi in tribal or intertrilial technical schools and community col-
leges. Tribal members must be encouraged to concentrate on scientific
and technical subjects of immediate use to the tribe when they pursue
advanced degrees.

The tribes need to develop a timber industry, not just a logging
operation. This would include growing timber as well as development
of processing facilities, but would have to recosnize the importance of
maintaining competition for Indian timber if dollar benefits are to be

328

maximized. Total restriction of timber operations to tribal enterprises
can cause a decrease in stumpage value which, in turn, could result in
lowering of income to tribes. In addition, denial of access to private
enterprises may result in cutting off Indian access to private expertise.
A special task force should be formed comprised of experts in the
areas of forest management to evaluate the present BIA forest man-
agement program and develop a modernized comprehensive forest
management program for the future use of the Bureau and the tribes.
The members of this task force should be drawn from the public and
private sectors of the forestry industry and should include timber
managers of Indian tribes and the BIA.

RECOMMENDATIONS

The, Com/mission reccrmmieiids that:

1. In order to clarify the legal authority for Indian tribes to regu-
late, manage, and sell their own tribal resources. Congress amend : 25
U.S.C. 406— Sale of Timber on Lands Held in Trust ; and 25 U.S.C.
407 — Sale of Timber on Unallotted Lands.

25 U.S.C. ^06 Sale of Timber on Lands Held Under Trust

Amend sec. 406(a) by inserting a period after Interior in
line 3 and striking the remainder of the sentence and the fol-
lowing sentence.

Amend sec. 406 by adding a new paragraph at the end of
the section as follows ;

(g) Bonds for performance and reclamation pursuant to contracts
under this section may be required by the Secretary or the owner of the
timber in accordance witli provisions under Sec. 407.

25 U.S.C. J,07 Sale of Timher on Unallotted Lafnds

Amend sec. 407 by designating the present section as para-
graph (a) . In line one after "sold" inseit "by authority of the
tribal council with approval of the Secretary of Interior".
In line four insert a period after Interior and delete the re-
mainder of the paragraph. At the end of the paragraph in-
sert a new sentence : "Regulation of timber sales under this
section and sec. 406 may be superseded by regulation pursu-
ant to tribal constitution, charter, or ordinance, provided that
such regulation is not inconsistent with the provisions of this
section."

Amend sec. 407 by adding a new paragraph (c) to read as
follows :

(c) Nothing in this section shall prevent the adoption hy the tribal
council of regulations for the management of natural resources within
reservation, and after such regulations have been approved by the Sec-
retary of the Interior they shall be controlling and regulations by the
Secretary of the Interior under this section which may be inconsistent
therewith shall no longer be applicable.

2. To resolve the difficult problems in management in the continuing
waste of Indian timber resources occurring because of tlie fractionated
heirship pattern of ownership of forested allotments Congress amend
existing Federal law relating to :

329

(1) Sale of timber on trust allotments to provide a first option
to the tribes.

(2) Authority to the tribe to acquire existing powers of at-
torneys now held by the BIA upon a showing that the affected
allotted lands have been included in a comprehensive tribal forest
management plan.

3. The BIA make a study of its existing forest management prac-
tices and regulations.

A special task force be formed comprised of experts in the
areas of forest management to evaluate the present BIA forest
management program and develop a modernized comprehensive
forest management program for the future use of the Bureau
and the tribes. The members of this task force should be drawn
from the public and private sectors of the forestry industry and
should include timber managers of Indian tribes and the BIA.

4. In order to provide for reforestation and regeneration of the mil-
lions of acres of Indian forest which have been clearcut by private
companies under sales contracts approved by the BIA, the Congress
appropriate funds to enable those tribes affected to undertake the
necessary regeneration and reforestation programs.

5. Congress enact legislation to permit tribes to contract with pri-
vate enterprises or the Forest Service for timber management.

Water Eesoukces

The survival of Indian tribes as economic units in the arid and
semiarid Western States requires the protection and enforcement of
their water rights. The importance of water to the Indians has been
well stated by Senator Kennedy :

(to) American Indians, land and water have always led the list of those mat-
ters deemed essential for both present livelihood and future survival. For Indi-
ans know that any threats to or dimimition of their land and water rights may
constitute threats to their very existence."

A formidable body of law favorable to the American Indian people
has been developed which, if properly administered and applied, will
protect the Indians against divestiture of their water rights. In the
past, however, these rights have been neglected and violated, thereby
stifling tribal goals of self-sufficiency through economic development.*'

INDIAN WATER RIGHTS

Indian water rights were recognized by the Supreme Court in the
landmark case of Winters v. United States, from which emanates the
body of law commonly referred to as the Winters doctrine.*** That
doctrine holds that the Indians have prior and paramount rights to all
water resources which arise upon, border, traverse, or underlie a res-
ervation in the amount necessary to satisfy the present as well as
future needs of the Indian reservations.

1^ Vol. 122, Con?. Rec, p. S6339, May 3, 1976. 94th Cong., 2(1 sess.

^ For a good discussion of Indian water rights, see Educational Journal, Institute for
Indian Law, vol. 2, Nos. 5, 7, and 8. "The Indian Water Wars" by

the Development of
Steve Nlekeson.

« Winters v. United States, 207 U.S. 564 (1908).

92-185 — 77-

330

Winters rights are owned by the Indian tribes and should, therefore,
be distino-uished from other federally reserved rights. The only role of
the United States is that of a trustee for the tribe. This was precisely
the point of the decision in Wmters v. U.S. the lead case on the subject :

The reservation was a part of a very much larger tract which the Indians had
the right to occupy and use and which was adetpiate for the habits and wants
of a nomadic and uncivilized people. It was the policy of the Government, it was
the dps;ire of the Indians, to change those habits and to become a pastor and
civilized people. If they should become such the original tract was too extensive,
but a smaller tract would be inadequate without a change of conditions. The
lands were arid and, without irrigation, were practicall.v value-less. And yet,
it is contended, the means of irrigation were deliberately given up by the Indians
and deliberately accepted by the Government.

