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TITLE

IXSTITUTI3N'REPORT NOPUB DATEVOTE -

DO C MINT IMMOr

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,1 Erie rietoiy of the fiedetal*Responsibility tp theAmerican Indian.3ffice of Education (DREW) Washington p.c.0E-79-0240479 -

.381)4: Based on the Report Lagislative Analysis 7fThe Fedetal Role In Indian rducationnbby.

.

Deloria, Jr.AVAILAALE !IRON aSupariatendent of Dociimenfs; U.S. Governient Pri;ittig

Dffice, Washington* D_C 201402 (Siisck,NO.0.17C080-02033-5).

EDRS PRICEDzsciimps

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IDENTIFIERS

ifiTRACT.

NFO1/PCO2 Plus Postage. .

liAmericin Indian,.Fducation; Ameiiictip IdtanRser*ationS.: *Alerican.In.dians:.111pdei.t.Pnal NeeIs;!,Federal Indiah Relationship.: 41Fediftal..,141flislation;.;Federal Program4; Government .Rol.4:_iltiadS- SelfDetermination:, Social. SerVice a; 'OTreaties: Tribal' fSovereignty: Tribes: .30iTrust Responsibility:.(Government) ' '. .

..*.1 merican Histpr7: Iferiki Report

As tribes and in*dividuals, Indians-claist 411 rights1.11 American society.iGranted full citizenship in 1924, Indifins are.entitia.3.to all proeections and benefitsi. enjoyed by. other citizens,

. in'cluVag'Iree public edscation fcir their children: As the oggio,al

...inhabitants o.f the Unitea States, Inkians .aIso claim rights-elittr.uingto nci other pOpulation gr6ups based on treaties signod betlfeen

trfbes Lad the Federal Government tritween 1778 and.acts of the 0.5. .Congress to imjalement -the: treatfes .and rovide focthe' gensral welfarepf Indin peopley tha court/ decisions upholiingthe validity of treaties and special .legisla`t.iOn to liana iith.Inlisnmatters. This summary, written for the layman` with speciral emphaSison eluCation, reviews the t'reaty gunrantees made by the l'ederailGovernment and 'the. services actuSlly provided ,under. the gOarantees.It summarizes congressional intgnt,, from ti,e. end,. of the treaty periodto the present, in assigning responsibi1iti6i -for Indian affairs to snumber of Federal. agencies, Finally, it examines the consistency .withwhich the co\irts have upheld the concept of deal Federalresponsibility to Ini,ian citizens,as expressel in treaties ansglgeneral .law. As the nat-ion- seeks to-redrêss pas't failures and t.,o

-; -develop a Pederal policy responsive to tndian needs'in the year's-ahead, it should be recognized that the legal and..judicial historytends to support the Indian Claim of dual right§boPh by treaty and,special Congnessiónil acts and .by inherent ri.ghts of citizenship.(Author/( EC)

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A Brief History Df,

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the -Federal' Responsibilityto the American Indian

Based on the Repg-.10"Legislative Analysis of The Fedetal Role

In IndiAn Edueatton" ,

by '

Vine Deloria, Jr.

of

U.S. Depirtment of Health, Education, and Welfare

4 Office of Education

S.

AP,R 4 i980.

'The activity wi'lich i thesubject of this report was supponed inwhole or in part b'y the Office ofEducation.,Depanment of Health, Education, and We Waft. However, the opinions expressed hetrin do not necessarily reliedthe position.oi policy of the Of lite Of Education, and no official endOrsenient bytise fillTice of Education shouldbe inferral.

U.t. DEPARTMENT' OPHEALTH. EDUCATION, AND WELP

Orrscs or EDUCATNNIwAsstrairon. o.c. Ions

earrici aualacsaPSNALTY FON OVATE USE, $300

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SPECIAL FOUKTH-CLASSRATE - ROOKPOSTAGE & FEES PAIDU.S. OFFICE OF EDUCATIONPERMIT No.-G.17

U.S. DEPARIMENT OF HEALTH, EDUCATION, AND WELFARE/Office of EducationOE Publication No. 79-02404

DISCRIMINATION PROHIBITED.No person in thc United States shall, on the grou nd of race, mlor, ornational origin, be excluded from participation in, be denied the benefits of, or be ubjtecLto discriminationunder any pmgram or activity receiving Federal financial assistance, or be so`treated on The basis of sex under mosteducation programs or activitks receiving Federal assistance.

