DOCUMENT RESUME

ED t38 418 RC 009 874

AUTHOR Deloria, Vine, Jr.TITLE A Better Day for Indians.INSTITUTION Field,Foundation, New York, N.Y.PUB DATE 77NOTE 38p.

EDRS PRICE MF-$0.83 HC-$2.0:6 Plus Postage.DESCRIPTORS *American Indians; *Attitudes; Beliefs; *Change

Strategies; Classification; Courts; Criteria;Decision Making; Definitions; Equal Protection;Federal Aid; *Federal Government; Federal Programs;Land Acquisition; Laws; *Policy Formation;*Recognition; Standards; Tribes

IDENTIFIERS *American Indian Claims

ABSTRACTVesting Congress with implied wers over American

IndianS produces attitudes and assumptions which are extremelyjlifluential. There are seven such controlling assuiPtions: Congress

presumed to act in good faith toward Indians;,the belief that pastpolicies were based upon some intelligent criteria that incorporatedan understanding of conditions, the approval of Indians, and afarsighted intention of Congress; the paternalistic assumption thatthe solution of Indian problems is a simple matter of adjustment ofalready existing programs; the perception of Indian lands andcommunities as laboratories which can be used to test varioustheories of social engineering; the Federal government can use Indianlands at its discretion; sanction of the privilege of the Federalestablishment to avoid difficult decisions; and tribal rights arenuisances that can be abated\as need be. In view of the impact ofthese assumptions, the following specific recommendations are offeredto affect fundamental shifts in direction, simplification of complexproblems to their elemental factors, and expansion of the manner inwhich Indians believe they perceive themselves today: uniformrecognition of Indian communities; clarification of tribalmembership; a standard definition of the status of an Indian tribe;creation of a "Court of Indian Affairs"; arbitration of long-standingNative claims; rejuvenation of the Indian land base; and universaleligibility for government aid based on need. (JC)

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The photograph on the cover was taken by Mike Clark inAugust 1975 at the Four Corners power plant in New Mexico,on the Navaho reservation. This huge plant, owned by a consortium of utilities under the name Western Energy Supplyand Transmission Associates (WEST), generates electricityfor transmission to Phoenix, Los Angeles, and some othersouthwestern cities. The rider is Mrs. Emma Yazzie, whoselife-long home has been at this place, and who has refused tomove away, with her sheep, goats, horses, and family. Sur-rounding her is the strip mine which fuels this plant, oper-ated by a subsidiary of General Electric.

A BETTERDAY FORINDIANS

Vine Deloria, Jr.

The Field Foundation100 East 85th Street

New York, N.Y. 10028

717

Foreword

Fhis is.the first ot several papers theField Foundation intends to publishduring 1077. .All \yin be disc.ussionsof national questions. They 111 alsobe e\pressive of certairi interestsand concerns ot the I.oundation'sprograms.

an, very glad that Vine Deloria, Jr.consented to w rite for thk series. Alawyer, leader, and philosopher, hehas been a devoted interpreter OfIndians to themselves and tO Others.Ve hope that what he has to sav inthese pages will be read videlv,and in Washington clw4elv, becausethese are deeply thoughtful conclu-sions about an ancient anto-ften-wronged people, and tneir place onthk continent.

W. DunbarKek u Dlrector

Contents

Page

Introduction 4

The Seven Controlling Assumptions 7

Can Indian Communities Have a Good Life in America?Recommendations-- 17

1. A Uniform Recognition of Indian Communities 17

2. A Clarification of Tribal Membership 21

3. A Standard Definition of the Status of an Indian Tribe 25

4. The Creation of a "Court of Indian Affairs". 26

5. Arbitration of Long-standing Claims 28

6. Rejuvenation of the Indian I,and Base 30

7. Universal Eligibility for Government Aid, .

Based on Need 32

Conclusions 34

INTRODUCTION

American I 1ni..ans are the oldestand most persistent of all the racialand ethnic minorities in our society.'Their origin on this continent is still amatter of serious debate. Scholarsconjecture that they:or their progeni-toN, arrived on the North Americancontinent approximately 35,000 B.C.having crossed the land bridge of theBering Straits during a period of rela-tive warmth when Asia and NorthAmerica were connected. Most In-dians reject this conclusion, for theirown legends describe different ori-gins., some holding that there weremigrations from both east and I, \est,sonic maintaining origin in an under-ground world and arrival in, NorrhAmerica by a journey from that un-derworld. Regardless of the theories,it is certain that most Indians seethemselves as the origina I inhabitantsof the continent and trace their landclaims to th, creation of the world..This point is important bi.:Catise tradi-tional Indians have frequently-boycotted federal programs, havefrequently rejected settlements in theCourt of Claims, and have refused toparticipate in tribal governments, be-cause of belief in the divine origin ofthe tribe and a feeling that participa-tion in federal programs .or recogni-tion of American claims against thetribe violate their traditions. '

The relationship of American In-dians to the rest of American societyhas traditionally.-bec., understood inthe context of the settlement of the in-

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teriot ot the continent. The introduc-,tion ot European culture and legalsystems, in the outcome principallyEnglish; meant a-radical change in .the conception of land by both In--d ians and :non-Indians. The Euro-pean nations claimed sovereigntyover the Jands of non-Christianpeople discovert.d.bV their explorers.Sometimes these claims:were re-duced to legal titles .by conquest, butmore often the European nationstreated formally it ith the tribes., as-suring them that acceOtance of politi-cal control by European nations overthem would not.interfere with theirtraditional ways of life except insofaras it meant the cession of lands.forsettlements.

Following the Revolution and the -

withdrawal of English armies fronathe' Atlantic,seaboard, the UnitedStates as.sertedits.clairn to sovereigrity oyA.9- the interior of the continent:.American jurists adlpted the doc-itrine of discovery under which Euro-pean nations had claimed land to ac-commodate -.the new situ, tion.Whereas European"nations d rec-ognized a.valid title to.land in. the Indian tribes 'and }pd. asserted claimsagainst other colonEzing powers,maintaining that their-title was'that offirst purchaser .with the.exclusiveright to extinguish a once-valid In-dial-1%0de to lands, the new UnitedStates government substituted a new'theory, one which denied any ulti-mate land -title to the Indians but

...which, in return, recognized the vari--ous tribes as political entities with suf-ficient politica l. existence to sign andkeep treaties.

The number of treaties actuallysigned with.the Indian tribes cannot,however, be determined with, anycertainty. Nearly 400 were-ratified; anequal number were-not. TraditionalIndians still see in the treaties a rec-ognition of their status as nations andrely upon them as the basic docu-ments which describe the7statu,s ofthe tribe and the powers which theUnited States can exercise over them.The Indian underStanding, for themost part, was one of listening to andremembering the intangible promisesmade by treaty commissioners, and

-the- treaty was viewed as a sacredcovenant between two nations; it wasbasically a religious, not a legal,document. Thus Indians stubbornlyanticipate affirmative action by theUnited States in resolving their dif-ficulties and many Indians do not seethe necessity of forcing the UnitedStates, through legal action, i.e., liti-gation, to perform on its promises.Tlw more acculturated and mixed-blood Indians rely on treaty argu-ments when it is politically feasible,but prefer to assert citizenship rightsat other times. Citizenship rights de-rive from a conglomerate of statutesand interpretive Case law generatedover the past two centuries.

Can parallels be drawn betweenIndians and other racial minorities?

In general, whites of the mainstreamtend to lump Indians together withother racial minorities and to pretendthat common solutions can resolve allproblems of minority groups. Histor-ically this commonality has not beenpracticed. Indians and blacks weredifferentiated in the Constitution,blacks occupying a quasi-legal statusincorporating property and humanattributes, Indians being conceived ofas "tribes" with whom the UnitedStates would conduct commerce. Inthe Thirteenth, Fourteenth, and Fif-teenth Amendments to the Constitu-tion blacks were.granted rights andcitizenship status, but even the, Four,teenth was at pains to distinguishIndians. Indians were 'specifically:,excluded from citizenship, entering-that status at first bY individual treatyprovisions and later in a general actunilaterally applied to all, IndianS.*I-Vhereas blacks have generally beenconceived as a "class," Indians havesometimes been seen as a "depen-dent, donwstic nation," small, andincapable of making critical politicaldedsions; sometimes as "wards."

Orientals and Mexican-Americanshave quite different historical tieswith the United States than blacks,ones that more closely resemble In-dians'. Immigration laws and. treaties /specifically restricted the entrance ofChinese, Japanese, and other Orien-tals into the United States until wellinto the present time. They were;therefore, often non-citizen aliens in

'Indian Cituvo.Thip 1924, 43 Stat. 353

the same sense that Indians, born ona reservation-of a tribewith treaty re-lations witn the -United States, werealiens, incapable of voting and pos-sessing vested property rights.Insofar as the federal governmentrefused to recognize the outstanding'treaty rights .of Mexican-Americansand Orientals, they have shared ex-periences in common with Indians.An ideological similarity thus exists,which may at some time in the futureissue in_a political coalition or at leastin a perceived sense of loss that re-sults in a concerted efforf for repara-tions.