The contention that these rights were given up by the Indians was
firmly rejected by the Court.

In applying the Winters doctrine, it is important to note that rights
to the use of water in the Western States are interests in real property,
having all the components of a freehold estate.

The doctrine of "prior appro])riation" governs water use in most
Western States. The extent of tlie water right is determined by the
amount of water actually put to use and the date when that use first
commenced. The significance of the Wmters doctrine is that neither
of these criteria are applicable to the determination of Indian water
rights. Not only do tlieir rights predate those of the non-Indian users,
they are open-ended rights not limited to amounts already put to use,
but rather are dependent upon the future needs of the tribes.

The priority date of the Indians' Winters doctrine rights to the use
of water is of vital importance. For example, on the tributary streams
of the Upper Missouri River Basin, such as the Milk River, the Big
Horn River, the Tongue River, and others, the demands for water far
exceed the available supply, thereby resulting in a gross overappropri-
ation of th-ose streams. Consequently, the priority rights of the Black-
fe^et, the Fort Peck, the Wind River, the Crow, and the Northern
Cheyenne Indian Tribes in the States of Wyoming and Montana are
gravely imperiled unless their fidl priorities are protected.

The priority date of the Indian water rights may depend on wheth-
er the reservation was created by treaty or Executive order. Where a
reservation was established by treaty, as in the Winters case, the tribes
impliedly reserved the right to all the water necessary to fully develop
their reservations, and arguably these rights date from time imme-
morial. A different situation may exist with respect to Executive order
reservations, where title was returned from the United States to the
Indians. For these reservations, the priority dates governing the In-
dians' Winters doctrine water rights are determined as of the date the
reservation was created. It should be noted, however, that Winters
rights for treaty and Executive order reservations have equal dignity
and are not subject to appropriation by the State.

In the years following the Winters case, many cases arose in which
the Circuit Courts of xVppeal applied the Winters doctrine for the
purpose of protecting the Indians' water rights. In Conrad Invest-
ment Co. V. United States., the Ninth Circuit Court of Appeals relied
on that doctrine as its basis for holding that the Blackfeet Tribe in
Montana possessed water rights in a river bordering its reservation in

331

amounts sufficient to meet their future needs of irrigation and other
useful purposes.^^ That same court reached a similar conclusion in
Vnitecl States v. Walker River Irrigation District^ involviuii- Indian
chaims to a stream which flowed across its reservation.*^ In that case,
the court emphasized the following :

The power of the Government to reserve * * * water (to Indian tribes) and
thus exempt (such waters) from subsequent appropriation by others is beyond
debate/'

Courts liave also established the criteria governing the amount of
Avater which may be reserved by Indian tribes. In United States v.
Ahtanum Irngation Distnct^ the Court of Ajopeals for the Ninth
Circuit addressed the question of the amount of waters reserved and
held the amount to be that which is necessary to meet the Indians'
"present and future water requirements"-.'^° The Supreme Court elab-
orated upon this general rule in the more recent and vitally important
case oi Arizona v. California:'^ In addition to reaffirming the 'Winters
doctrine, the Court in that case held that the standard of measurement
to be used in determining the Indians' water rights should be the
amount of water necessary to * * * irrigate all the practicably irri-
gable acreage on the reservations." ^^

Despite this well-established body of law favorable to the Indian,
there is a continual challenge to their Winters rights by the Federal
Government, the States, corporate and municipal entities, and non-
Indian landowners. Great political concern and hostility toward In-
dians and their rights is frequently engendered as Indians assert their
legal claim against State and local water interests.

VIOLATIONS OF INDIAN" WATER RIGHTS

A formidable body of law protects the Indians' water rights, and
proper enforcement and application of the law should preserve these
rights. However, as evidenced by the following cases, the Interior and
Justice Departments have often in the past been lax in enforcement
of these rights and have not infrequently adopted adverse positions,
contributing to the erosion of the Indians' water rights.

For example, in Colvllle v. Walton, et al, a case initiated in 1970 by
the Colville Confederated Tribes of Washington, the Justice and In-
terior Departments intervened and adopted a position adverse to that
of the Colvilles. In essence, the Department claims the Secretary of
the Interior has exclusive jurisdiction over the water resources on the
Colville Indian Reservation and therefore has the right to control all
allocation of water within the I'eservation and apparently the duty to
allocate the water to non-Indian users on the same basis as it is al-
located to Indian users. The authority relied upon for the claimed
"exclusive jurisdiction" is 25 U.S.C. sec. 381. That statute states that
the Secretary of the Interior may, when water is required for irriga-
tion on an Indian reservation, ]3romulgate rules and regulations "to
secure a just and equal distribution" of the available water among the

*' Conrad Investment Co. v. United States, 161 Fed. 829 (9th cir. 190S).

■•^ United States v. Walker River Irrigation District, 104 F. 2d 334 (9th cir. 1939)

" Ibid., at 336.

^'' United States v. Ahtanvm Irrigation District, 236 F. 2d 321, 326 (9th cir 1956)

" Arizona v. California, 373 0.2 546 (1963).

s= Ibid., p. 600.

332

^''Indkni.s residing upon such reservation^ [Emphasis supplied.] This
case has now been pending for some 7 years. Recently Justice asked
and the Court granted a 1-year extension of time, thus delaying even
further the efforts of the tribe to adojit their own water code. The
Justice Department has now asserted tlie same argument in the Bel
Bay case now pending in the western district of the State of
Washington.