'U.S. ;(.11V ERNM ENT PRINTING OFFICEWASHINGTON: 1979

Kinsale by the Superintendent of Docu merits, U.S. Govern m nt Printing Office14ashington, 111.C. 20402.

' Stpck N 0174)80-02033-5

Conte.hts

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.) Page

. INTRODI:JOTION 1

I3ISTORICAL OVEIMEWIndian Nations Cede Land, Lose Means of Livelihood 5

INDIAN NEEDS 4

Reperts Cite Continuing Deprivations

TREATY'ITRIODPromise an4sPerforimanie

CONGRESSIONAL INTENT.Special Laws For Indian Welfare

JUDICIAL HISTORYCourti Uphold Congressional Intent*

FEDERAL SERVICES TO IN\MANS

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Many. Agencies Share Responsibility 29

CONCLUSION, r 32

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herish fradittonal C ulture and skills. Ina ask pr prfunised rigthts in Amer it an sotietv.

Introduction4

A's tribes and individuals, Indians claimduaLrightsin American society. Grafttedfull citizenship in 1924, Indians are en-titled to all prctections and benefits en-joyed by other citizens, includinifree.public education for their children.

As the original inhabitants of the UnitedStates, Indians also claim rights accruingto no other population group. These rightsare based on treaties signed betwmn in-idividual tribes and the.Fetleral Govern;ment befween 1778 and, 1871, acts a theU.S. Congress to implement.the treatiesand provide for the general welfare of In-clian people, and court docisions uphold-ing the validity of treaties and speciallegislation to deal with Indian matters.However, tWe documentation sq,bstantiat-ing the dual rights claimf had not pre-viously been coriipiled. The,Office of, In-dian Education in the U.S. Office ofEducation therefore asked Vine Deldria,Jr., eminent Indiarr4uthor and attorney, toexamine tile his4orical record and compilethe documentation guhstantiating the dualrights claim.

Mr. Deloria specializes in the historicalrelationship between the riicliim peopleand the U.S. Government: A Sioux born*on the Pine Ridge Reseivattion in SouthDakota, heis the author dutch bestsellers a.4 Caster Diedfre Your Sins, WeTalk, You Listen, Of Utmost Good Faith andBehind the Trail of BrOken Promises. As anattorney, he had a major role in foundingthe Institute for the Development of In-dian Law, in Washington,.D.C.

Mr. Deloria con ted an exterisivesearch of the on's archives to obtain ,,materials pertinent to the early treaties,acts of the Congress, and court decisionsr"His task was complicated by the facts thatmany oral pgreements had gorie altogetherunnoted and many written records hadbeen scattered in depositories throughoutthe country or simply lost. i

.. eMr. Deloria's documentation and legal in-terpretation of availabje `materials are con-tained in his 138-page manuscript entitledfTegislative Analys this of Federal Rolein Indian Education," whIof necessityis legalistic in language and citation.

Indian:thigs by ,treaty anti,

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grunt whanged itoul for Federal promises to educate their c

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ThiS publication is a brief stimmary ofMr. 'Deloria's findings and conclusions,written for the busy layman; With speCialemphasis on education, the publicationreviews the treaty giaareittees made by theFederal Governrnent,and the services ac-thally provider:1 under the guarantees. Itsummarizes congressional intent, from the

end of the treaty period (1871) to the pre.sent, iii assigning responsibilities for In- ,dianuffIrs to a number of Federal awn=cies. Ftnally, it examines the consistency 1with which the courts have upheld thecdticept of dual Federal responsibility toI ndia,n eitixensas expressed in treatiesand Oneral law. .

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.Facini the se ling sun, students learn tribal dance as part of theirsciavl's cultural ren4walpragitatn.

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Protesting Jon ed .settlement on resertkitions. Bull led Sioux to z'i tory ovrr General e:uster.

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Historical OverviewIndian Nationg Cede Land, Lpse Means.ofLiveljhood

: . I think1 . . that when the historyof the last one hundrod years shall bewritten it will be a pleasant thing forour children to find here and there agreen spot in reterence to our treat-inentpf the Indiansan expressionof national sympathy and nationalhonor toward these disap.tribes.

Steele Holman,Member of Congress, in theCongressional Record, july. 17,

1882

Most Indian tribes were Sovereign nationswith prior claim to vast land resourceswhen the U;ited States opened trmtynegotiations during the RevolutionaryWar. E4ly treaties (1778-1815) promisedpeace, friendship, and.trade as behrVeen in-dependent nations. In exchange for some

land, but primarily for trade con-cessions, the Unitecl States agsumed a pro-tective role. Tribes retained civil rd eri-..