But the major difference, legally,between Indians and other racialminorities, lies in the interpretationswhich courts have given to the pow-ers of Congress with respect to them.Consti,tutional protections are explicitfor every group except Indians,... sinceall others share now in a general citi-zenship status. But implicit powers ofCongress govern Indians, powers de-rived by inference from the Congres-sional responsibility to regulate trade

with the Indian tribes. Being implicit,Congressional power to affect Indianlives and property is rarely balancedby an articulation of Congress's re-sponsibility or limitation of its pow-ers. The extent of federal involve-ment with the tribes thus turns onwhat courts find "reasonable" or "an--'ticipated" in the-legislation at anypartiCular point in American history.

Indians have, therelon!, never re-ceived basic legal rights in the Ameri,can politicarsystem. They are, insome legalistic sense, citizens, but atthe same time, wards of the. state.Even the attorneys, forexample, whorepresent the tribes, have to be ac-ceptable to the federal government;and rather than having Constitu-tional. protections against the confis-cation of property or the violation ofcivil rights, Indian complaints fallconveniently within the discretionarypowers of federal employees, actingin ways thatwould, for other citizens,be blatant violations of .legal righits,but are for Indians simply the properexercise of trusteeship.

The Seven Controlling Assumptions

Vesting Congress with impliedpowers over Indians produces at-titudes and assumptions which playa formative but often unnoticed rolie.Perhaps the foremost of these, and onethat frequently :finds expression inthe decisions of the courts, is tiatCongress is p ITS limed to act in goM faithtoward Indians, and its acts to be delib-

-eratt..ly chosen to serve their best in-terests. This doctrirw, attitude, or,as-sumption, is so important, because itallows the federal gOvernment to dis-claim any ultimate moral responsibil-ity for its acts. lll-conceiyed or badlyadministred policies an. nevertraced back to their roots. The at-titude is rather one of superiority,with eat.h Congress or administrationdisclaiming, as it vishes, the policiesof the past and advocating equallydisastrous policies, always and inturn on the asstimption that m ri ofgood will do and did no wrong.

A sectind , resulting, from th as-sumption that Congress acts in ,00dfaith,' is the lyliet that past policies zrerebascd upon some intelligoit criterii thatincorporated an u nd' rsta nd g ofconditions, the approval of the In-dians, and a farsighted intention ofCongress. This belief is patently false,and refiTence to historical conditionsof Indians will indicate as much.

Indian reservations originated .asthe western lands were settled andthe establishment of reservations w aspretty much an ad-hoc process, thatsought hrst of all to disarm tlw In-

dians and render them harmless totht. v.Wes of settlers who followedthe paths of the railroads or miningnishes across the country. Markingout an area, usually a yalkw ordesertbasin, as a residence for the tribes,did not involve a commitment by thefederal government to organize a,community, much less thoughtfulplanning. Often it meant no morethan restricting Indians to an isolatedlocation by military force. Thus con-stniction of schools, hospitals, andagency buildings, and providing aneconomic l)ase for the tribe, occurredsporadically as,need arost. or political.pressures made it imperatie: (Notuntil the early I960s did many reser-vations receivt. funds for constructionof adequate public facilities.)

This is a convenient place to takenote Of tlw on-again off-again pi.Iiciesof Washington for economic im-provement of Indians. Today, this ismore than a burst of momentary zeal.For Indians, having in the nineteenthcentury been put on land desolateand unwanted are now found to besitting atop mineral wealth desper-ately vanted by corporations and theconsuming society.

Economic development of the res-ervations falls into two basiccategories: industrial developments,which emphasize vage inconw; anddevelopment of 'natural resources,primarily energy reserves, whichemphasizes exploitation by alWri cor-porations LI nder long-term leases or,

as is now being discussed, contractsfor services. Schemes for bringinglight industry into reservation areashave been foisted upon Indians fornearly two decades. One-need onlyscan the accumulated press releasesof the optimistic years of the l960s tosee the naivete which characterizedearly efforts to bring industries to re-mote reservations.- A survey todaywould, reveal that very few lastedmore than half a decade, and oneixould be greatly surprised to dis-cover 'any light industrial plant thatbegan in the 1960s and is still active ona reservation today. Thi. Fairchild fac-tory on the Nayajo reservation,which closed in 1975 following a pro-

\ test against working conditions, wasthe last sizeable operation of thoseyears still operating.

A related feature of th late l960swas the developnwnt 0 industrialparks and motels bv trib s who hadbeen persuaded by the Bureau of In-dian Affairs and Economic Develop-ment Administration that\ paradiselay just beyond .the next ph..iject. To-day, industrial parks, once filled withsewer facilities, power lines cementcurbs', and new signs, lie hidden inthe Weeds, baking in the hot sun inabandoned areas of southwesternreservations. Several reservationswere convinced that immensecrowds of tourists would irrade theirlands each Summer-if they builtmOtel-recreation projects near theirmost scenic areas. 1Nith the noted ex-ception of the Warm Springs reserva-tion, most of these projects have long

since scaled down to a local motelused on occasion for conferences andtraining sessions by the tribe itself,with little or no tourism to help pay

.for them.Exploitation of natural resources

began early with the disiovery of zincand lead on the lands of theQuapaws, later with oil and gas in theregion of the Five Civilized tribes andtimber on the Menominee and Kla-math reservations. Following theSecond World War the exploitation ofIndian mineral resources escalated,the growing urban areas of theSouthwest meant additional pres-sures on Indian water, and elsewherethere have been conflicts over hunt-ing. fishing, and ricing activities.There were sporadic controversieswith state agencies, as natural re-sources .grew sparse under the ex-panding pressures of populationgrowth.and avid consumption.

The energy crisis has only in-creased pressures. 'As royalty income - .

or, its prospects rose, tribal councils'saw leasing as a source of immediateincome and tended, to overlook thelong-term spoliation of Own remain-ing land base and it.' resources. One

--of the mainproblem. is the tendencyof tribal goVernmen s to sell or lease,enerprivsources for much less thanworth, considered on a long-termvaluebasis, preferr ng to have im-mediate income for present needs.Tales of corruption of tribal officials by'corporate bribery are not uncommon,but cannot be taken as evidence thatthe white men are aiMing,f0 eliminate

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Indians by robbing their resourCes, asmany Indian radicals would have it.Recent revelations in Washingtonshow that some corporations corrupt

---ever)ione,-without discrimination .as-to racial or ethnic origin.

The solution to the problem ofexploitation of Indian physical re-',sources cannot be foundM the prob-lem is conceived in isolation from thepolitical problems on the reserva-tions. Trihal officers need not leasecoal and Oil resources merely for im-mediate gain, but do so because no cf-fective mechanism'exists for thepeople to exercise deliberate and in-fornwd judgment, and to preventsuch actions when in the communi-

-,ty's interest. It is necessary to develop, the political and social resources ofIndian communities, prior to intelli-gent devetopment of natural re-

\\ sources. Unless adequate expressions

of tribal wishes, are made possible inthe political pmscesses of tribal gov-eminent, little hCadway can be made'in resolving the% many' problemswhich the energy cr:sis presents toIndians.

Thus no elaborate schemes fOr economicdez,elojniiiiir twill be presented in 'thispaper. Until Indians begin (»ice amin ft

conceive of themselves as Comnuinitieswith pi l'olitical lYnicess cal,able of solviiigsocial problems, there calmot.lie a rollisticapproach to the solution of economic /prob-lems, If the federal government wantsIndian-owned energy resources de-veloped it should first of all give itsneceSsary support to political and--tructural changes, stich as this paper

will propose.Still a third assumption results

from the paternalistic role and .pow-ers Of Congress. The solution of Indianproblems is conceit,ed as ti siinple adjust-ment of already existing programs. Ef-forts at. reform assume, quitewrongly, that the existing structureiyorks, albeit poorly, and correctivemeasures ae viewed as efficiencyproblems; i.e.; how t-) deliver sCr-vices faster. Never do reformers askhow programs driginated whetherthey are designed to serve Indians,calm tho ruffled feathers of hureauc-rats, or pacify angry Congressmenand their constituents. The ideologi-cal roots of many lndianThrogramsthus remain hidden and goals be-come tangled between the practical

,needs of Indians and the political de-sires of non-Indians.

A fourth attitude of implicit powers-views Indian lands and communities aslaboratories which cap be used to test var-ious theories of social engineering. TheterminatiOn of the Menominee tribeof Wis,tfonsin, for example, wasthought by its initiator, Senator Ar-thur Watkins of Utah, to be a testingof the principles of economic Dar-.

