Tribal-federal and tribal-state relations: an overview



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PART 4
TRIBAL-FEDERAL AND TRIBAL-STATE RELATIONS: AN OVERVIEW
Chapter 12 reviews the historical development, as well as the current status, of the tribal-federal relationship, focus­ing on the U.S. government’s responsibilities to tribes and

the way in which the federal government carries out these responsibilities.

Not only the federal government but state governments as well have repeatedly threatened tribal sovereignty by at­tempting to confiscate Indian lands, water, and other re­sources and by exerting jurisdiction and taxation rights over reservations. Chapter 13 examines the source of these con­flicts and explores the methods used by some tribes to defuse potential conflicts and cooperate with state governments.

Finally, chapter 14 summarizes the source and powers of tribal sovereignty and the present limitations on tribal author­ity. In conclusion, the options that tribal governments have in directing their future development are briefly explored.

255

CHAPTER 12
THE TRIBAL-FEDERAL RELATIONSHIP

The United States has frequently changed the nature of its relationship with the Indian nations. It has treated tribes as international sovereigns, domestic dependent nations, wards in need of protection, and quasi-sovereign governments. These differing definitions reflect federal policies that have shifted between treating tribes as separate political entities and attempting to integrate them into mainstream America.

The federal government today describes its relationship with tribes as a trust relationship. This relationship has ex­isted for more than two centuries. Its origins lie in tradition, international law, judicial decisions, legislation, and notions of fairness and humanity. Over the years it has undergone many changes and reinterpretations as the nation’s Indian policy has changed. The tribal-federal relationship began as an equal relationship between two independent sovereigns (see table 12-1). By the late 1800s, the courts had trans­formed the tribes’ protectorate status into that of wards un­der the total protection of a guardian. Today the relationship is referred to as a trust relationship that operates within a government-government setting.

From the view of many tribal people, however, the Indian

~‘ nations’ relationship with the federal government has never changed. Indian nations originally were, and continue to be, sovereign nations. Both parties do agree that the gov­ernment-government relationship tribes maintain with the United States is based on the inherent sovereignty of each. Tribes have a right to self-determination, including the right to operate their own governments, control their own re­sources, and protect their own culture. The United States promised to protect remaining tribal lands and existence in exchange for cessions of vast amounts of land and an end to hostilities. The trust relationship has been acknowl­edged in treaties, congressional legislation, and executive proclamations.
THE PROTECTORATE RELATIONSHIP
As chapter 3 demonstrated, the early relationships between Europeans and the Indian nations centered around the im­portant role Indian tribes played in the competition between England, France, and Spain. Vying for Indian support, the European powers signed more than five hundred treaties with various Indian nations. These treaties, which were

governed by international law, or the set of laws covering interaction among nations, usually defined the relationship



257

258

TRIBAL~FEDERAL AND TRIBAL-STAn RELATIONS

Development of the Federal-Tribal Relationship

Dates Relationship Tribes’


~

sovereign to Ordinance sovereigns

international 1790 Trade &

sovereign Intercourse Acts

Act govemment and dependent

~
193O~ssilatio~7Ea7~pf~ftm11

making of protection

1885 Major Crimes Act

1887 Allotment Act

~

government tion Act (Wheeler- government- sovereigns



Howard Act) government and

~

1953 Public Law 280 of of status



Urban Relocation relationship

present determination Act government- dependent

1975 Indian Self-Deter- government nation/quasi

mination Act and trust sovereigns

1978 Indian Child relationship

Welfare Act

1978 Indian Religious

Freedom Act


between the two parties as a protectorate. Under interna­tional law a protectorate is established when a weaker power accepts, without loss of sovereignty, the protection of a stronger power. In return for European protection and trade concessions, Indian nations agreed to provide friendship, military alliance, and land.

When the United States gained independence, it followed the lead of its colonial predecessors and treated the Indian nations as international sovereigns. It exerted no control over the tribes but related to them, as it did to England or to France, according to its constitutional authority to conclude treaties, wage war, and engage in commerce with other nations. Early treaties between the United States and the In­dian nations generally dealt with issues of peace and war,



Table 12-1.

Policy

Major Laws

THE TRIBAL-FEDERAL RELATIONSHIP

259

boundaries, passports, extradition, and foreign relations. In return for Indian friendship, land, and military help the United States agreed to provide protection, trade goods, and money.

Early domestic legislation, such as the 1787 Northwest Ordinance and the trade and intercourse acts of the 1790s, supported the protectorate relationship by helping to carry out the government’s agreement to protect tribal lands from unlawful settlement and fraudulent land dealing by non-Indians. The Northwest Ordinance promised that Indian “property shall never be taken without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed.” The 1790 Trade and Intercourse Act protected tribes against settlers’ illegal land purchases by forbidding states and individuals from buying tribal lands. Only the fed­eral government could purchase Indian lands.