The Government is also asserting paramount authority over Indian
water rights in the Upper Missouri Basin in matters involving sale
of water. This captured the attention of Congress which held compre-
hensive hearings regarding efforts of the Secretary of the Interior and
the Corps of Engineers to invade the Indians' water rights." In all,
the Secretary of the Interior has entered into contracts for the sale
of approximately 712,000 acre-feet of water of the Big Horn River
and its major tributary, the Wind River. Without those water re-
sources, both the Crow and the Wind River Tribes will be denied any
possibility of economic growth.

The Rights Are Legally Adequate to Meet the Future Requirements
of the Indian Communities

In the above cited Ahtanu?n decision involving the Winters rights of
the Yakima Indian Nation, the issue arose as to the method to which
there should be adherence in measuring the Indian rights. On the-
subject, the Court said :

This brings us to a discussion of the question of quantum of waters reserved..
It is obvious that the quantum is not measured by the use being made at the-
time the treaty reservation was made.^

These succinct terms used by the Court in this most pertinent
declaration :

The reservation was not merely for present but for future use. Any other-
construction of the rule in the Winters case would be wholly unreasonable.

It was then that the Court in^these terms reiterated and reaffirmed
this basic tenet of the Winters doctrine, as enunciated in the carriei"
Conrad decision: "The lands within these reservations are dry and
arid, and require the diversion of waters from the streams to make them
productive and suitable for agriculture, stock raising, and domestic
purposes. What amount of wat^- will be required for these purposes
may not be determined with absolute accuracy at this time ; but the
policy of the Government to reserve wliatever water of Birch Creek
may he reasonably necessary, not only for present uses, but for future
requirements, is clearly within the terms of the treaties as construed
by the Supreme Court in the Winters case." ^^

Tliere was thus established the important criteria which contem-
plates a supply of water for the Indian needs to meet their then and
future water requirements. In 1960, those criteria, which had been
applied to treaty reservations in Winters, Conrad, and Ahtanum, were
intensely and extensively reviewed by the Special Master appointed

'^ Hearing on the sale of water from Upper Missouri River Basin by the Ferteral Govern-
ment for the development of energy, before the Subcommittee on Energy liesonrces and
Water Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st.
sess., pt. 1 at p. 10 (1975, hereafter referred to as Sale of Indian Water).

« United States v. Ahtanmn Irrigation District, HSC. F. I'd 321, 326 (CA 9 — 195G).

55 Conrad Investment Co. v. United States. 101 Fed. 829, 832 (CA 9 — 1908).

333

by the Supreme Court. On the nature, measure, and extent of Indian
Winters rights to the use of water, the Court had this to say in approv-
ing the report of the Special ^Master in regard to the Wmte7's doctrine
and its application to future water requirements :

We also agree with the Special Master's conclusion as to the quantity of water
intended to be reseiTed. * * * tlie water was intended to satisfy the future as
well as the present needs of the Indian Reservations * * *."

There have thus been established by judicial precedent these aspects
of great importance in the application of the concepts of the Indians'
Winter-^ doctrine rights to the use of water :

(a) They underscore the great need for water;

(b) They underscore that need is for present and future Indian
requirements; and

(c) They underscore the intention that the Indian reservations
are to be continuing, viable, economic comnuinities utilizing the
necessarA' quantities of water to achieve those precise and most
desirable ends.

liidian and State Rehitions Involving Indian Winters Doctrine '
Rights: The Akin Decision

The Al'in decision epitomizes the conflicts of interest that pervades
Pederal prote<?tion of Indian resources. In that case the Department of
Justice sought a ''determination of water rights * * * as trustee for
•certain Indian tribes and as owner of various non-Indian government
claims.-- ^'^ The Justice Department is purported to represent claims
of the United States which are necessarily in conflict with the Winters
■doctrine rights of the Indians there involved. As has been reviewed,
the Indian rights and those of the Federal Government are vastly
different. Indian rights are private in character, retained by the tribe,
or granted to the tribe for its exclusive use and benefit.^^

Substance of the issues in Akin is that the Congress of the United
States subjected the Indian Winters rights to the use of water to the
jurisdiction of State courts and State tribunals for the determination
and adjudication of those rights. By that decision, the Supreme Court
made applicable to the Indian Winters rights to the use of water the
so-called McCarran Act."'* That ruling placed the Indian water rights
within the jurisdiction of State courts.

In hearings before the U.S. Senate after the decision in the Akiri
case, Mr. Peter Taf t, Assistant Attorney General of the United States,
testified as follows :

Supreme Court cases, as much as 100 years ago, have noted the fact that there
has been a historic hostility between the States and the tribes and that, indeed,
it is the Federal interest that has protected the tribes wherever they may
be. * * *

I would like to point out also, a difficulty we have in keeping uniformity of
interpretation of Indian rights. There are probably 15 or more States in the
West. If Indian rights are to be adjudicated in the State courts, in effect you
have the potential of 15 different interpretations.

M Ari::ona v. California, 373 U.S. 546. 600 (1963).

^" Colorado River Water Conservation District et al. v. United States, 74-940, 74-949 ;
Akin et al. v. United States, 424 U.S. 803 (1976).

s» See 1 Wiel, Water Rights in the Western States, p. 301.
"43U.S.C. 666.

334

Thns, the States have now been authorized to adjudicate one of the
most heated and controversial issues dividing: tribes and States. The
one-sidedness of this arrangement is readily apparent to all and
Indian water rights are truly now in serious jeopardy.

ECONOMIC DEVELOPMENT AND UTILIZATION OF WATER RESOURCES '^'^

The purpose here is to chronicle the importance of water to tribal
existence.