. winism. Earlier, the experiment ofoff-reservation boarding schools,conceived by. non-Indian friends whosaw cultural evolution as the grandprinciple of human progress, perma -

nently 'oriented Indian education to-ward an assimilationist goal. Indianeducation is still basically directedtoward the extinction of Indian cul.:ture since it is conceived as a means of

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integrating Indians int() a mythicalAmerican mainstream.

A tiff Ii attitude deriving from theConstitutional theory of impliedCongressional powers is that the fed-

eral Noz.ernment olti rise Indian lands atifs thiscretiou, Indians possessing noultimate legal interest in their prop-erty, he consinaction iii dms by theArmy Corps of Engineers, the con-stmction irrigation projects on In-dian lands tor the benefit ot non-Indian lessees and neighbors, andthe general willingness of ledef-alagencies to accommodate private in-terests in their exploitation of Indianlands and natu ra I resourcc:s, all testifyto the potency of this attitude. Justifi-cation ot programs which are dest rue-tive ot Indian lives, communities, andsocial vallleti rehes upon this Cativ be-hef in the benevolent exercise of thelinlimitt4., powers ot Congress to LISCIndian properties. I'he puNic hasbeen taught that, it -we" need moreIndian land, "they" will have to bemoved.

A siAth attitude sanctions theof Ow federal establishment to

ult Ihe executiveand judicial branches often refuSe toenforce the legal rights ot Indians,using the excuse that the Constitu-tion has committed Indian attaiN hCongress. Thus federal courts, hear-ing massive evidence ot treaty viola-tions by the tederal executive, avoidthu dilt ii ult decision ot (hiding theUnited States in violation of the lawby prom !aiming that treaties are politi-cal matters to be resolved by Con-

gross, which the courts must not ap-proach. Thus it is practically impossi7ble to get-legal satisfaction from thefederal government. Failure to re-ceive just ticatment creates n abid-ing sense of mistrust of the federalgovernment.

A sei,cittli assumption generated bythe implicit powers of Congress overIndians is manifested by state andlocat officiak, and it is that trilia! rightsare nuisances, that can be abatol ashe. Most states in the west have dis-claimer clauses in fheir C(institutions,or in the enabling acts which admit-ted them into the union, forbiddingthem from assuming control over In-dian lives and properties. But local of-ficials realize that they can, one wayor another, override Indian com-plaints politically,Senators and Con-gressmen all have more immediatepolitical relationships with their stategovernments and economic intereststhan they do with Indian tribes, Thusstate officials easily subvert Indianprograms by pressuring their Con-gressional delegation in a variety ofways, if not through their own statecou rtS.

The historical propensity of federalcourts, the executive branch, andsucceeding Congresses to assert thatan implicit power to govern 'Indiansresides in the legislatiYe branch, hasmeant the development of a condi-tion in which neither the Indians northe bureaucracies understand thedimensions of the' federal trust rela-tionship. Interpretations of "the law"change with great frequency and no

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one understankwhat is fundamen-tal in the legal reliaiimIship: Trust canrriOan overbearing supervision or anarms-length observation of condl.tions, and consequently nearly every

course of action, whether benevolentor detrimental to Indians, is subject toendless critique and controversy, andtypically fails to accomplish its gaaiS;

Can Indian Communities Have a Good Life in America?

The present situation is furthercomplicated by two contemporaryfactors which willinake any true solu -tion difficult to achiev.....: (1) hidianpolitics; and (2) the Aboureik Com-mission. In ,1 senst, we always havethese two factors with us; i.e. therehas always been politics w'ithin In-dian ranksthough not perhaps asdestructive as at presentand therenearly always seems to haYe beensome study commission. This latestcommission, co-chaired by SenatorJames Abourczk of South Dakota andRepresentative Lloyd Meed's ofWashington w ill, in this writer'sopinion, add little or nothing to-thefailed recommendations of previouscommissions. From its beginningIs,1 Congressional response to theWounded Knee occupation, it hasbeen embroiled in Indian politics. Ithas been maneuvered, as well, by thesurvival instincts of 13.I.A. officials.

\ell-intentioned people have beenactive in it, but the likelihood is that itwill recommend outmoded policiesand programs already suggested, intheir main outlines, by several com-missions of the past. Nevertlwless,for years to come its vork will be partof, tht: political environment whichwill have to be lived withind de-toured around if real improvementsare to made.

As to Indian politics, Indians aregenerally conceived to be a homoge-neous group but they arc not. Ilistor-

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it'.11 friendships and enmities go backinto the pre-Columbian past andevery tribe conceives itself as an in-dependent nation with a distinct his-tory, culture, and attitude towardother nations. Oply in this century,particularly with the effects of off-reservation boarding sChools, haveIndians .perceived that they are con-sidered a homogeneous group bynon-Indians. This realization hascontributed a great deal to effortsmade throughout this century tounify the tribes politically. Benefitsprovided to all tribes in, the IndianReorganization Act of 1934 and fearscrea ted d u ri ng the termina tionperiod, N54-1%4, helped to foster asense of national unity among In-dians.

A number of important Indian or-ganizations now exist which repre-sent different attitudes and beliefsheld by signifiant portions of the na-tional Indian community.

The present division of Indianpeople seems to fall along the lines ofactivism vs. conservatism, the Na-tional C:ongress of American Indiansand National Tribal Chairmen's As-sociation following directions set bythe government quite closely, the:Na-tional 'Indian Youth Council exercis-ing a responsible mainstream ap-proach to problems, and the Ameri-can Indian Movement conductingmilitant protests against bureaucraticand tribal governments' abuse of In-

dians. The federal security agencieshave harassed the leadership ofA.I.M. continually in the last fouryears, consistently violating civil andConstitutional rights of Indians, andhelping tribal politicians to beat downtheirpolitical opponents by a varietyof techniques. Until the federal policeforces are neutralized and directed tofollow the laws of the United Statesand the political corruption of,,Sonwreservation leaders is punishe_cf, therewill be no peace in Indtan country.

Indian politics has made many In-dian leaders willing conspirators inthe violation of Indian rights..Anynew federal policy for Indians mustconfront the particular problems ofIndian organizations and must de-strov the incestuous relationshipwhich some leaders now enjoy withvarious federal. agencies. Or elsethere will, be no progress in Indianaffairs.

For the field of Indian affairs is inabsolute confusion. Interests and at-titudes have become so entrenched inthe minds of both Indians and whitesduring the course of this century thatany substantial changes are likely totie rejected by irrational attacks on themotives of the reformers. Indianshave continually demanded a stream-lining of the Bureau of Indian Affairsand reformers 1,ave frequently takenthese demands to heart. Butwhenever a definite plan issuggested, always some Indianscombine with career employees of theBureau to sabotage, preferring gener-ally simply to exchange one set of

federal employees...for others whomight be more compli-ant with thewishes of the tribal politicians.

The fatal mistake of both theJohnson and Nixon administrationswas their Yielding to the temptationto use plans for B.I.A. reform as ameans to bolster their public imagewith both Indians and non-Indians.Announcements of structural chang-es in the B.I.A. always triggered an ir-rational response from the Indians,and much of that trauma can betraced to bureau employees on thelocal level who actively stirred upsentiment against the change. Butlocal people recognized thewindow'-dressing efforts and re-sentment built, culminating in thesack of the headquarters of the B.I.A.in November 1972. Whatever

,changes may in the future be made orcontemplated should be accom-plished as silently as possible, over aprolonged period of time, so that theydo not become.political footballs andtodder for sensationalizing in themedia. .

Congressmen harangue againstth'e expanding role of governmentand the Bureau of Indian Affairs isoften a. target of their gibes. But thestirring speeches against big gov-ernment, whether originating fromDemocrats or Republicans,- hide abasic fact of political life, particularlyin the western.states. The Bureau ofIndian Affairs provides an importantfederal payroll for many small citiesin the Wust, and. the removal of an of-fice or a sudden cutback in its func-

tions will almost surely provoke thewrath of a Ccingressional delegation.It is estimated, for example, that thearea office of the B.I.A. in Aberdeen,South Dakota, generates a payroll of$2 million a year for that city. Any sig-nificant reduction in this source offunds, even if it benefits Indians, willproduce an immediate protest bylocal cit zens, each of whom, indi-vidually, May despise Indians anddemand that they be taken off the-federal

A decade ago Indians had few op-.portunities to exercise responsibleprofessional functions, I'eopk. be-lieved that Indians were "good withtheir hands," and programs_andemployment opportunities reflectedthis belief. In the 1960s a new beliefarose, that Indians could administerprograms better than whites becausethey knew their own communitiesbetter. Administrative ability countedfor less than blood quantum whenmany positions wen.' filled. The catas-trophic record of Indian organizationsin the private area, in reporting' theirexpenditure's, performing adminis-trative tasks, and planning the scopeand direction of programs, indicatesthat this belk'f i false. It has led towaste and useless expenditure oftime and energy. A large number ofincompetent Indians now occupypositkms in the federal government,often alongside incompetent whiteveteran civil servants, having re-ceived their appointments during theyears when blood was a priority itemin hiring Any funclanwntal attempt

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to grapple with problems will involvea deliberate, steady, and prolongedcontraction of the number ofernployees, including Indians, work-ing in federal Indian program. Themajor thrust of change should be toeliminate incompetent people,whether Indian or white, and thisMay involve the dismissal or re-placement of some politically pro-tected Indian appointees; but it mustbe done.