In 1831 and 1832 the Supreme Court became involved in defining the status of Indian nations and their relationship to the United States. In 1830 the Cherokees sued the United States as a foreign nation, arguing that Georgia’s laws did not apply to Cherokee lands and government (see chapter 4). Chief Justice John Marshall evaded the issue by ruling that the tribe was not a foreign nation but a domestic dependent nation.



The next year Marshall further explained the tribes’ rela­tionship to the United States and their rights within that re­lationship in Worcester v. Georgia (see chapter 4). In this ruling Marshall emphasized that the Cherokees were a na­tion, a distinct political community with legal rights to their land and full authority within those lands. Their treaties were as valid as the treaties the United States had made with European nations. ‘While it was true that the tribes had placed themselves under the protection of the United States, Marshall stressed that the relationship “was that of a nation claiming and receiving the protection of one more powerful; not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.” This re­lationship, according to Marshall, was defined as a protector­ate. Tribes had not lost their sovereignty; they had merely accepted another government’s offer of protection in return for land cessions and friendship.
THE GUARDIANSHIP DOCTRINE
By the second half of the 1800s the country had changed its Indian policy from maintained separation to assimilation. With this change came a new interpretation of the protector­ate relationship Marshall had described in the 1832 Worces­ter decision. In 1883, the Supreme Court ruled in the Crow Dog case (see chapter 5) that federal courts did not have jurisdiction over the murder of one Indian by another in Indian country. Angered by the Court’s ruling, Congress

That instrument [the Constitu­tion) confers on Congress the powers of war and peace; of mak­ing treaties and of regulating commerce with foreign nations, and among the several states and with the Indian tribes. These powers comprehend all that is re­quired for our intercourse with the Indians.
Worcester v. Georgia, 1832

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quickly passed the Major Crimes Act of 1885 (see chapters 5 and 11). A year later, in U.S. v. Kagama, the Supreme Court reviewed the constitutionality of this act.

This time the Court held that Congress could assume criminal jurisdiction over tribes because of its role as guard­ian to the tribes. Tribes, the Court stated, were the nation’s wards. They were also, according to the Court, weak and helpless. Hence the United States had the duty—and the right—to protect them. This decision changed the protector­ate relationship into a guardianship relationship. The protec­torate relationship, which emphasized tribal sovereignty, had limited federal control over tribes. The guardianship rela­tionship functioned as a source of federal control over tribes.

A 1903 Supreme Court ruling (in Lone Wolf v. Hitchcock; see chapter 5) indicated the degree of power the federal gov­ernment could assume under the guardianship doctrine. The Court ruled in this case that the federal government had the right to take Indian lands despite a treaty requiring prior Indian approval. The Court stated that Congress had ple­nary—or total—control over its wards. The federal govern­ment alone could determine what constituted “protection” and how to implement it.



The Lone Wolf decision typified guardianship-era thought that the guardianship relationship gave the federal govern­ment unlimited power over tribes. The courts repeatedly ruled that the federal government’s duty to protect Indians gave it full authority to do whatever it pleased. Tribes could be protected from states and individuals, but they had no protection against the federal government. This way of think­ing prevailed until the 1930s, when the courts began to limit Congress’s authority over Indians and Indian lands.

A case from 1935 provides an example of such limitation. In the 1870s the U.S. government made a surveying error that gave a section of Muscogee lands to the Sac and Fox tribe. In 1891 the government sold this land, along with the rest of the Sac and Fox Reservation, to white settlers. In 1935 the Muscogees sued the government over the loss of their lands, and the Supreme Court ruled in the tribe’s favor. It was true, the Court said, that the Muscogees were wards of the federal government and subject to the government’s au­thority in managing their property. Nevertheless, the govern­ment’s control over Muscogee lands was not absolute. The federal government could not take Indian lands without pay­ing “just compensation for them.., for that would not be an exercise of guardianship, but an act of confiscation.” Indian lands guaranteed by treaty or by an act of Congress were protected, the Court ruled, by the Fifth Amendment to the Constitution. The Fifth Amendment guarantees that private property cannot be taken without due process of law and just compensation. The Court ruled that while Congress could take Indian lands protected by treaty, it had to pay the tribes for their loss. In this and other cases the courts began to



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emphasize that Congress had certain obligations to protect tribal rights. Through reinterpretation by the courts, the guardianship relationship has gradually become today’s trust relationship.


CURRENT STATUS OF THE TRIBAL-FEDERAL

TRUST RELATIONSHIP


The source of the trust relationship lies in international law, treaties, legislation, and judicial decisions. Since legislation is continually being passed and courts are continually decid­ing cases, the trust relationship is a constantly evolving one. Presently, the law states that the United States is responsible for protecting Indian lands and resources, providing social services such as health and educational benefits, and pre­

Rally on the Capitol steps, July 17, 1978, Washington, D.C., at the end of the Longest Walk protest march. (Courtesy Akwesasne Notes.)