`minal jurisdiction over their$land and t1K

right to self-gmernment.

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For example,.treaties with t e Delawaresand Cherokees permitted th e iribes tosend delegatt4 to the Congress if they sodesired. Recognizing tribal sovereignty,territorial-governors and military cont-.

.mariders of frontier posts regularly issuedpassports for U.S. citizens traveling in In",dian lands. -

The 1NT rthwest Ordinance of 1787, patTte on a plait preposedby ThomasJefferson, provided.territorial status for thelands nort of the Ohio River and thelegal mecha In whereby territories couldeventually app y for statehood. Millions ofacres of Indian lands were'involved. Arti-cre lei of the Ordinance imffirmed the t $

early pledges of the U.S. Government:

The utmost good faith shall always beobserved towards the Indians; theirland and property shall never betaken frorn.them without their con-sent; and thAir fooyerty, rights, andliberty never shall be invaded or dis-turbed unliess j9.just and lawful wirs .

authorized by Congress . .

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Despite these guarantees, Federal pplicychanged after the War 6f.1812a war inwhich many trib'is.exercised their right as.irukpendent nations to figtit on the BritishOde. With the successful conclusion of thesecond American struggle against the British in a generation, the future of theyoung Republic at last seemed assured.White farmers in search of fertile landbegan the westward movement across theAppalachian Mountains into the vasthunting ranges and farmlanids of various.Indian tribes. Thoukh 'most Indians wa:emigratorrhu'nters, some cultivated'appsand lived in permanent vilrages.

To supply lands needed by white settlers .in these western territories, the UnitedStates embarked on a policy of.Indianland ac.guisition that lasted a half century.Under nearly 400 treaties with individualtribes, the United States acquired almost abillion acres of Indian land. in 1871 theFederal Government unilaterally declaredthe treaty period closed.

When they ceded far-ranging huntinggrounds, Igdian nations lost both theirautonomy and means of livelih9od. TocoMpeosate, ihe Federal Government pro-mised agriculturakools, breeding animals,seeds, and training that Indians wouldneedto sustain life on farm plots averaging160 acres per farpily. Muth of this land

was on ark!, unprodtictive reservations inthe Southwest. the Governinesit also-pro-, ,

mised health selvices and schools.

By 1882, as sh?wn in Con manman's appeal to the nation's nscien,ce,the failure of the FederàlG. nment tofulfill its trfaty obligations had 141 to thevirtual disapixdranFe of a numbei of &iceproud Indian nations. Federal efforts toimprove I ndian rttealth, agricultural stills,and educationall guaranteed by treatywere at best marginal. The reasons werecomplex. Communication and transporta- .tion between Washington and outlying

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Alaska's 91e with a karsh'prwironment...4

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Where caribou ribs provide an infrequent treat.

tertitories were slow and unreliable. In theEast, theapublic was generally apathetira'toward the problems of Iridians manymiles away: On the plains, white settlersasked only for military protection againsttribes that opposed their encroachment.The Civil War had intervened, forcing the

to.

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,Govezninent T.tcyncentiate its resources

,on holdi.ng the; Union together.

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For many reasons, Indian Stirvival had bythe 188O's become the-issue'con frontingthe Congress. Wholg_tribt-s. were ravagedby smallpox 'add other "white men's" dis-eAses. Insuakient.agricultural toodi5 antItrainingalong with some Indian resis-tanCe to farmingmeant.that few familiescould produce enough food to meet theirbasic needs. Hunger was widespread,famine a persistent threat.

Indiani:hildren were being taken fromtheir families and shipped off to boardingschools, sometimes hundreds of milesfrom bale. Supporters of the boardingschool approach said that bringingchildren together in this way from manysmall and widely scattered villages was theonly feasible way t6 maks; publ*luca-tion generally available. Critics said theapproach was intended to hasten theassimilation of Indian youth ;motilegeneral population by removing them for.long periocls from family and tribal in-fluences. Assimilation W ati regarded as thesolution to Oft "Indian problem- fOrgenerations, mostly because it would end

.the need fin- Federal support of the I tulianpopulation. It was also thought thatassimilation would end Indian tiprisit4,7sagainst white settlements.