The favorite device of the federalestabhshment in recent years hasbeen to underfund a popular pro-gram, and then make a great numberof applicants eligible for the availablefunds, thus demonstrating need andpopularity of the program. But a large,number of applicants for small sums,of money enables administrators toexercise dictatorial powers over recip-ients of the program, encouragescronyism, and creates mistrust by,disappointed applicants. Com-munities wishing to receive fundingmust often conform to informal re-quirements devised by bureaticrats,must hire consultants recommendedby federal employees, or must Sub-contract with designated institutionscind people with whom the federaladministrator often has; at kast, sen-timental ties. Housing and economicdevdopment contracts often dependupon the subcontractor who actuallyperforms the services and not theneeds of the tribe or the feasibility ofthe project. If there is to be hindamentalmorm, the number of pnigrams must begreatly reduced, they must be inlequately

fintiteit with Ii nunlmion of rot hipc, andHim ?Mist Ik'z,eri/ tiOitly monitored.

All of these considerations must betaken into account when we begin todiscuss the present situation ofAmerican Indians, the factors thatinhibit constructive change, and themanner of initiating. reforms. Gov-ernment funds have been used topurchase the silence or support oftribal officials. Congressional careershave taken priority over the condi-tions of poverty in many com-munities. Indian political leadershave been allowed to exploit theirown people in exchange for theircooperation. All of these things speakto a basic lack of ,1 moral standard inthe field of Indian affairs. This situa-tion cap be remedied by ,1 strong pres-ident, exerting moral leadership andadministering justice evenly.

Few administrations have beenable to et fect any fundamental

\ changes in the conditions of Ameri-\can Indians. The "War on Poverty"se,rved to distort and overemphasizepractices that were already plaguingIndian compiunities; and whilebricks-and-mortar projects ac-complished. physical change, themoral and intellectual climate of In-dian tribes, in my opinion, declinedsignificantly during this period': Gov-ernment projects often became per-_sonal projects of Indian politicians,and concern tor the peopk. which hadmarked other eras ot Indian com-munal existent virtually vanished inthe avalanche of consultant fees.

'Hie last administration to institutc

1.8

basic structural reforMs was the NewDeal of Frankli n....n R oosevelt. Priorto and since. the New Deal, it is dif-ficult to identify any administrationthat assisted Indians. Therefore anew administration is faced initiallyby an attitude of uncertainty andsuspicion among Indians, n.gardlessof their seeming enthusiasm.

The enduring atmosphere of thefirst term of Franklin D. Rooseveltwas not simply its morality nor eventhe expectations it created. It also ex-pressed a definite analysis of the na-ture of the federal-Indian relation-ship. Roosevelt's Indian Commis-sioner, John Collier, Onderstood thenature of Indian life better than anyprevious or succeeding Commis-sioner, Indians included. He sthightto bring the various sitrands of the re-lationShip within on6 comprehensiveand consistent policy by advocatingrestoration of 'traditional forms ofself -goyernmen t for the Indianpeople. He was perhaps a generationtoo late to restore totally the tradi-.tional virtues of. Indian life to peopk.who ,had already experienced twogenerations of bureaucratic exploita-tion and as!:;imilationist educationalpolicies. [hit his attempt to developIndian communities as viable politicalentities...call be recaptured throughthe actions of a determined adminis-tration.

Hie Indian Reorganization Act,while rejected vehementk, at the.time, IL., beensentimentallY under-stood by Ind ia US as an effort to ensurethem self-government. This goal has

been acceptable to Indians since thattime, even though it has not beenachieved. Traditional Indians havebeen widely excluded frOm participa-tion in tribal I flpo....ca. a.:a.rs, partiallythrough their own sense of identityand partially because the mixed-bk,od, more assimilated Indians havebeen better able tolunderstand andopeiate tribal governments. I. tradi-tional life canpot be restored, com-munal life can be transformed, sothat Indians can have a cultural con-text within which the best parts oftheir traditions c\in be reali/ed.

I shall, therefore, concentrate rec-ommendations on specific items ofreform that can be initiated within anadministration's life and which,taken together, would constitute acontemporary parallel to the reformsot the New Deal. These reforms, forthe most .part, are not headline-gathering Changes, but fundamentalshifts in direction, simplifications ofcomplex problems to their elementalfactors, and expansions of the man-ner in which Indians believe theyperceive themselves tOday.

.16

RECOMMENDATIONS

1. A Uniform Recognition of Indian Communities.A continual controverSy has

existed with respect to the numberand identity of Indian communitieseligible for federal services. The In-dian Reorganization Act was de-signed to reconstitute all the identifi-able Indian communities as federallyrecognized tribes, allowing them amaximum amount of self-govern-ment, and encouraging them toachieve economic and cultural inde-pendence from the federal govern-ment. The Indian communities in theeastern United 'States were consid-ered eligible to receive the benefits ofthe Indian .Reorganization Act ands9rne bureau personnel visited themto begin the.proceSs of organizingthem as federal corporations. Travelfunds became exhausted, criteria forrecognition became confused, priori-ties shifted as the Second World Warapproached, and they were left totheir own deYices.

In recent years these eastern com-munities have once again ap-proached the federal government inan effort to gain the legal rights whichthey have long been denied. Theyhave been shunted aside with a vari-ety of excuses and delayipg tactics,and .treated as if they had no Ind;anheritage at all. From the beginning ofthe federal-Indian relationship it wasthe custom of the United States toprovide social services to the Indianswho gatheired near forts and agen-

17

cies, whether they had signed a treatyor not. The present requirement-of"recognition" is a relatively recentphenomenon, and originates in ad-ministrative timidity rather than

'statutory law or Congressional policy'.It must be eliminated because it is dis-criminatory and has no sound basisin either law or traditional practice.

The first important act providing .

services to Indians, the Act of March30, 1802, authorized the president,acting on behalf of thelinited States,to perform certain services to Indiansas follows:

Sec. 13. And be it further enacted, Thatin order to promote civilization amongfriendly Indian tribes, and to securetheir friendship, it shall be lawful forthe President of the United States, tocause them to be furnished with usefuldomestic animalsmd implements ofhusbandry, and with goods or money,as' he shall judge proper, .and to ap-point such persons, from time to time,as temporary agents, to reside amongthe Indians as he shall thMk fit.

All Indians were included in this pro-vision and eastern Indians were thechief beneficiaries of it. At that timethe western tribes had not vet comeinto prolonged contact with the Unit-ed States. There was no effort toexclude any Indians in this legisla-tion:.and there should be no effortnow to exclude eastern Indians in theadministration of federal programs.

Bureau of Indian Affairs personnel

have argued that only the "recog-nized" tribes with whom they havedeveloped a recent (and incestuous)relationship should receive federalservices. In the,prolonged litigationbetween the Sioux Nation and theUnited States this very point cameinto question, and 'the Court ofClaims left no doubt how the statuto-ry history of "tribes" was to be inter-

preted:In statutes enacted and in the treatiesmade subsequent to the Act of August7, 1789, and to the present time, theseofficers.and employees engaged in theadminiStration and enforcement of

laws, treaties, and regulations, have'been considered and reCognized bythe United States and the Indians asofficers and employees of the Gov-

.ernment; and the Agenc'y facilities,

equipment, and supplies havelikewise been regarded as obligationsof the Government either as expensesnecessary and incidental to fulfillmentof the obligations assumed by theGovernment under treaties and acts of

Congress,.or as necessary and inciden-tal governmental expenses in the dis-charge by the United States of the obli-gations assumed as a party to the vari-ous treaties or in its ,ovetvign capacityas the guardian or trustee for theIndians, to protect them through theenforcement of all federal laws and

regulations.

In 1822, 3 Stat. 679. Congressabolished the Trading Houses andthereafter,.as had been the case before,

officers in the Military Service of the

War Department, known as Indianemployees, maintained posts or agen-cies at various places among the Indiantribes. This, for the most part, was truewhettu'r the tribes were, at the time, intreatil relations with the United States or

not."

This general policy had been affirmedand. interpreted in the Sandoval case

in 1913 when the Supreme Courtcommented:

Not only does the ConStitution ex-pressly authorize CongreSs to regulatecommerce 1.slith Indian tribes, butlong-continued, legislative and execu-tive usage-and an unbroken current ofjudicial decisions have attributed tothe United States as a superior andcivilized nation the power and duty ofexercising a fostering care and protec-tion twer all dependent Indian com-munities within its,borders, whetherwithin its original territory or territorysubsequently acquired, and whetherwithin or witliouthe limits of states."Legislation of major importance

passed bv Congress in this centuryalso emphasized the universal natureof federal services for Indians. TheSnyder Act of 1921 which ga-ve gen-eral responsibility to the Bureu ofIndian Affairs tg provide services toIndians without reference to specifictreaty items, is phrased as follows,.di-recting the Secretary of the Interior to:

... direct, supervise, and expend such

moneys as Congress may from time totime appropriate for the benefit, care,and assistance of the Indians Pining/t-

out tlte United States."'