262 TRIBAL-FEDERAL AND TRIBAL-STATE RELATIONS

serving tribal autonomy. These rights and benefits are owed to tribes as a result of promises made by the federal govern­ment in return for the cession of more than 97 percent of Indian land to non-Indians.


Protecting Tribal Property

Protecting tribal property is the most clearly defined and im­portant aspect of the government’s trust relationship. Indian tribes ceded large areas of land to the federal government in return for a promise of protection for their remaining lands and resources. This promise, the courts have concluded, ex­tends to protecting lands; resources, such as minerals and timber; tribal funds; and water, hunting, and fishing rights. In addition, tribes are protected from state taxation of tribal lands and resources.



The federal government’s obligation to protect Indian lands is stated clearly in numerous treaties, the Northwest Ordinance, the trade and intercourse acts, and many court cases. The Bureau of Indian Affairs is responsible for oversee­ing 53 million acres of Indian trust lands in the continental United States (10 million of which is in Indian-owned allot­ments) and 40 million acres in Alaska. As trustee, the federal government must prevent this land from being taken or mis­used by federal agencies, the states, or private individuals.

The same federal obligation protects surface and subsur­face resources. It is estimated that 30 percent of all coal, 50 to 80 percent of all uranium, and 5 to 10 percent of all oil and gas reserves in the United States lie on Indian lands. One-fourth of all tribal lands are forested, with fifty-seven reservations depending substantially on income from timber sales. As trustee, the United States is obligated to assist tribes in identifying and developing these resources and preventing their misuse or mismanagement.

On many reservations, developing tribal resources and economies depends on an adequate water supply. In the semiarid west, where the scarce water supply is already over­used, tribes are finding themselves in serious competition for water with states, businesses, and private individuals. Water rights are a part of the reserved-rights doctrine. When tribes ceded large amounts of their lands to the federal government and kept a smaller portion for themselves as a reservation, they also, by implication, kept for themselves enough water to make the land productive. Congress is responsible for en­suring that tribes have sufficient water for agriculture, min­ing, fishing, or other economic needs. Chapter 13 discusses how this responsibility, along with the responsibility to pro­tect hunting and fishing rights, has placed the federal gov­ernment as trustee and some tribes in direct conflict with many states.

Many treaties specifically guarantee to tribes hunting and

fishing rights both on-reservation and off. The courts have

further ruled that, unless specifically denied, all treaties con-



THE TRIBAL-FEDERAL RELATIONSHIP 263

tam an implicit right to hunt and fish within reservation boundaries. Tribal hunting and fishing rights have often met with intense opposition from non-Indians. Indians in the Northwest and Great Lakes regions have suffered beat­ings and other forms of violence for exercising their fishing rights. The federal government has sued a number of states in an effort to protect Indian hunting and fishing rights.

The federal courts have ruled that when protecting tribal property the government must meet the highest standards of loyalty, good faith, honesty, and reasonable care and skill.

“Reasonable care and skill” is also required in managing tribal funds. The Bureau of Indian Affairs, with the assistance of a private investment firm, administers more than $1.8 bil­lion belonging to Indian tribes and individuals. This money comes primarily from the sale or lease of trust resources, from tribally owned businesses, and from cash awards given by the Indian Claims Commission and other federal courts. The government, as the manager of these funds, must ensure that the monies are wisely invested.


Providing Services
In its earliest days, the U.S. government offered simple ser­vices to the Indian nations to keep them as allies against the British and Spanish. The practice of providing goods and services for Indian lands and friendship continued. In 1819, Congress appropriated money to train adult Indians in farm­ing and to educate Indian children in reading, writing, and

~ arithmetic. This appropriation marked the beginning of a na­tional policy to teach Indians the ways of whites. If Indians became farmers, like non-Indians, government officials rea­soned, they would no longer need hunting grounds, and the United States could, in good conscience, take away their lands.

Throughout the 1820s the government continued to offer goods and services to pacify or “civilize” tribes that were be­ing evicted from their traditional lands. During this era entire tribes were forced onto lands unsuitable to their ways of life and inadequate for their needs. The forest-dwelling Shaw­nees, for example, were moved to the dry plains of Kansas; the mountain-bred Cherokees, to Oklahoma. Many hunting tribes were disarmed; others were forced to move during the winter and leave behind most of their stored food. The tribes tried to provide for themselves, but by 1865 the disruption of their ways of life had led to staggering numbers of poor, sick, and starving Indians scattered in misery across the country. At this time the idea began to take shape that the Indians were a special responsibility of the U.S. government. After the Civil War, Congress, acting out of belated concern for the people it had nearly destroyed, called upon the presi­dent to give needy tribes emergency food and clothing.