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96 9 Senate report found average Indian mni °me j1,500 a yrar, wtth liii i-xpet tam y 01 44 years,

.), Indian Needs

Reports Cite Continuing Nprikationt

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In this century Fedekal policy has vacil-lated between mandatory assimilation andreccignition of the Indians' right to self-

.. determination, which fot most Indians hasmeant the cultural and social identity oftatibal life op reserVations. Many observers .believe, however, that the nation's recordin helping Indians to achieve social and

`economic parity with other Americans hasBeen little better in thisventury than in thelast.

.In 1928 a massive study issued by theBrookings InstitutiOn (then the Institutefor Government Research) brought the.ln-dian plight to national attentioh. EntitledThe Problem of Indian Administration, this,landmark document was prei)ared underthe direction of Lewis Meriam of the.University ofChicago for thc.Secretary of.the Interior, who has jurisdiction over theBureau of Indian Affairs.

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Indians were being excluded from the4nanagernent of their own affairs.

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. In 1969,.four decades after the MeriamReport, 'the Senate Committee on Lporand Public Welfare issued the findings ofits intensive 2-year investigation of socialand economic conditions among Indians,both on reservations anct in urban centers.liteCommiqe reported tliat the-two. ma-

jor findings of the Meriam Neport "re-main just as valid today as they were morethan 40 years ago." The Committee citedthese indicators:

The Meriam Report, as it is better known,miched two baSic condys.ions: (1) Indianswere getting poor services, especially inhealth and education, from public officialscharged with meeting these needs, and (2)

.Fifty thousand Indian families live inunsanitary, dilapidateddwellings,many in huts, shanties, eyen aban-dOned automobiles;

Thesaverage Indian income is 51,500,75 percent below the nationalaverage;

The unemployment rate among In-dians is nearly 40 percent, more than10 times the national average;

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Indians stress education opportunities for their children, k now ing many will become tribal ltrders.

The average age of death of theAmerican Indian is 44 years; for allother Americans it is 6.5;

The infant mortality rate is twice thenatit mal average; aml

Thousands of Indians have migratedinto cities only to find themselvesuntrained jobs and unpreimr(dfor urban life. Many of them returnII) the reservation more disillusionedand defeated than when theyJelt

PO( ;1 SerV1( 1111d4 )illyrilv I )11

f() these bleak statistics The ( :ominntee also found IH4444 hfxdinglasts ir

brilmitit iatr S air lv1 r the nannnal4verage in hnth pnbin and Fedri al

schools. Some school districts havedropout rates appmaching 100.per-cent;

Achievement levels of Indianchil(lren are 2'to 3'years below thoseof white students; and the Indianchild falls progressively furtherlwhiml the longer he stays in scht)ol;

Only I percent 01 Indian children nielementary si hot 41 have Indianteacher. or twine ipalv,

lot, rat ol elemental v and set on(Lily st tea( lid ,r hr Mei? Wrli

4411(1 piety, mil II) Ira( h Iii

dian children; and

Indian i hilCren. wore than any >thti!MIMI UN' gionp, helieve themselves kr

.-hehrw aver av,r" in nitylligrrn.r.

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Schools around 1900 had no qualified Indian teachers, a situation fortunately improving today.

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11Y an 1872 treaty.tlathead chiefs gave up their hunting grounds on Montana's Bitterroot River.

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Treaty-Peri6dPromise a.nd Performance-

. . . . We wish our Children edhcated.

* . . . We are anxious . . . that ouring generation should acquire aknowledge of literature alid the arts,and learn to tread in those pathswhich have conducted yuur people,by regular generations, to thtir pre-sent summit of wealth and greatness.

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Choctaws to the Secretary ofWar, 1824

.Treaty, records and related correspondencein the nation's archives relate only to a

tarfraction of the n ly 400 treaties.negoti-ated from'1778 t 1871. Many agreementiwere oral; many records have been lost.aecords that do eiist show conclusively,Mbwever, that Indian nations ceded theirlands to the Federal Government withgreat reluctance did that they did so in theend largely oh the basis of Federal pro-mises to educate their children.

Thrfrlaties provided.Federal annuities to17?e páIto tribes, based on the value ofthen1ceded lands. Most treaties specificallySet aSide lands to besold tig. the support of

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a schoc2lfund._The Choctaw nvalty, for ex-ample, stipulaied the following:

Out of lands ceded by the Choctawnation to the LThited States ... fifty-four sections of one Idle square shallbe laid out in good land, by the Presi-dent of the United States, and sold,for the purpose of raising a fund, tobe applied to thesupport of the Choc-taw schools, on both sides of theMississippi . . . .