Tribe IndhirN v. L , h4 1 Supp. 312, 325 (1946). Emphasis added.

"U.S. v. Sandoval, 231 C.S. 31, 45-47 (1913) Emphasis added.

***Emphasis added.

The Johnson-O'Malley Act, theprimary educational legislation of theNew Eleal era, similarly authorizesthe Secretary of the Interior:

... in his discretion, to enter into a con-tract or contractS with any State orritory having legal authority to do so,for the education, medical attention,agricultural assistance, and social wel-fare, including relief of distress, of In-dians in such State or Prritory, throughthe qualified agencies of such State orTerritory . .***

It has thus been the intent of Con-gress to provide federal services to allIndians, according to their needs,and in accordance with the federal re-s.ponsibility Jur aependentindian.communities.

The present posture of the,13.1.A.and the N.C.A .1. and N .T.C.A. is thatonly "recognized" tribes be providedservices. They cite no major legisla-tive or judicial interpretations whichwould exclude eastern Indians fromservices, .relying primarily upon thetraditional practices which have de-veloped since the Second World War."Recognition" is not an absolute de-marcation of Indian ancestry orrights, nor is it a practjee which

.

ceased with the Indian wars of thelast century. A partial listing of thosetribes that have receiyed federal rec-ognition only in this century wouldinclude:

1900 Los Coyotes1902Fallon l'aiute1903 Fort McDowell1907Santa Rosa, Cocopah,

Lavtonville1908 Morongo, Colusa

(1)

:62

4,1 .1909-Forres-MartinezI910San Pasqual, Fort Mojave,

Lovelock, Tuolumnc1911Seminole of Florida1912Skull Valley, Fort

McDermitt1913Summit Lake, Soboda,

Hannahville, ForestCounty Potawatomi

1914Kalispel, Camp Verde,Goshute, Mille LicsChippewa

1915Fort Independence1916 Shivwits.I917Papago, Kaibab, Fort Yuma,

Battle Mountain,Dresslerville, RenO-SparksColony

1918MissisSippi Choctaw1921Mission Creek1928Koosharem1930Ely Colony1934 Burns Colony1935 Ya vapai1936Bay Mills, YeringtonI937Keweenaw Bay, Prairie

Island,Stockbridge-Munsee

1938Elko 6lony, Yomba, BigCypress, Lower Sioux, St.Croix, Upper Sioux

1939Flandreau Sioux., MoleLake Chippewa, Puertocito

1940Carson Colony, Duckwater;.

Ruby Valley, XL Ranch.1941South Fork1944Shoalwater1946 Catawba1950 Ramah NavajoI962Wisconsin Winnebago1970Nooksack

1972Payson Apache.1975Sault Ste. Marie

Reviewing.this listing, and recall-ing such tribes as the Menomineeswho have recently been restored tofederal services, it is not difficult todetermine that so-called "federarrec-ognition" is a bureaucratic catchworddesigned to divide Indians from eachother on the basis of a false criterionof Indian identity. In recent years theLumbees of North Carolina and theStillagamish of western Washingtonhave attempted to get full federal rec-ognition. When the Lumbees legisla-tion came before Congress, other In-dians, most particularly the NationalCongress of American Indians, at-tempted to block it. In 1976, theTula lip tribe of Washington opposedthe efforts of the Stillagamish to getits eligibility clarified..

All of the arguments advanced Lwthe the and theTula lip tribe are frivolous and de-meaning. Most ot theM project ashortage of federal funds caused bythe adhlission of new groups to fed-eral services. The criteria alleged asdistinguishing marks of Indian iden-tity, if applied justly and consistentlyto existing federal tribes and indi-viduals, would decimate the ranks ofthe Indian community. A majority of,the officers of the N.C.A.I. do- notspeak their own trihal languages andhave mixed Indian blood. TheTulalips are in much the same condi-tion. Demanding, therefore, that theLumbees and Stillagamish meet

;

20

standards which theY themselvescannot meet is hardly a safe argu-ment to make.

There is an additional considera-tion in the case of the Lumbees:Theyhave been accused of baying blackancestors, indicating ah attitude ofracial discrimination among the op-ponents of Lumbee recognition.Several other tribes have notablymixed ancestry, although not neces-sarily black. No Indian tribe today'can claim a pure blood stock, as ifthis requirement necessarily guaran-teed Indian-ness. This reason foropposing the recognition of theLumbees, therefore, is discrimina-tory, simplistic, .and without preced-ent in Indian policy,. and against thebasic.values of both Indians andnon-Indians. -

A policy of full services to all de-pendent Indian communities wouldimmediately eliminate present dis-..cri minatory practic.es. I1 wouldsimplify eligibility requirementsand, in that respect, cut administra-tive costs. Most 61 all, it.would forcethe now-eligible tribes to share theresources of the federal governmentwith all intended recipients, restOr'.-ing to them the opportunity to prac-tice the Indian tradition of sharing

, with the less fortunate.Such a policy would.be rational

and just; but it would be politicallycontroversial fOr a time. And hereinlies the challenge to a new adminis-tration. Can it break with discrimina-tory practices Qf the past and create anew, simple, and comprehensible

Indian policy in spite of temporarycontroversies?. Can a new adminis.-tration bring justice to all Indians in

the face of criticisms which will bebrought by a select gfoup of Indians?

2. A Clarification of Tribal Membership.Traditionally it has been the. pre-

rogatiee of Indian tribes to establishtheir own meMbership: This princi-Tie of self-government has had asporadic history, however, and can-not be said to have been universallypracticed at any time in American his-tory. Prior to the establishment offormal legal relationships with theUnited States, tribal membershipwas a function of clans and families,and adoptim L'eremonies many timesbrsjught new members into a tribe,

-often to replace people killed in war.No tribe.is genetically pure, now or atany time in the historical past.

Under some of the treaties annuityrolls were created, in order that thegoyernmt.rit could efficiently distrib-ute goods and money due the tribes.When allotments were given 'out,many tribes would have a roll madeup which contained the names of allthose people the community re-garded as its members. In sometreaties mixed bloods were distin-guished from the test of the tribe andtheir -allOtment deedsoften werephrased in such a manner as to alloWthem to sell their lands quite easily..With each organization and reorgani-zation of tribcd governments, mem-bership rolls became increasingly im-

portant as a means of identifyingthose eligible for federal services.They were often used to determine ifthe federal agent had the right to'lease certain lands, or whether or notthe children of a mixed marriageshould be regarded as Indians foreducational purposes.

John Collier attempted to bring to-gether all the various types of tribalmembership during the Indian Reor-ganization Act meetings. He re-ga Med those people as Indians whostill maintained a semblance of tradi-tional culture or who had definite In-dian ancestry. At a 'number of meet--ings, traditional Indians refused toaccept Collier's definition of an In-dian, maintaining that only tribalmembers who had kept their landsshould be considered Indians. Whenformal tribal constitutions wereadopted a curious mixture of Collier'sdefinition and the traditional concep-tions was often used to determinetribal membership. In many in-stances, people of little Indian bloodwere made full Members of tribes, inother instances people of substantialIndian blood were exCluded from tri-bal membership.

Since the adoption of the IndianReorganization Act, tribal govern-

'2 4

Ments have had control of tribalmembership rolls and many of thesenow reflect the political stnicture ofthe reservation community ratherthan lineal descent frorn the originaltribe members. Termination formanytribes meant sharing a large moneysettlement and tribal membershipwas conceived as a property interestrather than a social or cultural com-mitment. Tribal officials, frightened atthe prospect of termination, or desir-ous .of obtaining as much money aspossible from the settlement, some-times admitted relatives and friendsin large numbers and excluded

_ptilple of opposite political persua-sion. Eligibility for federal' servicessuch as educational scholarships,health care, and small business loanshas become an important benefit oftribal membership. People with nological or personal involvement witha reservation community have oftenshared in services by virtue of enroll-ment, depriving or shortchangingneedier tribal members of services. Agreat deal of the present corruption ofgoyernmental services can be tra..edto this propensity to include predom-inantly white relatives on the rolls ofsome tribes. A cursory glance at thelist of scholarships made by each areaoffice every year will reveal a substan-tial.number of non-reserVation homeaddresses and, a frequency of certainfamily names. An investigation of thepercentage of Indian blOod amongthese scholarship ,recipients Mightprove enlighteniq,.