Shortly thereafter the government decided to pursue its

policy of assimilation more vigorously, a move that greatly

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TRIBAL-FEDERAL AND TRIBAL-STATE RELATIONS

increased both federal expenditures and the role of the BIA in tribal affairs. The BIA began an education program in 1870, and in 1879 it opened its first off-reservation boarding school. After the Major Crimes Act was passed in 1885, the BIA’s presence was increased by the establishment of courts of Indian offenses. By 1900 property management had be­come a large part of BIA operations, as a result of the Allot­ment Act. In 1909 the government began providing regular medical services to Indians. Although in the 1930s Congress reversed its policy of blatant assimilation with the Indian Re­organization Act and moved to strengthen tribal govern­ments and economies, the new policy continued to increase BIA services as Congress appropriated money to tribes for economic development and technical assistance.

The bureau’s expansion continued unabated until the early 1950s, when Congress, during the termination era, passed a series of laws designed to reduce the federal government’s responsibility to tribes. A number of tribes were terminated and some federal services, such as education and health, were transferred from the bureau to other departments in what was then called the Department of Health, Education, and Welfare.

As discussed in chapter 5, the termination policies proved disastrous. By the 1960s, the mood of the country had changed and had embraced President Lyndon Johnson’s Great Society, a series of programs designed to eradicate pov­erty and assist the disadvantaged.

In the 1960s tribes became eligible for a variety of pro­grams not as beneficiaries of the government’s trust respon­sibility but because they were government entities. Like states, counties, and cities, tribes could apply for grants de­signed to upgrade government services, encourage economic development, and improve health and education. The “Great Society” provided Indians with housing grants through the Department of Housing and Urban Development, economic development grants through the Department of Commerce, and training grants through the Department of Labor. By the early 1970s, tribes were receiving funds and services from a variety of agencies within the federal government.

Federal cutbacks have caused many “Great Society” pro­grams to disappear, but the federal government’s obligation to provide basic services to tribes continues. Exactly which services are required by law varies by tribe depending upon treaty provisions. The 1794 treaty with the Six Nations (Iro­quois League) requires, for example, the federal government to pay each of the six tribes $4,500 per year and supply them with certain quantities of cloth. In its 1857 treaty with the Pawnees the federal government agreed to pay that tribe an annual sum of $30,000.

Educational and health-care services are explicitly re­quired by some treaties. More generally, however, they are an obligation implied in the trust relationship. In addition,

The American Indian has pur­chased a prepaid program by the largest real-estate transaction in the history of the U.S. If the U.S. cannot afford the provisions of

health and other benefits, then we would be happy to have our lands returned.
Everett Rhodes, M.D.,

Chairman, American Indian Policy Review Commission,

testimony on Indian

Health Care Improvement Act
The Congress hereby declares that it is the policy of this Nation, in fulfillment of its special re­sponsibilities and legal obliga­tions to the American Indian people, to meet the national goal of providing the highest possible health status to Indians and to provide existing Indian health services with all resources neces­sary to effect that policy.
1976 Indian Health Care Improvement Act

THE TRIBAL-FEDERAL RELATIONSHIP

265

~. the 1975 Indian Self-Determination and Education Assis­tance Act and the 1976 Indian Health Care Improvement Act contain provisions about the government’s obligation to pro­vide these services. Section 3 of the Indian Health Care Im­provement Act specifies that “it is the policy of this nation, in fulfillment of its special responsibilities and legal obliga­tions to the American Indian people, to meet the national goal of providing the highest possible health status to Indi­ans and to provide existing Indian health services with all resources necessary to effect that policy.”

The non-Indian population generally does not understand that, while Indians are eligible for many special services (in­cluding medical and dental care, educational and employ­ment assistance, emergency food, housing, and even funeral expenses), these services are not charity or welfare. Tribes

bargained long, hard, and often unwillingly, for these bene­fits, and they ceded vast tracts of land in exchange for such services.



The United States is legally bound by the provisions of more than 370 treaties and agreements with Indian nations to provide various services. These treaties are the supreme law of the land. Treaty rights are, by law, property rights, and as such they are protected by the Fifth Amendment. Un­fortunately, practice does not function as smoothly as theory when it comes to actually providing the services due. The

[The trust relationship I in­cludes an obligation to provide these services, required to protect and enhance Indian lands, re­sources, and self-government, but also includes those economic and social programs which are necessary to raise the standard of living and social well-being of the Indian people to a level com­parable to [that ofl the non­Indian population.
Final Report: American

Indian Policy Review

Commission, 1977

All enrolled Indians of at least one-quarter Indian blood are eligible for health services. Shown here is the Indian Health Service Clinic in Phoenix, Arizona. (Courtesy Donald L. Fixico.)