Survival for the American Indian ultimately boils down to the re-
lationship he bears to the lands to which he has been confined. Wliite
Americans have always moved to new locations once the resources
were exhausted. Not so with the Indians — the maintenance of viable
tribal structures and cultures is geared directly to the land base and
the development and utilization of their resources contained therein..

The demands of national energy and the scarcity of water supply
are closing in on the American Indians at a rate which heightens the
need for protective legislation that, as applied to Indians and their
water rights, will sufficiently embrace Indian intangibles. To the full-
est extent possible, develojiment should recognize a role for the special
identification Indians have with their land, water, and related natural
resources.

History bears testimony to Indian use of water for sustenance as
they shaped their lives to tlie demands of the varying environments..
When an indigenous people called the Hohokams occupied lands in
the Gila and Salt River Valleys over 2,000 years ago, they diverted
water by means of canals which even now are recognized as highly
refined engineering accomplishments. They long ago demonstrated,
that water applied to the land was essential if communities were to bo
maintained and to have more than a rudimentary culture. They
demonstrated tlie need for economic development which they under-
took as a means of survival.

Like the Arizona Indians, the Pueblos of the Rio Grande Valley
adjusted to a desert environment by using water to promote agricul-
tural development. ]Mohaves, Yumas, and Chemehuevi likewise
adapted their lives to the surrounding desert by occupying lands on
both sides of the Colorado River. In tlie "Great Colorado Valley,"'
as early explorers referred to it, the soldiers and missionaries first
encountered these Indians. Years later, Lieutenant Ives, in his 1858
explorations on the Colorado River, reports the Quechan Indians us-
ing water to raise their crops. Of the Mohaves, Ives said :

It is somewhat remarkable that these Indians should thrive so well upon the
diet to which they are compelled to adhere. There is no game in the valley. The-
fish are scarce and of inferior quality. They subsist almost exclusively upon
beans and corn, with occasional watermelons and pumpkins, and are as fine a
race, physically, as there is in existence.

Those Mohave crops were raised by the Indians who planted the
lush river bottoms as soon as the perennial overflov/ had receded,
thus using the natural irrigation furnished by the Colorado River.
It goes without saying, that the importance of the rivers to the in-

""■Task Forcp No. 4, final report, American Indian Policy Review Commission, Wasliing-
toD, B.C., July 1976, p. 153.

di<renoiis cultures throughout the "Westei u United States was not lim-
ited strictly to agricultural purposes. For example, the^ Northern
Paiutes, in'the vast desert areas of the present State of Xevada, de-
pended upon fish taken from Pyramid Lake and the Truckee River
as a source of sustenance. This was long before the so-called "dis-
covery'' of that lake by Fremont in 1844.

Fisheries, to the Indians of the Pacific Northwest, "were not much
less necessary to the existence of the Indians than the atmosphere
they breathed." Salmon and other fish taken from the Columbia Eiver
were always an important item of trade among the Indians, as reported
by Lewis and Clark. And, of course, rivers were not only the source
of sustenance for the American Indians, but they were also the arter-
ies of crude commerce and travel. Quite significantly, when transition
from their traditional way of life was forced upon the western Indians,
they relied upon their streams and rivers as a source of sustenance and
the means to adopt the new ways of living. The Yakimas, in their
transition from a nation given over largely to hunting and fisliing,
were the first in the State of Washington to undertake to irrigate their
meager gardens.

A central factor in establishing and protecting Indian water rights
is the beneficial use of it. Water is so essential to the economic develop-
ment and social sui'vival to the American Indian that, without it,
there can be no development of self-sufficiency for a large percent of
the Indian population.

Aside from the value of water in the development pi'ocess. the
monetary value of water is tremendous. For example, the fair market
A'alue of the 2,000 cubic feet per second that flows out of the Fort
Hall Bottoms' lands is about $12 million. This is based on a price
of $25 per acre-foot of water from xVpril 1 to October 1, which is
only the 6-month irrigation season. Large quantities of water arising
on the Fort Hall Reservation are not utilized by members of the tribe,
but are used by non-Indians off the reservation. It is illogical for the
Shoshone-Bannock Tribes to be short of water because of a junior
right in the Idaho canal when 2.000 cfs flow ofl' their reservation 365
days a year. It becomes more illogical wlien one considers the fact
that the major agricultural areas of the reservation are situated over
the Snake River Plain Aquifer and are among the most productive
lands in the world.^^

In a report to the Committee on Interior and Insular Affairs of the
Senate, the Department of Interior stated that most of the irrigation
projects of the BIA were in need of completion accompanied by reser-
vation rehabilitation improvement.^"

Irrigated farming is the basic industry for many Indian communi-
ties, and for many, the only means of income available to the Indian
people. There is great danger of loss of the water, if not put to bene-
ficial use, because of the acute competition for water in the arid and
semiarid regions in the West. This is particularly true in and adjacent
to the Indian communities.

81 Jack Peterson, Futures?. A Comprehensive Plan for the Shoshone-Bannock Tribes, 1974.
p. 11.

«= Report to Committee on Interior and Insular Affairs by Secretary of Interior, Thomas
Kleppe, Mar. 10, 1976.

336

A short history of the community of Ak Chin would ilhistrate how
the use of water can help Indian people develop a relatively self-
sufficient community. Prior to 1910, their reservation had a river
running through their land. That year, however, it was dammed
upstream. The Federal Government gave "notice of water appropria-
tion" for their use, which was never implemented. Up until 1946, the
land was not used. At that point, the BIA started leasing it to the
non-Indians. Just 16 years ago, the Ak Chin people were struggling
along surviving on transfer payments in welfare from the Federal
Government. Today, as a result of an incredible amount of effort on
the part of the Ak Chin people and over the objections of the BIA,
they are prospering. Their farming operations have done this for
them.