The successful conclusion.tA claims

11

against the government has usuallymeant a per capita distribution ofaward moneys. This requires the up-.dating of tribill rolls, and, dependingupon the date of the claim, new andold tribal rolls differ considerably.Thus, for example, claims for the FiveCivilized tribes, if figured on a pre-Civil War basis, would include onlypeople without black ancestors; if onthe basis of post-Civil War claims, the.Membership would include people ofblack ancestry, the slaves of the FiveCivilized tribes having been madecitizens of the tribes in treaties follow-ing the war. Claims of other tribesmight N distributed on the basis ofthe original tribal roll prio-r to theI.R.A. or the tribal roll created by thenewly authorized I.R.A. -tribal gov-ernment.

Some reservations were originallyestablished for classes..of Indians,such as "fish-eating" tribes of thePacific Northwest, or for the tribes ofa certain region. The San CarloS,Apache reservation in Arizona, forexample, was simply a gatheringplace for many small Apache bandsrounded up in the wars with theUnited, States. Over a period of timethese reservations might be namedafter the tribe that inhabited the mOstprominent settlement, as, for exam-ple, at the Quinault Reservation inWashington which has seven tribeson it but has the Quinault tribe livingat the agency. headqua,rters atTaholah. The Confederated Yakimatribe, for another Washington exam-ple, originally contained people from

many small bands, but they all be-can* YakimaS in the eyes of theBureau anr: are today so regarded.

In general, tribal groups have beenfair abou t their rolls and have allowedpeople of various tribal 'backgroundsto beCome members. But there aredefinite examples of discriminationpresent in tribal rolls also. Govern-ment boarding schools have contri-buted to the confuSion of rolls in aunique way. young people who'at-tended often married people of othertribes, giving their children a claim tomembership in more than one tribe, .

or often eliminating their childrenfrom enrollment in either tribe by fail-ing to meet particular tribal require-ments. Some people today have sucha varied background of tribal ancestrythat they may be seven-eighths In-dian blood but of less than the neces-sary amount.of any tribe to warrantmembership in it.

The.termination of some tribes hasbeen interpreted by the B.I.A. aseliminating that quantum of Indianblood represented by the terminatedtribe from consideration when de-termining eligibility for federal ser-vices. Thus a person with one-halfKlarnath blood and one-eighth WarmSprings blood becomes ineligible forfederal services and membership ineither tribe, but is in fact more Indianin blood and appearance than a per-son of one-eighth Indian blood en-rolled on another reservation. The in-justice of this.con fused system of de-fining tribal membership is apparent.Some tribe's, to avoid such problems,

simply enroll the children as posses-sing that quantum of Indian bloodwhich the parents represent withoutdetermining individual tribal per-cen tages.

On the other hand, reorganizationof some tribes has led members,aware of the one-fourth' blood quan-tum requirement for scime federalservices, to change the blood quan-tum for their own convenience, mak-ing everyone on a roll at A certain datea ."full blood," thus pres&rying foranother generation federal eligibilityfor their children and grandchildren.To take an example, one can trace thepresent membership of the Quinaulttribe backwards using governmentrecords, and discover that many of itspresent members have a mere trace ofIndian blood, their quantum havingbeen, raised several times since theturn of the century in order to keepthem eligible for federal.services.

The Osage Tribe of Oklahoma hadits rolls closed in 1906 and its mineralestate distributed in the form of"Head-Rights". to its existing mem-bership. PeriOns jnheriting theHeadrights were tribal Members,those not inheriting were not tribalmembers. In the course of yearsrnany Headrights, being proOerty in-terests, passed to people of little or noIndian blood and a substantialnumber of 1.-ple of Indian blood,inheriting no Headrights, becamelegally non-Indians. There is a .par,ticular injustice in this situation be-cause in addition to the wealth whichOsage I leadrights assure an indi-

I .

-)3

*z 6

viduaE he receives eligibility for addi-tional rights and services which hedoes not usually need. By the sametoken, persons of predominantlyOsage blood, and without incomefrom Headrights, may be denied anyfederal services whatsoever.

Some tribes trace descent along thefather's line and others along themother's._It is possible to have a fullbloOd Indian who is ineligible fortribal membership along either hisfather's or mother's sides, who, if thesituation were reversed, would havebeen eligible .for membership in twotribes.

With all of this confusion, it is a rar-ity for a tribe to have a complete roll.Elections in some tribes are highly in-formal affairs, where by means of ashouting match within a communityhall eligible voters are determined.The approval of tribal constitutions,amendment of them, and acc tanceof claims settlements, all dedlargely on the voting of tribal mein-bers. Many actions taken in the pastby tribal governments have not beenlegal actions because the tribe has infact no reliable roll to figure its mem-bership or to .figure the necessary30% who must vote to make the elec-tion a legal one: In cases where a tribewishes to amend or abolish its con-stitution, and the most prominentcase occurred during the WoundedKnee occupation in 1973, petitionscontaining names of tribal membershave been denied validity on thegrounds that they did not representthe necessary percentage of the

24

membership, the decision comingfrom the Interior Department whichfully knew that no adequate rollexisted which could possibly be usedto determine the proper figures andnames.

The present membership of most.Indian tribes is a result .of fortuitouscircumstances, a dash of federalrecord-keeping, political faVorsamong tribal members, and:irrationaladministrative decisions made byfederal employees. To accuse easternIndian communities of lacking formaltribe rolls is, in a sense, to accusethem of failure to engage in im-moralities and illegalities. The solu-tion to this problem is obvious andsimple, although controversial.

A high priority should be the prep-aration of adequately documentedrolls for every tribe. Scholars can beengaged by the federal governmentor by the tribe, and rolls can be com-posed which reflect the historical cir-cumstances of each tribal situation. Ifthe criterion for membership remainsstill at one-quarter of Indian bloodheritage (though why is such a crite-rion necessary at all?), all federal andprivate recOrds can and should beused to create a careful and accurateroll of tribal membership.

Completion of the rolls could be fol-lowed by the issuance of roll numbersusing a standardized system capableof being handled by computer.

Tribes should be encouraged 'toissue their own tribal identificationcards which could be used to verifyhunting and fishing rights, jurisdic-

Z

tional disputes, and eligibilitylortribal programs. Tribal electionswould require the use of tribal rollnumbers and would achieve a fargreater consensus of tribal desiresthan the present ad-hoc methods ofarriving at decisions. The presentpopular slogan in Indian country isthe "protection of tribal sovereigntCwhich must remain somewhat of LImystery without tribes being able tomake an accuraft count of theirmembership.

'Such a program, again, will not bepopular initially with some Indianpolitical leaders: Some of those havedepended on the lack of accurate rollsto maintain themselves in office. Theestablishment of accurate rolls willeliminate their ability to manipulateeksctions. Some, no doubt, will com-plain that establishing an accurate rollinterferes with the established rightof an Indian tribe to determine itsmembership. In recent Years this doc-trine has been breaking down. Theapplication of the 1968 Civil RightsAct to tribal governments has in-creased the pressure to open mem-beNhip to Indians on the basis ofmore reasonable criteria, as tribal

membership is seen more and moreas a property right rather,than a citi-zenship status. But continued depri-vation of the rights of individual In=dians by tribal governments usingthe shield of tribal sovereignty ismuch more destructive of Indiancommunities in the long run than re-vision of the rolls.

The Indian exclusionary stance isverv peculiar. The Jews, rather thaneliminate people Over the centuries,have gone out Of their way to ensure

.that their culture, 'traditions, andmembershiphave grown, by adopt-ing an inclusive, and accurate, ren-dering of the membership of theircommunitikz: To date Indians, theireyes on college scholarship, oil royal-ties, and special privileges, havetaken the reverse tack, eliminatingpeople unjustly from participation inthe affairs of their communities. Themorality of this issue, like the moral-ity of a universal federal recognitionof all dependent Indian com-.munities, makes it a difficult short-term political problem but a neces-sary one to meet, it solutions to In-dian problems are to be found.

3. A Standard Definition of the Status of an Indian Tribe.Beginning %vith the landmark deci-

sion, Cherohce Natio)! u. C;corNia, In-dian tribes.ha ve been understood in avariety of wavs. They are sometimesconsidered "dependent, domestic

nations," and at other times called"wdrds" of the government. Case lawgives equal weight to both theoriesand thus Indians are always in a stateOf confusion about the status oc their

tribal governments. When it is con-venient for the government to declare

them "dependent, domestic na-tions," thereby escaping.liabilities for

actions it has encouraged or forced atribe to take, it does so. When the

goVernment wishes to exert totalcontrol over tribal communities itcharacterizes tribes as its "wards,"depriving the communities of anyvoice in their lives. States frequentlytake advantage of this situation, pre-tending that tribal governments arevestiges of the past or that they are re-ally social clubs with few political orself-governing powers.