266 TRIBAL-FEDERAL AND TRIBAL-STATE RELATIONS

BIA’s budget, adjusted for inflation, decreased by more than 5 percent between 1981 and 1985. In the mid-1980s the BIA’s budget accounted for less than .0115 percent of the total federal budget. Tribes sometimes are forced to pay the federal government for services rendered but not legally required by the trust relationship, even when the tribes did not request the services. For example, tribes who success­fully sue the federal government for the illegal taking of their lands generally find their awards reduced by “offsets,” or de­ductions for “services rendered.”


Protecting Tribal Autonomy
As discussed in chapter 4, the Supreme Court early defined the relationship of tribes to the United States as that of a protectorate under international law, that is, the acceptance by a weaker sovereign of the protection of a stronger so­vereign. This relationship, as Chief Justice Marshall em­phasized, does not involve the destruction of the weaker sovereign.

As non-Indian settlement and society encroached upon and threatened tribal existence, many tribes agreed to cede their lands in the hope that by isolating themselves from threats to their culture, they could preserve their existence. They negotiated with the United States as equals, and they negotiated with one objective. They ceded land in return for a promise of protection of their remaining or new lands and their tribal existence. Toward that end, tribes carefully bar­gained over exactly which jurisdictional areas would be as­sumed by the federal government.

During the assimilation eras, the federal government re­neged on its promise to protect tribal existence. The legis­lation of those eras—the Major Crimes Act, the Dawes Allot­ment Act, House Concurrent Resolution 108, and the Indian Civil Rights Act, to name a few—violated Congress’s prom­ise to respect tribal sovereignty and cultural integrity. The present era of self-determination is a return to the federal government’s original promise. Two acts, the Indian Self-Determination and Education Assistance Act and the Indian Child Welfare Act, were specifically designed to protect and enhance tribal existence.

The Indian Self-Determination and Education Assistance Act of 1975 gave all tribes the right to manage the programs and services formerly provided by the BIA. This includes such services as housing, education, community develop­ment, and law enforcement. Many Indian people feared at first, and some still fear, that this act might be a form of “termination in disguise”—as soon as tribes proved they were capable of managing their own programs and services, Congress would terminate the trust relationship. To dispel this fear, the legislation states that “nothing in this act shall be construed as. . . authorizing or requiring the termination of any existing trust responsibility with respect to Indian

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people.” The 1978 Indian Child Welfare Act also contains a phrase guaranteeing the preservation of tribal identity: “Con­gress, through statutes, treaties, and the general courts of dealing with Indian tribes, has assumed the responsibility for the protection of the preservation of Indian tribes and their resources.”
THE BRANCHES OF FEDERAL GOVERNMENT AND

THE IMPLEMENTATION OF INDIAN POLICY


Although Indian nations’ government-government relation­ship is maintained with Congress, the executive and judicial branches of the federal government frequently have a greater impact on Indian affairs. The following section examines the major role played by the three branches of government in establishing and implementing Indian policy. Particular at­tention is given to the history, function, and current status of the Bureau of Indian Affairs.
Congress

The U.S. Constitution empowers Congress to pass laws in a number of areas, including taxation, naturalization, banking, and patents. It also allows Congress to borrow money, pro­pose constitutional changes, and conduct investigations. Ar­ticle I of the Constitution authorizes Congress to regulate commerce among states, foreign nations, and Indian tribes. Article- II empowers the Senate to accept or reject treaties, including Indian treaties.

The Senate Select Committee on Indian Affairs and the House Interior Committee are responsible for most of the eighty to ninety bills passed each year that affect Indian tribes directly or indirectly. Tribal officials frequently appear before these committees to express their views on proposed legislation.

Wounded Knee confrontation, 1973. (Courtesy Akwesasne Notes.)

268 TRIBAL-FEDERAL AND TRIBAL-STrAm RELATIONS

In recent decades the executive branch of the government has challenged Congress’s role as chief policymaker. Today the president and the president’s advisers formulate the ad­ministration’s policies and lobby Congress to pass the appro­priate legislation. Congress, however, still retains immense power because of its control over the nation’s budget. An ex­ecutive decision to improve Indian health care, for example, is meaningless unless Congress appropriates enough money to build more clinics, train more medical personnel, and in­crease services.


The Judiciary
The federal-tribal relationship is governed by federal law. Hence the federal courts, instead of state courts, decide most cases involving Indians. Federal judges, through their power of judicial review, hold considerable power within the federal system. By ruling on the constitutionality of laws, they often act as policymakers. The Supreme Court’s ruling in the Oh­phant decision, for instance, considerably reduced Indian sovereignty by denying tribes jurisdiction over crimes com­mitted by non-Indians on reservations.