However, even with this success, they are in trouble. Less then one-
fourth of their irrigable land is now being farmed because of the short
supply of water and the expense of pumping it. The water table is
sinking at a rate of approximately 20 feet per year. There is a con-
tinuing need for water supply to the Ak Chin people.*^^ Without water
they will once again become dependent upon the Federal Government
for transfer payments in the form of welfare and unemployment.

MAXAGEaiENT OF WATER DELIVERY SYSTEM ®*

On August 18, 1975, GAO reported to Congress a need for develop-
ment of Irrigation Management Services (IMS) in the BIA's irriga-
tion projects. The Bureau of Reclamation, the National Water Com-
mission in its report, and various other studies concluded the IMS
would allow a reduction in water use by increasing irrigation efficiency
by approximately 20 percent annually at a cost of about $8 per acre.
In spite of the benefits IMS offers, the BIA has not started such a
program. They say that they have not explored the Bureau of Rec-
lamation efforts to develop IMS and also felt that farmers would not
cooperate in implementing such a program. Even at that, they felt
that IMS was not needed on their irrigation projects.

In contrast to the BIA's position on IINIS, such a program could
increase the amount of land used for farming on the Yakima Nation.
Of the 154,800 acres of cropland, productivity on 10,500 acres has
already been adversely affected by a rising water table with approxi-
mately 300 additional acres being affected each year. The GAO report
stated :

A 1969 Bureau study estimated that annual rent for 2.282 acres of affected
Yakima croplands could increase by $66,520, if the land were reclaimed. Further-
more, rental income could be expected to decrease if the present rate of land
deterioration were allowed to continue. According to an agency oflBcial, some of
this land was formerly used to grow hops and annually rented for over $50 an
acre. Now, these same lands are suitable only as pasture iand rent for about $2
an acre.

* * * An alternative to IMS on the Yakima reservation would be a drainage
project to lower the area's water table. It would cost substantially more than

«3 Letter to Ernie Stevens, staff director, Senate Select Committee on Indian Affairs, from
Forrest Gerard and Assoc, re : proposed legislative concept to solve Ak Chin's imminent
water needs. Mar. 9, 1977.

**U.S. Comp. Gen., report to Senate Committee on Energy and Natural Resources, Indian
Natural Resources — Opportunities for Improved Management and Increased Productivity
Part I : Forest Land, Rangeland, and Cropland. Aug. 18, 1975, p. 50.

337

IMS, however. During 1970 and 1971, 934 acres were drained at about $125 per
acre, A Bureau oflQcial estimated current drainage cost to be nearly $200 per acre.

The report also stated that, of the 50,500 acre Gila River Eeserva-
tion portion of the San Carlos In-igation Project, only 13,083 acres
received water. The agricultural value of these lands to the tribe is
very important. These lands that are receiving water produced ap-
proximately $4.4 million worth of agricultural products. The BIA's
efforts are geared toward finding additional water for the tribe even
though they believe that IMS would stretch existing water supplies
to irrigate substantially more of the croplands. In spite of the BIA's
belief that tribes would be reluctant to accept IMS, GAO found that:

In 1973, the tribe, Bureau, and BR entered into an agreement to implement
IMS on the Colorado River Irrigation Project.

Bureau officials stated that the tribe encouraged IMS because almost all of
its available water was being used on 62,000 acres out of 103,000 acres of
irrigable lands. IMS has the potential to stretch existing water supplies to an
additional 28,000 acres of reservation land by 1978,

The survival of Indian tribes as economic units in the arid and
semiarid Western States requires the protection of Indian rights to
water on, under, and adjacent to Indian land.

The development of viable agricultural systems, grazing economies,
or industrial ventures depends on adequate, reliable delivery of water
from customary sources.

Economic development of the western reservations is inseparable from Indian
rights to the use of water, which, in turn, are the most valuable of all the natural
resources in the arid and semiarid regions. Those rights are the catalyst for all
economic development. Without them, the reservations are virtually uninhabit-
able, the soil remains untilled, the minerals remain in place, and poverty is
pervasive. (Yeeder, 1972, p. 175) .

Indian water rights are inherent and reserved to tribes through
treaties and agreements and are not derived from Federal grant, ap-
propriation, or purchase. The trust responsibility of the Federal
Government includes the protection of Indian rights to the use of
water.

The States and the Federal Government have ignored established
Indian water rights under the Winters doctrine, in Federal water
projects.

The Government also fails in its trust responsibility by not protect-
ing Indian rights to the use of water from infringement by non-Indian
individuals and the States.

At present, there is no program or svstematic approach by the De-
partment of the Interior or by the BIA to develop tribal water re-
sources. The responsibility has been put upon the tribes themselves
to protect their water rights, but many tribes lack the expertise or
the funds to employ experts in this field. In addition, the Department
and the BIA do not provide information to the tribes as to the
intent and impact of projects of the Bureau of Reclamation, Bureau
of Land ^Management, Corps of Engineers, etc., which have an interest
in water resources affecting Indians. This once again is an example of
the conflict of interest within the Department of the Interior.

In several suits now pending before the court, the Department of
Justice, while claiming to represent the Indian claimants, is arguing
a position contrary to the interests of Indian water rights.

I 338

The Bureau of Reclamation lias presented to Congress data on
water recover}' in several cases which is factually incorrect. The effect
has been the violations of water rights of the tribes involved who
liave found their access to customary sources of water diminished.

EECOMMENDATIONS

The Cominhuonvecoimneiuls that:

The Secretary of Interior allow the tribes having legal rights over
water to develop their own water codes designed to regulate all forms of
^vater usage.

Congress enact legislation to provide for an Indian trust impact
statement (as outlined in tiust section of this report) any time Federal
or State projects affect Indian water resources.