Almost every area of political andproperty rights is affected by these-nebulous definitions. Nor is all theconfusion caused by the failure ofCongress to define adequately thestatus of a tribe. Some tribes havefewer than 100 members and a greatmany have lost most of their originalland base, rendering it difficult ineither case to conceive how theycould exercise any significant degreeof political sovereignty. Indians badly

need contemporary definitions. Anomnibus bill containing comprehen-sive definitions of the status andpowers of a "tribe," a "band," a"community," and a "nation" of In-dians would clarify this situation.

Different categories of politicalexistence could be described whichwould provide a measure of self-governMent, exemption from oner-ous or restricting interference by stategovernments, and a measure of pro-tection from the arbitrary exercises ofdiscretionary powers by federal offi-cials. Clear distinctions could bemade among the political, municipal,corporate, educational, and culturalaspects of tribal existence, eliminat-ing much of the confusion which nowexists concerning the scope of in-terests that are represented in tribalgovernment. Extensive field hearingson this subject should be held andmuch time and effort devoted to ex-plaining to Indians their present situ-ation and the benefits and detrimentswhich could come from clarificationof status.

4. The Creation of a "Court of Indian Affairs."

Most, if not all, of the legal con-cepts and doctrines that describe therights and status of Indians and theirtribes derive ,from,.the events and de-velopments of American history.Forced migrations, the discovery ofgold on tribal lands, the coalition ofseveral tribes to share hunting

26

grounds, the coming of the mis-sionaries, and the drives for state-hood in the West have all contributedto the formation of Indian legalrights. No doctrine of Indian law de-rives from the logical unfolding of amajor legal concept. If we can identifyany single concept that seems to de-

scribe the.boundaries of the Indianlegal situation, it might be the treaty;but even with respect to treaties,there is still sufficient latitude for stateor federal courts to provide their owninterpretations of historical facts andto articulate those conclusions whichseem common sense or advantage-ous to them.

Tribes and their members seem tobecome embroiled in litigation whichoften has as its sok purp,se the de-struction of remaining treaty -rights.In some cases, notably in the PacificNorthwest, tribes have taken theinitiative in asserting the-interpreta-tion which must be given to treatyprovisions..But it remains a fact ofcontemporary life that every Year avariety of courts hear and decidecases involving not simply the rightsof present tribal members, but therights and property intervsts of futuregenerations.

In order to reach a decision a courtshould properly consider all the evi-dence concerning an issuethat it canadequately and conscientiouslygather. When we apply this rule toIndian treaty cases we are talkingabout the massive docunwntation ofthe times and conditions underwhich treaties were signed and stat-.utes passed. And treaties rarely re-ceive adequate attention. Often statecourts will rule in favor of state agen-des without considering the treaty.Appeal to federal courts is often takenby Indians' lawyers on grounds otherthan the treaty, to preclude any dis-cussion of it and its complicating his-

27

tory. In short, the very document thatbinds. Indians to the United States isgenerally kft out of efforts to definethe relationship which it did much tocreate.

In 1946, Congress set up the IndianClaims Commission and this legisla-tion allowed the tribes to file clainisagainst the goYernment that hadaccumulated during the previouscentury. Part of the authorizing legis-lation required that the Commissioninvestigate the claims to determine ifthey were valid; the commission,- furthe most part, has not eXercised thisinvestigative function, avoiding theintent of Congress in establishing it.But two things can, nevertheless, belearned from its experience.

The first lesson is that one singlecommission was used to gather allthe claims against the United States,thus eliminating the need for tribes tofile-in every court imaginable. Thecommissioners, because they had todeal with orw subject matterIndianlawhave become more know-ledgeable than most judges in thekderal system about Indian historyMany of its decisions were just.

The second lesson is thtit the casesinvolved more than a simple re4lingof case law. They included reportsfrom scholars who could present asfully as possible the circumstancessurrounding, each claim. Thepeculiaritks of Indian history becamean important Octor in the determina-tion of kgal-rights and respon-sibilities.

The present Indian Claims Com-

mission shOuld be changed into apermanent court for the settlement ofall suits arising from or i-elating to theinterpretation of treaties and statutesaffecting Indian tribes. Tribes wouldhave to file suit against governmentand government officialslocal,state, and federalin this court andthis court only. The converse wouldalso be true. The court should havecommissioners whose job would beto resolve disputes between Indiansand othei" politica l e.ntities, usingboth arbitration techniques and theordinary legal procedures a Mi rules ofevidence. The court should have con-tinuing powers of supervision formonitoring its decisions. Particularlyin the field of water rights and hunt-ing and fishing rights, such continu-ing supervision would be necessary.

The federal court system alreadyhas several specialized courts andcommissions. Establishment Of this

one would eliminate frivolous ormalign law suits by states and localgovernments, in their own courts,and therefore they might have objec-tions to its .creation; but the power ofCongress to regulate coMmerce withthe Indian tribes is paramount. Thepower of this court to examine thelegal problems of Indians in intelligi-ble contexts that consider all factorsought not to be opposed by the stateand local .governments, if they werebrought to see that such a courtwould also eliminate longstandingproblems of jurisdiction which haVeplagad them for many decades. In-dians, once they understood the roleof such a court in protecting theirrights, would probably support itscreation. It could be initiated withoutany of the other reforms that havebeen suggested in this paper, thoughit naturally complements a largertransformation of Indian affairs.

5. Arbitration of Long-standing Claims.

The creation of the Indian ClaimsCommission allowed Indians whohad land wrongfully taken from themto file claims with the hope of recover-ing some Monetary compensation.Behind this-avowed purpose existeda more sinister goal, and that .was thevalidating of certain land cessionswhich hadbeen less than legal whenthey originally happened. A tribe fil-ing 'a claim against the government

3128

must allege that it has had lands ir-revocably taken from it. The IndianClaims Commission then determinesthe date of taking and the value at thetime of taking: With lands illegallytaken, however, the allegation by atribe that the lands are lost operatesas an Adorsement of the loss, and anadmission that money will be a justcompensation. The taking Of somelands .was so blatanttV illegal as to

ts.

preclude 'the Ilse of any doctrine of .

law or justice justifying its confisca-tion. The tribes in these cases shouldhave had the right to sue for the pres-ent title of the lands;'but they did not.

At least two such cases exist today:the Black Hills claim of the Sioux

.Nation and the claim for a majorportion of Nevada by the WesternShoshones. In both cases the treatiesmake it absolutely clear that the gov-ernment either had no .intention oftaking the land or that it foresworeany.further land cessions exceptunder %yell-defined circumstances.Both of these cases are partially con-cluded in the Indian Claims Commis-sion, and are the subject of great con-troversy because rulings of theCommission do not conceivably fitthe historical orcumstances. Noamount of money can erase the fed-ings of the peoples of these two tribesthat a great injustice has been donethem.

Treaties should not, in the firstplace, be the subject of regular litiga-tion be(ause they are essentially.compads orcovenants and are not in-tended to create specific legal rights.Most nations arbitrate their treatydisputes; they do not htigate them.Arbitration is a much more compati-ble form of resolvinga dispute involv-ing treaty rights and land cessions,because historical records and recol-kctions indicate that intangible con-siderations were always part of thenegotiations. Indians surrendered agreat deal of their cultural indepen-dence with the cession of bnds and

the signing of treaties, and thus aconsiderable part of the resolution ofthese disputes involves-an equitableproportioning of what can stiH be rec;ognized, i.e. the tangible assets in-volved in the, transactions, the cul-tural values and traditions havingnow largely been lost without anadequate means of preserving or re-.placing them.

Much 'of the continuing con-troVersy, at least with respect to theSioux,involves a determination of in-tangible treaty rights. Courts andfederatofficials may argue that thesetreaties have afready been, settled inthe courts. But the vast majority ofthe Sioux feel that they were givenshort shrifi there, and the recordwould seem to indicate they are right.Thus whether the courts declare thesubject dosed or not, dissatisfactionwill continue to fester until the'Siouxperceive a fair resolution in their case.Other tribes will continue to point tothe confiscatipn of the Black Hills, orthe Nevada desert, as examples of theperfidy of the white man, As long asthese cases remain unresolved theywill continue to poison the atmos-phere in which the federal relation-ship is understood by Indians. '

The likehest road to solution forthese disputes and others .of similarnature (the present contiuversies in-voking bnds in New York, .Maine,Massachusetts, and Connecticut, forexample), is the creation of severalspecial commissions.with the powerto arbitrate.

Restoration of some of the lands

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would undoubtedly be included inany.equitable solution. There is al-ready precedent for the restoration of

lands illegally and Wrongfully taken.Beginning in 1924 and continuinguntil 1937, the government providedan attorney for the pueblos of NewMexico to enable them to removewhite settlers who had encroachedon their lands during the preceding'century. Many of these whites had asgood claim to the property as do any

of the people now residing in the dis-puted areas in South Dakota andNevada, or in the eastern disputedlands. Yet the operation of the law,once the government had deter-mined to resolve the dispute justly,proceeded with a minimtim of vio,lence and disruption. Similar resultscould be expected from a thoughtfulapproach to the Black Hills, Nevada,and eastern claims.