In recent years tribal governments have turned increas­ingly to the federal court system to protect their rights. The federal courts have often found that federal and state govern­ments have been violating tribal rights, sometimes for hun­dreds of years. In the 1970s, for example, several tribes in the eastern United States filed suit to regain lands illegally taken from them by the states. The tribes involved included the Oneidas of New York, the Narragansetts of Rhode Island, the Mashpees of Massachusetts, and the Passamaquoddies and Penobscots of Maine. Many eastern states had negotiated illegal treaties with these tribes after the passage of the 1790 Trade and Intercourse Act, which specifically forbade any state or private individual to purchase land from Indian nations. In 1975 the courts ruled that the federal government was obligated to assist tribes, whether recognized or unre­cognized, in their claims under the 1790 act. The decision resulted in an out-of-court settlement in which the Maine tribes were given lands and development money in return for their illegally taken lands.

The courts cannot initiate cases or protect tribal rights un­til a case is brought before them. Courts do not actively search for wrongs that need to be righted. Therefore, it is important for tribal governments to have legal services avail­able to them. The government is obligated by its trust re­sponsibility to represent tribes in court and protect their in­terests. Despite this responsibility, legal aid is not always forthcoming or of adequate quality. Tribes have to convince either the attorney general’s office, of the Justice Department, or the solicitor’s office, of the Department of the Interior, to file a suit on their behalf. These offices have wide discretion in deciding which cases to pursue. If the Justice Department

THE TRIBAL-FEDERAL RELATIONSHIP

269

or the Interior Department refuses to initiate a case, a tribe may hire its own lawyers, but doing so is an expensive, and often unaffordable, luxury, especially for small tribes.

In addition, tribes frequently require protection from the federal government itself. At times the attorney general’s or the solicitor’s office must provide legal services to both sides in a conflict involving Indian tribes. In a case requesting pro­tection of Indian fishing rights, for example, the solicitor’s office may argue the case on behalf of the Bureau of Com­mercial Fisheries, which represents commercial fishermen, as well as on behalf of the Interior Department, which rep­resents Indian tribes. This creates a conflict of interest, an unethical situation in all other instances of American law.
The Executive Branch

The executive branch of the government has a major impact on tribal affairs. Headed by the president, this branch is re­sponsible for initiating, enforcing, and implementing the na­tion’s laws and programs. Presidents may initiate policies beneficial to tribes, as President Richard Nixon did in his 1970 address outlining the policy of self-determination, or they may support harmful Indian legislation, as President Grover Cleveland did when he signed the Dawes Allotment Act. Twelve departments, including the BIA, in the Interior Department, and a variety of independent agencies aid the

President Gerald R. Ford (standing at right) meeting with tribal representatives at the White House. (Cour­tesy Gerald R. Ford Presidential Library, Ann Arbor, Michigan.)

270 TRIBAL-FEDERAL AND TRIBAL-STATE RELATIONS

president. These executive departments administer a variety of services and programs important to tribal governments. In the l980s more than half of all federal funds going to Indians came from non-BIA departments.

The Department of Labor offers employment and training grants. These have been especially beneficial to Indian people and tribal governments, because they have given Indians a chance for training and jobs on their reservations, where un­employment ranges from 40 percent to 90 percent. In 1981, Comprehensive Employment Training Act (CETA) funds, which have since been greatly reduced, provided ten thou­sand jobs on reservations. These grants allowed tribal gov­ernments to offer training programs for young workers and the elderly and also funded alcohol rehabilitation programs.

The Department of Housing and Urban Development (HUD) provides assistance for housing and development of rural and urban communities. HUD has cooperated with the BIA and the IHS to set up programs for improving the de­plorable living conditions on many reservations. In 1982, HUD was financing over 90 percent of all Indian housing. More than 140 tribes have established tribal housing authori­ties to oversee the construction and rehabilitation of low-cost housing units.

The Department of Health and Human Services (HHS)

oversees the general health and welfare of all American citi­zens. Its programs include income assistance and health insurance, such as Medicare and Medicaid. Other HHS agen­cies offer special services aimed at child care and develop­ment, the aging, and the handicapped. Indians, like all U.S. citizens, are eligible to apply for these grants and services. Of direct importance to Indians is the Indian Health Ser­vice (IHS), a subagency of the HHS’s Public Health Service. The IHS provides medical services, hospital care, preventive health care, medical training, and funds for improving water supply and wastewater treatment systems to federally recog­nized tribes and individual members of federally recognized tribes living on or near a reservation.

As already mentioned, the attorney general’s office, of the Justice Department, and the solicitor’s office, of the Interior Department, represent Indian interests in court. The Justice Department’s Land and Natural Resources Division handles most Indian resource cases. The Federal Bureau of Investi­gation (FBI), also located within the Justice Department, as­sists tribal governments in investigating crimes occurring on Indian land. Other divisions of the Justice Department are responsible for prosecuting crimes in Indian country, pur­suing discrimination suits on behalf of Indian individuals against non-Indians, and overseeing the compliance of tribal governments with the Indian Civil Rights Act.