The Secretary and the Bureau of Indian Affairs take the following
actions or provide tribes with the financial capability to :

1. Inventory all tribal water resources.

2. Complete land use surveys particularly to determine lands
which are irrigable or which can use water for other beneficial
uses.

3. Conduct adequate engineering studies of the Indian water
resources necessary for litigation.

4. jNIake available to the tribes funds to conduct legal and engi-
neering research regarding particular water resources and to pro-
ceed with litigation where necessary.

Congress investigate litigation in the San Juan River Basin, the Rio
Grande Basin, and the Colorado River Basin, and it likewise investi-
gate the Walton cases, the Bel Bay case, and the Big Hm^n case to
ascertain the scope of Federal conflicts of interest.

Congress amend 42 U.S.C. 666 known as the McCarran amendment
to specifically exclude Indian water rights from its provisions.

The Secretary of the Interior direct the BIA to work with Indian
tribes and the Bureau of Reclamation to (1) identify those Indian
lands served by BIA irrigation projects which would most benefit from
IMS; and (2) plan and provide guidance to implement IMS on those
lands.

IMlNERAL ReSOUKCES

There has been a considerable amount of criticism about the leas-
ing practices of Indian mineral resources. A majority of the criti-
cism is aimed at the manner in which the Federal Government
manages these resources. Well-documented arguments have been made
which point out that the development of the non-Indian community
has been, in many cases, paid for by the Indians through their re-
sources. INIuch has been said about the source of the problem. The ef-
fort here is to point out the difficulties and recommend a set of policies
to design and correct these unfortunate circumstances. It would be
helpful to briefly discuss some important data on the amount of re-
sources we are referring to.

In a report to the Senate Committee on Energy and Natural Re-
sources (then Interior and Insular Affairs), March 31, 1976, the Gen-
eral Accounting Office (GAO) stated that Indian oil and gas reserves

339

•amount to approximately 3 percent of the United States total reserves.
This was broken down into 40 reservations in 17 States. The estimate
on oil reserves as of November 1973, was approximately 4,2 billion
barrels with gas resources at about 17.5 trillion cubic feet. There was
also an estimation of approximately 100-200 billion tons of identified
coal reserves located on 8.'> reservations in 11 States. This was approxi-
mately 7-lo percent of the ITnited States identified coal resources of
1.581 billion tons.^^ In a report by the Federal Trade Commission that
Indian lands have the potential of containing more than one-tenth of
the United States currently minable coal reserves.'"'*^ A brief review
-of the relative importance of Indian minerals to j^roduction in the
United States would also prove helpful. Data gathered from a USGS
survey shows that production of coal on Indian lands in 1974 was
1.9 percent of all United States production which made up 35.8 per-
cent of all production on Federal and Indian lands The value of pro-
duction of oil and gas on Indian lands was 4.4 percent of the total
United States production. If off-shore leases are excluded, the pro-
duction value rises to 13.6 percent of the total production value on all
Federal and Indian lands. Aside from the major Indian energy re-
sources, there are a variety of other minerals of considerable value
on Indian lands. For example, phosphate production on Indian lands
ivas 4.9 percent of the total United States production which amounted
to 35.4 percent on Federal and Indian lands. In 1974, 100 percent of
the Federal and Indian land uraiiium production was on Indian lands.
It must be noted that of all mining on Federal and Indian lands,
production from Indian held resources was 15.6 of the total.*'^

INEQUITABLE MINERAL LEASES

The present policies on the leasing of Indian resources leave tribes
with inequitable agreements. These agreements ensure that revenues
received from mineral resources are only a fraction of what they
should be. Measured by international standards, the leases negotiated
on behalf of Indians are among the poorest agreements ever made.®^

DEFICIENCIES IN CONTRACTS

One of the major deficiencies in Indian lease agreements is that
royalty rates are usually too low and fixed in dollars per unit of pro-
duction of the resources which, of course, ignores increases in value
rather than percentage of value, which increases income as minerals
increase in value. In four out of the five Navajo coal leases consum-
mated between 1957 and 1968, the royalty was fixed between $0.1.5-
^O.?)7o a ton. Since then, the average value per ton of coal rose from
$4.67 (1968) to $18.75 (1975) .^^ There is no simple way to change these
inequitable terms because there are no adjustment clauses in the leases,
and the leases are for 10 years "and as long hereafter as minerals are

«Task Force No. 7 final renort. ATPRC. Washinston, D.C, Tiilv 1976. p. 47.

eaFTC, Bureau of Competition, 1975 "Report to the Federal Trade Commissinu on Min-
eral Lea.-^ing Indian I^ands," staff report, Jame.'; Dick, primary author. October in7.'5.

^ Supra, note 1. n. 47.

8' David N. Smith and Louis T. Wells, Negotiating Third World Mineral Agreements :
Promises at Prologue. Cambridge Mass. ; F.allinser Publishing Co. (1975).

'"Executive Office of the President, Council on Wage and Price Stabilitv, A studv of
Coal Prices, a staflf report, IMar. IG. 1976, p. '37.

340

produced in paying quantities/' The royalty is arguably fixed for the'
life of the deposit. Some tribes have attempted to negotiate royalty
rates in spite of the Blxi written leases. The Crow Tribe was successful
in forcing the rate of coal from the originally offered 11 cents per ton
to 17.5 cents per ton. As a general principle, in a line of inflation, a.
fixed price contract for any commodity is a poor contract. Even if the
relative price of a commodity does not rise in relation to all other
goods over time, the general rise in the price level will hurt tribes with
fixed rates per ton rather than percentages of value.^° In a review of
15 coal leases from 3 tribes, 12 had fixed royalty rates while only 3 had
royalty rates based on the selling price of the coal. Although USGS,.
in 1971, changed its policy of calculating royalties based in fixed
amounts per ton to percent of selling price, they approved royalty
rates for leases at 17.5 cents per ton without recommending percentage
royalty rates.^^

COAL LEASE ACEEAGE LIMITATION

In reviewing 15 leases, it was discovered that 10 were in excess of the
2,560-acre limitation mandated by 25 CFR § 171.9(b) and §172.13.
Decisions on size of leases must be determined by the tribes. It is noted,
that for coal development to be profitable the size of the lease has tO'
be greater than 2,560 acres.^^ It appears that a review of the acre
limitation must be done.