6. Rejuvenation of the Indian Land Base.

In recent years the administrationshave taken a more just and realisticapproach to the problem of restoringanindian land base. Submarginallands have been returned to tribes in,Minnesota, Montana, North andSouth Dakota, and other states. Sa -cred lands such as Blue Lake in NewMexico and Mount Adams inWashington have been returned, andthere has 'been a better spirit .in thefederal establishment about .rightingold wrongs. But almost all of thelands restored have been ones heldby a department oc agency of thegovernment, which had been wrong-fully taken, and which to restorenee'cled only an administrativechange within the federal establish-ment itself.

Of more urgency is the problem ofincreasing fractionation of Indianland holdings and the loss of reserva-

tion lands through forced sales. TheBureau of Indian Affairs has a nega-tive attitude toward the consolidationof reservation lands and is out oftouch with.Indian desires. In a recenttrip to South Dakota, CommissionerMorris Thompson,apologized to thetribes for the Bureau's failure to sell

- their land more rapidly. The chairmanof the Standing Rock Sioux informedthe Commissioner that rather thandesiring to sell .lands, the tribeswanted fund's to purchase lands,noting that 23 white ranchers oh hisreservation desired to sell theirranches to the tribe.

The original allotments on most re-servations have long since been di-vided into fractional interests; severalgenerations have passed, and theheirship problem now looms verylarge for many tribes. The problemhas been investigated several times

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by Congressional committees, buttheir recommeridations have gener-ally in volved such complicatedmethods that Indians have rejectedtheir proposals. The response of theBureau to this problem has been toput it all on-a-computer. This solutionhas been no solution at all, for itmerely seeks to record the changingof ownership patterns and not to stoptheir growing complexity.

The administrative costs of heir-,ship and.unconsolidated reservationlands, in terms of record-keeping,policing, zoning, allocation of roadfunds, and other related problems, isimmense. The bureaucratic and Con-gressional reluctance to provide loanfunds for tribes to purchase lands isbased upon the belief that IndiansmuSt change,their methods of landholding to conform to Anglo princi-ples of land Use. The formulas put .forth to solve the land question al-most always involve placing largeamounts of Indian land on the openmarket where whites. and Indiansmust compete for it.

Today the situation is changing,and whites in large numbers nolonger seek Indian lands; 'instead,many want to selltireiflands locatedwithin the reservations. The gov-ernment must confront this new situ-ation. In the time since the last "heir-ship study" (completed in the late

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1950s), a substantial amount of.money has been wasted in adminis-trative expenses which could havebeen saved with a compensable landacquisition program. To continuethings as they are will simply wastemore money on enormous record-keeping while increasing the confu-sion regarding the consolidation ofreservatiori lands.

The government must not allowthis 'to remain unresolved. It can besolved through grant and loan pro-grams, wherein the government aidsin purchasing lands that would con-tribute to the creation of a contigu-ous reservation land base. Ratherthan spending millions of dollars-an-nually to keep records ()fan erodingIndian land base, the governmentshould begin .an aggressive purchaseprOgram whereby it consolidateslarge tracts of land in th.0 tribe'sname.

A land repurchase pfpgram even inthe amount of $100 million a year forten years would still be a bargain.,Tribal members could be resettled onthe repurchased laqs, and placed ina training program for farming andranching, thus reducing the un-em.ployment and welfare costs. Thereare m'aximum benefits to this pro-gram and minimum risks. It would,however, require a long-term com-mitment by the government.

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7. Univeisal Eligibility for Government Aid, Based on Need.

The federal government providesmany services for individual Indians.'It provides health care, scholarships,massiye amounts of money for pri-mary and secondary education, voca-tional training and counseling,employment assistance, miscellane-ous services such as land sales-andprobate of wilk, and trustee functionsrelated to natural resources and prop-erty. For these services, the Bureau ofIndian Affairs spends an inordinateamount of time and money determin-ing eligibility. Particularly in the fieldof education, eligibility requirementsnow approach the ridiculous. Indianstudents are given or denied educa-tional grants on the basis-of whetheror not they reside on trust lands. The,major task of educational counselorson many reservations appears to bedriving around checking out the resi-dences of students. The same can besaid, although to a lesser degree; ofpeople working in the field ot Indianhealth.

Once students are enrolled in col;lege they can, if they want to and areclever, remain there almost indefi-nitely, adding and dropping coursesand, receiving a variety of federalgrants and loans. The federal educa-tional program severely restricts en-trance into college because of out-moded blood-quantum and resi-dency requirements, but then fails tOexercise monitoring functions. Onthe other hand, grants in some' areas

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are far below the amount necessary toenable a student to complete college,and often the funds actually arrivelong after they are needed.

If tribal memberships are updatedand social services eligibility deter-mined from tribal rolls, the massivebureaucratic structure which now de-termines eligibility can be eliminated.Moreover, varidus social welfareprograms of the last two decadeshave brought to the general publicmuch the same services which In-dians alone used to receive. The timeis coming when Indian health andeducational services should becomepart of these programs, rather thancontinue in isolation. Preparing forthis eventuality by transformingexisting inefficient Indian programsinto more effectively administeredprograms paralleling the national-health and educational services may-be the post constructive manner ofbringing Indians into the larger soci-ety-of common needs, without as-saulting their identities.

The first step can be made with col-,lege scholarships. All Indian youngpeople capable of benefiting from col-lege should be eligible for post-high-school education. Sliding scale chartsof college or vocational school ex-penses can be constructed which can:-provide guidelines for grants.- Healthservices could work, as suppleMentalprograms to existing public health,Medicare, and Medicaid programs.

Welfare and unemployment fundsshould be directed to the tribal gov-ernments under strict accounting.They can be apportioned to the largertribes in block grants, and they be re-quired to use such funds to employpeople to-perform social services andconservation work on the reserva-tion. Federal monitors from the lineagencies could be assigned to eachreservation, in place of the presentvariety of social welfare workers, to

check on expenditures and opera-tions. Keeping'such functions fromthe Bureau of Indian Affairs wouldhelp to clarify its role as protector andpreserver of Indian rights. As thetribes gained in ability and self-confidence, they could assume, ifthey wished, the functions of landappraisal, probate of wills, mainte-nance of roads, and other tasks nowperformed by the Bureau.

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CONCLUSIONS

The program outlined above isobviously an ambitious and contro-versial one'. The traditional exercise ofimplicit powers over Indians byCongress is great! ' reduced or disci-plined by: (1) eliiiiinating the law -created distinctkIms among Indiancommunities; (2) revising and clarify--ing tribal membership; (3) creating anew set of definitions of the politicalstatus of an Indian nation, tribe, orbond; (4) creating a single court tohandle all controversial legal issuesbetween an Indian tribe and otherpolitical entities, wherein the properhistorical and cultural considerationsnecessary to understand. the Indianviewpoints would beconie part of theprocess of problem-solving and re-Conciliation; (5) arbitrating, and de-finitively settling, longstandingclaims which have created mistrust ofthe government; (6) consolidatingand restoring the reservation land'base, thus providing a sensible andrealistic basis for communal e \ is-tence; and (7) providing more.effi-cient services to individuals receivingthe benefits of social programs.

Previous administrations havegenerally chosen to cover up federalfaikires, feariul that they might haveto assume responsibility for past er-.rors. They have promised generalitiesof reform, failed to deal with specificstructural changes, and concludedtheir terms in office on a note of disil-lusionment with the conditions of

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.Indians, which have often beenWorse at the end of their terms than atthe beginnings. To the contrary, theNew Deal, radically reVising thestructure of Indian affairs, is generallyseen by Indians as the most success-ful administration in this century.

Any of the above,suggested re-forms can be put into effect and thesituation of Indians would be dramat-ically Improved. But the refornis areorganically related and ilundertakentogether (and without the usual fan-fare which accompanies proposedchanges in Indian affairs), within afew wars a dramatic change..for thebetter would be evident in Indiancountry.

The most important single elementin a new administration is not the di-rection and programs it undertakes,but that it give to them ethical leader-ship. Indians have seen disregard forfederal law and arbitrary discretionfor too many decades. Some havecome to b lieve that the federal gov-ernment engages in a deadly game ofreward and punishment, in whichservices ond people are pawnsin themanipulation of larger programs andpolicies. An administration whichwould require a just and even appli-cation of laws and a concern forcommunities, rather than for a groupof pliable leaders parroting the gov-ernment's line, would be welciimed,respected, and trusted. The moraltone set by an administration is thiisas important_ as any changes It maymake.

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Vine Deloria, lr.1 Standing Rock Sioux, is one of the coun-try's principal commentators on Indian affairs. He holdsdegrees in both theology and law. From 1964-67 he was ex-ecutive director of the National Congress of American In-dians, and is a former chairman of the lnstitOte for Develop-

. ment of Indian Law. I- fis books include Custer Died For Hii

Sins (1969), tVelilk, )i)u Listen (1970), and God is Red (1973).

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