The Department of Transportation is responsible for high­way development, mass transit, oil and gas pipeline construc­



THE TRIBAL-FEDERAL RELATIONSHIP 271

‘‘ tion, railroad and aviation regulations, and transportation safety. In 1975 a government report estimated that only one-quarter of all reservation roads were paved, hindering both traffic safety and economic development. In some instances the Department of Transportation, like the Department of Education, has designated tribes the “fifty-first state” and transfers their share of a program’s budget to the BIA.

The Department of Education is charged with assisting citizens in establishing and maintaining efficient school sys­tems. The Indian Education Office, located in the Depart­ment of Education, administers grants to local educational agencies for elementary and secondary school programs de­signed to meet the special educational needs of Indian chil­dren and adults.

The Energy and Commerce departments are directly in­volved in programs to help reservations achieve greater economic development. Both provide loans and other assis­tance to tribal governments so that they can explore for min­eral deposits and develop industrial parks, tribal businesses, and recreational and tourist facilities. Department of Energy grants have funded a special interest organization, the Coun­cil of Energy Resource Tribes (CERT), which helps tribes gain greater benefits from the development of their resources.

The Department of Agriculture also funds some economic development projects and distributes commodity foods and administers supplemental food programs. Tribal govern­ments may apply to the Farmers’ Home Administration (FHA), a subagency of the department, for loans to develop

‘~.- farming and grazing enterprises, rural businesses and indus­tries, and water and waste disposal systems. In addition, some tribes, the Stockbridge Munsee of Wisconsin, for ex­ample, have used a special FFIA loan program to buy back lands lost through the allotment process.

The Department of the Interior is the department of the executive branch most directly concerned with tribes. Re­sponsible primarily for the conservation and use of the na­tion’s resources, the Interior Department administers more than 600 million acres of federal lands (including 53 million acres of continental U.S. Indian trust land and 40 million acres of Alaskan Native lands). The Interior Department also manages fish and wildlife, water, land reclamation, irriga­tion, development of mineral and energy resources, and the national parks.

The Bureau of Indian Affairs, within the Interior Depart­ment, is the agency directly responsible for administering Congress’s relationship with federally recognized tribes. It is discussed in greater detail below.
The Bureau of Indian Affairs

The Bureau of Indian Affairs (BIA), also referred to, until

1947, as the Office of Indian Affairs and the Indian Office, is



272 TRIBAL-FEDERAL AND TRIBAL-STATE RELATIONS

one of the oldest agencies within the U.S. government. It began in 1824 as a diplomatic corps to handle negotiations between the United States and the Indian nations. Within a century it controlled virtually every aspect of Indian exis­tence. Today the BIA’s role has come almost full circle, evolving into an advisory agency as the tribes progress to­ward self-determination.


Diplomacy to Paternalism
One of the first acts of the Continental Congress was the creation, in 1775, of three departments of Indian affairs:

northern, central, and southern. Among the first depart­mental commissioners were Benjamin Franklin and Patrick Henry. Their job was to negotiate treaties with tribes and obtain tribal neutrality in the coming Revolutionary War. Fourteen years later, the U.S. Congress established a War Department and made Indian relations a part of its respon­sibilities. As the need for Indian lands and frontier hostilities became more pressing, Secretary of War John Calhoun cre­ated the Bureau of Indian Affairs, in 1824. Eight years later Congress officially authorized the president to appoint, with the consent of the Senate, a commissioner of Indian affairs to run the BIA. The commissioner supervised BIA agents, who were essentially ambassadors with broad powers of negotia­tion. Their primary job was to maintain peace on the fron­tier, and they were authorized to sign trade agreements and land cessions. Unlike later BIA agents, they took no part in delivering services or regulating Indian lives.

In 1849, Congress transferred the BIA from the War De­partment to the newly created Department of the Interior. With this transfer came a change in policy and responsibili­ties. The removal of tribes to reservations had brought about disease and starvation, which forced the government to be­gin providing tribes with food and other supplies. Adminis­tering the distribution of this aid became a responsibility of the BIA. By the 1860s, however, the agency was not discharg­ing its duties responsibly. Unscrupulous Indian agents in­creased misery on reservations and generated hostility. In 1867, Congress appointed a Peace Commission to study the problems of the BIA’s administration of reservations. The commission recommended many changes, including the ap­pointment of honest, more effective agents and the establish­ment of a separate, independent agency for Indian affairs. Some improvements were forthcoming, but the recommen­dation to remove the BIA from the Interior Department and establish it as an independent agency was never followed.

During the assimilation era, in the 1880s, the BIAs pres­ence on reservations increased dramatically. Indian agents became responsible for operating schools, dispensing justice, distributing supplies, administering allotments, and leasing contracts. By 1900 the Indian agent had, in effect, become the tribal government.