ENFORCEMENT OF TROVISION OF CONTRACTS

The BIA and USGS are charged with the responsibilities of en-
forcing Indian mineral lease provisions. There is considerable docu-
mentation that such enforcement is not taking place. There has been
a failure to require full compliance with information provisions of
exploration permits. The USGS has the responsibility of perform-
ing gas and oil well site inspections for lease compliance. The inspec-
tions include drilling, producing, abandonment, and meter proving
inspections. It has been found that only a very small percentage of
required inspections is being carried out.'^^

It has been found that significant amounts of royalty payments were
being received late. In fact, of the survey that was performed, only
one tribe was properly enforcing its lease provisions adequately, A
comparison of royalty payments on the Osage, Uintah and Ouray, and
Jicarilla Reservations for a 3 month period in 1974 follows :

Payments Late Percent

Reservation examined payments late

Osage

Uintah and Ouray

Jicarilla

4,824

0.3

70.0

46.7

■"• Ron Trosper. American Indian Mineral Agreements : Literature Search and Rpform
Proposals. A paper prepared for Task Force No. 7 — Reservation and Resource Development,
American Indian Policy Review Commission. Washington, D.C.. May, 1976.

•^U.S. Comp. Gen., report to Senate Committee on Interior and Insular Affairs, Indian
Natural Resources — Part II Coal, Oil, Gas, Washington, D.C. : GAO, Mar. 31, 1976.

" Ibid., p. 24.

^Ibid., p. 31.

341

The loss to the tribes is sioiiificant. For example, in a review of
•20 producing oil and gas leases done over a 14-nionth period on one
reservation, it was revealed that over $270,000 in royalty payments
were 1 to 11 months late. If the 1.5 percent late charge provision were
enforced, it would mean that the tribe would receive an additional
$6,000. That $270,000 invested for 1 year at a conservative G percent
rate would have produced $16,200 additional income to the tribe.'*

Enforcement of contracts requires reviews and audits of lessees.
These requirements are not being performed. USGS regulations
require lessees to submit reports which include reports of operations
listins: various actions. These reports, for the most part, are not being
submitted. ^Manv postaudits are not being performed. In one area
of the review, only 5 percent of the past audits were being performed.
The benefits of such audits are significant. In that same area, over a
2-year period, an additional $798,000 was collected through such
audits." The functions of reviewing and auditing require auditors
and reviewers, which requires funds to be expended. In view of the
fact that significant benefits can be received witli adequate reviews and
audits, it would be appropriate to put greater effort in this area.

Enforcement of lease provisions for hiring are to a large extent not
•done. The reason is tliat the tribes and the BIA are unable to deter-
mine the effectiveness of Indian preference in hiring provisions. Only
in a few cases were there procedures which required the lessee to
report on their employment of Indians in the Indian community. If
procedures were established for enforcement of preference provisions,
the tribes and BIA would better be able to determine the effectiveness
■of such provisions. Indeed, where such procedures were established,
there was substantial Indian employment in the minerals industry, as
was the case on the Navajo Nation where enforcement procedures had
been established. In that situation of the 1,313 people who were em-
ployed in the coal industry, 712 wei'e Indian. The total annual earn-
ings, in that situation, were approximated at $8.2 million. In other
cases, because accurate figures on the number of people employed Avere
not available, it was not possible to determine the number of Indians
employed in the mineral industry; however, indications were that
Indian employment in the industry was minimal."'^

ENFORCEMENT OF PROVISIONS FOR RECLAMATION

The tribes, BIA, State and local agencies, and USGS are all
involved in reclamation activities on Indian lands. Monitoring of
reclamation on Indian lands activities is the responsibility of USGS
The responsibilities of USGS in this area are not outlined in the
CFR, although they are discussed in various sections. There are no
formal agreements among the different organizations to coordinate
these activities. The result is that each organization is operating
independently.'^

"MV.id., p. 32.
■"• Ibifl., p. 34.
"« Uiid., p. 18.
" Ibid., p. 37.

342

EXVIROXMEXTAL COXTOOLS ARK TOO WKAK

Indians aro unable to prevent environmental deo-radation resnltin<r
from development except thronffh the veiy cumbersome mechanism of
tlie National Environmental Protection Act. NEPA's main contribu-
tion is to cause delay. A tribe may wish to control the form of develop-
ment rather than to delay it : yet, without the oppoi-tunity to bargain
etlectively, the tribe cannot impose the controls it wants or extract a
higher royalty in return for not imposin"; the controls.'^ It may bo
too early "to know how much stren.ath tribes can put in codes con-
trolling-development, particularly on leases which already have been
signed.

TIIE DURATIOX^ OF LEASES ARE TOO LOXG

Nearly all can be indefinitely extended if production is occurring.
The provisions for redetermining the rental rates are usually weak.
The extension provision results from the Omnibus Mineral Leasing
Act of May 11, 1938 (25 U.S.C. § 306 a-f), which states that minerals
may be leased "* * * for a term not to exceed ten years and as long
thereafter as minerals are produced in paying quantities.'' The limit of
10 years is contradicted by the possible inclefinite extension of time.
Long-lived leases accentuate the low price problem identified earlier.
In a time of general inflation, a fixed-price-per-ton payment can
become a very small share of the total income from a particular min-
eral production activity. For percentage royalties, should the usual
landowner's share drift upward over a time, a tribe with a long lease-
would lose relative to those with short term leases.^"

Long term leasing problems can be avoided if terms could be re-
negotiated periodically. Some leases contain provisions enabling the
Secretary of Interior to redetermine royalty rates and other provisions
of a lease every 10 years. But such leases rarely contain a method by
which a tribe can force such Secretarial action by not defining the-
reasons which require redetermination of lease terms.

DEMOGRAPII CIIAX^GES CAN CAUSE SOME ADVERSE SOCIAL PROBLEMS

Mineral development invariably increases the population of non-
Indians on or near a reservation, creating political difficulties for the
tribal government and cultural problems for the Indians. Tribes wish
to be able to reach a reasonable accommodation with the non-Indians
who move in, but are unable to do so if they cannot set controls Avhich
are widely known from the very arrival" of the new residents. An
alternative in some cases is for Indians to provide the labor for
developing the minerals. Although training may entail some costs, the-
tribe could exchange rental receipts for training opportunities if it
could bargain effectively. If they could choose, some tribes might wish-
to impose environmental controls and Avorkplace controls which lower
the monetary return, while other tribes may prefer to maximize the-
monetary return. Unfortunately, tribes now receive low monetary re-
turn without any of the other controls eit]ier.«"

™ Supra, note 6.

'0 Supra, note 7, Indian Xatural ReROurces, p. 48

•■''ibul., p. 4y.

343

Most of the problem areas identified earlier come about because of
the weak beginning position of tribes in relation to the potential re-
source developers.

REASOXS FOR INEQUITABLE Li:.VSE ARRAXGEJIEXTS

Trosper anal\'zed the reasons underlying these inequitable leases.^^
The reasons are numerous. First, neither the Indian people nor BIA.
officials 2^ossess adequate information on the size of deposits, the costs
of ex])loration, costs of production, and market prices. The BIA has
never carried out a complete topographic or geologic mapping of
tribal lands. BIA does not have the expertise. The United States
Geological Service (USGS) is supposed to advise the BIA; how-
ever, funds to do the work have never been appropriated to permit
this to be done. Thus, it is impossible for tribes to put a value on their
resources. Second, the BIA does not employ jiersonnel with the skills
necessaiy to undertake negotiations even if the data was available. For
example, the BIA Navajo Area Office does not employ a geologist or
mining engineer, nor is there a procedure for BIA personnel to ex-
change information with other BIA officials who are conducting sim-
ilar negotiations. BIA in Washington opposes such exchange of
information saying that '•* * * tribes may believe that what has been
obtained on one reservation could be obtained on their reservation
without gi^-ing consideration to differing circumstances * * * also it
would be difficult and expensive to establish a system." ®"

Third, bargaining power in lease negotiations is reduced because of
inordinately long capricious delays in the approval process. For ex-
ample, in January, 1973. the Xavajo Nation sent out 25 invitations for
uranium exploration. By January, 1974, they had determined that
Exxon had made the best offer and entered into a flexible agreement.
According to the agreement, after a deposit is fomid, the Navajos
can choose whether they want to i-eceive a negotiated royalty or a
49 percent working interest. The Navajo Nation requested Secretarial
approval of the agreement. In turn, on A})ril 2, 1974, the Commis-
sioner of Indian affairs requested the Navaio area director to under-
take an environmental impact statement which was finally initiated
in January, 1976. Meanwhile, on March 10, 1975, an Assistant Secre-
tary of the Interior determined tliat there was no reason for the
Secretary not to approve the lease agreement. ^^ But this determination
had no iinmediate impact. For the lease was not approved until Janu-
aiy, 1977. The 3-year delay cost the Navajos $1,642,500 in unpaid
interest.^*

Fourth, tribal bargaining power is weakened by State taxation of
non-Indian mineral developers. State taxes on mineral production
(severance and sales taxes) fall upon the owners rather than the de-
velopers of the resources. The developer passes along his taxes to the
owners in the form of lower royalties. The developer does this by

*i Supra, note 6.

82 Supra, note 7, p. 13.

«■'' Memorandum from Jack W. Carlsnn. Asp*^. Sec. for Enerjrv & Minerals: Sulne^t :
"Financial Analysis of tlie Pronosed Xava.io-Exxoii I'raniuni rrospectins and Mining-
Tronosal" Dept. of the Interior. Washinprton. D.C.. Mar. 10, 1975.

^ Lorraine T. Ruffingr, Xavajo Mineral Afrreements. a jiaper delivered at annual meetin;.
Eastern ISconomic Association, Hartford, Conn., Apr. 14, 1977, p. 14.

344

including State taxation when lie calculates his expected profit. The
larger the tax, the smaller the royalty. ]Mo&t often, taxes exceed royal-
ties. For example, on the Crow Reservation, the ]\Iontana State tax
revenue received from a private mining operation amounted to
$3,988,424 for the period of July 1975 to March 1976. During the same
period, the tribe's royalties were $1,270,530. A State tax, upon mineral
developers, is, in fact, a tax upon Indians. Indians do not both tax
and receive royalties. Usually, they just receive royalties. The differ-
ence between the two is important from a company's point of view.^^

Depending upon how Federal tax laws treat tribal taxation, it
might be possible for a company to deduct a tax from its Federal tax
rather than from its before-tax income.

To illustrate this, consider a $500,000 annual royalty charge. A com-
pany deducts it and pays taxes on the remaining profits — for ex-
ample — at a 40 percent rate. Converting the royalty to a tax means that
before tax income would rise by the $500,000; the company would p