THE TRIBAL-FEDERAL RELATIONSHIP 273

The Snyder Act
A major change occurred in 1921 with the passage of the Snyder Act. Before this act was passed, the BIA’s duties were spelled out, often in confusing and contradictory terms, in scores of treaties and acts of Congress. Administration of In­dian programs was further complicated because each reser­vation agency received its own appropriation, or allotment of money, from the federal government. The absence of a uniform policy led to chaotic administration and manage­ment in the BIA.

The Snyder Act of 1921 placed all federal Indian services under one act. It authorized the Department of the Interior to use funds for “the benefit, care and assistance of Indians throughout the United States.” Expenditures were autho­rized for health, education, social services, law enforcement, irrigation, and for the administration of the BIA. No limit was placed on the amount of money Congress could appro­priate, nor was the BIA required to ask for yearly spend­ing authorizations from Congress—an important protection for tribes, since it meant that Congress could not simply withhold money from the BIA and thereby discontinue its operation.


Paternalism to Self-Determination
The next major change in BIA services came in response to the Meriam Report of 1928, which detailed the government’s shortcomings in providing services to reservations (see chap­ter 5). Congress responded to the report by passing the In­dian Reorganization Act (IRA), which aimed to improve tribal economies and strengthen tribal governments. BIA ser­vices were expanded to include forestry, range management, an agricultural extension service, construction, and land ac­quisition. BIA services continued to expand until the 1950s and 1960s, the termination era, at which time Congress dis­mantled some of the agency’s duties. The responsibility for educating Indian children was passed to the states and In­dian health care became the responsibility of the Department of Health, Education, and Welfare (now called the Depart­ment of Health and Human Services).

In the 1970s the new policy of self-determination reversed the policies of termination. Along with the new policy came greater appreciation of Indian culture and tribal gov­ernments. Congress passed a series of laws, including the Indian Self-Determination Act, the Indian Child Welfare Act, and the Health Care Improvement Act, which aimed to improve the quality of reservation life without destroying tribal government. Today the BIA is striving to change its structure and character from a management to an advisory agency. Its goals, as stated in its manual, reflect this objec­tive: (1) To encourage Indians and train Indians and Alaska Native people to manage their own affairs under a trust re­

Raising the U.S. flag on Iwo Jima. Ira Hayes, a Pima Indian, was one of the U.S. marines who planted this flag when American forces took the island of Iwo Jima from the Japanese in World War II. Indians have served with American forces in every war with U.S. involvement since the Revolutionary War. More than 29,000 Indian men, one out of every three able-bodied men, a higher proportion than any other population group, served in World War II. The Iroquois Nation, the Muscogee Nation, the Keetoowah Cherokees, and the Lakotas formally declared war on Germany and the other Axis powers. Tribal governments bought millions of dollars’ worth of war bonds, and the Crows of Montana offered their reservation’s resources for the war’s duration. In 1982, President Ronald Reagan proclaimed August 14 “National Code Talkers Day” to honor members of the Navajo Tribe who used their language during World War II to transmit intelligence reports. Members of the Choctaw, Chippewa, Muscogee, Lakota, and other tribes also used their languages during both world wars to the confoundment of enemies, who found the “code” unbreakable (Photo cour­tesy Wide World Photos.)

THE TRIBAL-FEDERAL RELATIONSHIP 275

S-.——- lationship with the federal government; (2) To facilitate, with
maximum involvement of Indian and Alaska Native people, full development of their human and natural resource poten­tials; (3) To mobilize all public and private aids to the ad­vancement of Indian and Alaska Native people for use by them; and (4) To use the skill and capabilities of Indian and Alaska Native people in the direction and management of programs for their benefit.

In line with its fourth objective the BIA gives Indian appli­cants first consideration when hiring employees. Before the 1930s, few bureau employees were Indians. As part of the

1934 Indian Reorganization Act, Congress required that In­dians be given preference in hiring. This requirement was challenged in the 1970s as unconstitutional and racially dis­criminatory. The Supreme Court ruled, however, that pref­erential hiring of Indians by the BIA did not violate the law but was proper given the government’s special political rela­tionship to tribes. Today more than 75 percent of the bu­reau’s fourteen thousand employees are Indians.



The tribes’ relationship with the bureau is often described as a “love/hate relationship.” On the one hand, the bureau is the symbol of the tribes’ special relationship with the federal government. On the other hand, tribes have suffered from bureau mismanagement, paternalism, and neglect. It is the hope and objective of many tribal peoples and government officials that tribes can enter into a more equal relationship with the bureau and that the bureau can truly function in an advisory capacity as opposed to dictating policy to tribes.
The federal government’s relationship with tribes has wa­vered over the years between respect for tribal sovereignty and rights and attempts to extinquish tribal existence. The current relationship between tribes and the federal gov­ernment is one of respect for tribal rights. It is an era of self-determination in which the federal government has com­mitted itself to protecting and enhancing inherent tribal re­sources, rights, and the ability of tribes to manage their own governments.


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