4In effect, Indilns wer required to supporttheir own schools from the proceeds ofland sales, though the Federal Govern-ment ass,umed responsibility for providingboth schools and teaching staff.

Few tribal leaders could speak or writeEnglish. They had_ to rely on interpretersand explanations of treaty proposals In-dian Treaty Commissioners appointed bythe President. The communications gupcaused misunderstanding and, 'in somecases, bitterness on both sides.

Plat-ming to relocate the ChippewA, Pot-

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tawatemits, and Ottaivaslifter they cededlands in the Chicago arta, the TreatyCornrnissi6pers told the PottawatomieChiefs in 1845: .

If the Pottawatomie Chiefs are wise-they will mal.cC their people happy.Their lands are only held temporarily

. . We &et buildtheir mills,blacksmith shops, or their schoolhouses or other iinproveinents. If wedid, they would all beblost to themwhen they removed to a'new 9oun-

.trY.

The Pottawatomie Chieft, some of whomwere literate, responded in writing, raisingtwo issues:

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Governthent, the President would "haveyour school fitind expended at you, newhome, and among yoUr own pecipleforever thereafter.ii

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While the removal of tht Chippewa, Pot-.

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I. We have asked for schools in ourcountry. . . but they have been denied.

. . . I nstead of building schools in,Pixtawatomie country, the Govern,ment had sent Pottawatomie boys toschool in Kentucky.

2. . . We.did not know that theeducation of the boys in Kentuckywas to be paid for out of ourmonies . . . .

The Commissioners finally promised thatif the,three tribes moved withid two yearsto new lands designated by the Feceral

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/n 1877, Chief Joseph led the Nez Perce inviolent protest of a fraudulent land treaty.

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tawatornies., and Ottawas from the milrslatere not f hChicago area was based on the explicitpromise that the United States would pro- gwile tribes qUestioned the ability andvide educational services forever, mosttreaties .prom ised schooling and otherFederal services for only a limited time.The Menominee (1831) and Pawnee(1833) treaties, tor example, provided .

federal schools for 10 years; other treatiesexte.nded the period to 20 yeais. OfficialsinWashington believed that theserelatively short periods would be adequateto prepare Indians to till the land, becomeself-sufficient, and be ready for assimila- .

tion into the general popultition. At thispoint, Federal support would terminate.However, Washington was slow in &pie-mentihg some treaties and deficient in pro-viding services guaranteed by others.

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The history of.the 1855 t aty with the NezPerce provides an exampl of the-kind ofdelay which caused many dians to ques-tion the g9Dd faith of the Federal Govern-ment. In 1863 a new agent to the NeiPerce reported that little ad been done tocarry out the 1855 treaty .

"On taking charge of the Office I tookrains to asceetain what had been 'promisedto," he said, "and what had been done forthe Nez Pete nation . . . . I found . noschool hOuse . no hospital biilt, and ! .

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motivation of teachers sent by the FederalGovernment

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Hole-in-the-Day, the Chippewa chief, -took the problem dirt1y to thNU.S.

iCommissioner of Indian Affiirs.

"The teachers who hlre been sent aniongus have never done us any good," Hole-in-the-Day began, according to survivingrecords of the conversation . . . "Theyseem to care about nothing but their sal-aries .. . ."

. . Don't you feel . . the,want of educa-tion?" the Commissioner asked. "Wouldyou not, for instance, like to know how toread this paper?"

"Father, it is 20 years since we began toreceive annuities," replied Hole-in-the-Day. "Refer back, and you will find thosesiipulations for the employment of.teachers [and others] . . . . We have re-.mained long enough in ignorance, de-pending upon others, and we now want totry something for ourselves . . all knowwe muit have a teacher. We [will] employsuch a one as we think will suit. We willthen have him under our contiol .

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.''We Wilt try ait4bve ted,"the Commissibner w. 'we [ix/II]

set apart the [annuity] fun and let the In-dians emloy their o ,reael:?er

liole-in-the-ljay had he1aát comment"Father," he said, "ifyou want to'have useducated t read, why don't you take some

...of your oWn money, instead of ours, andsacrifice it in upholdihg the present

. system?"

s

As a result of this meeting, the amendedtreaty witFhe Chippewa tribes amtained-'the follow g provision:

The Mississippi hands have ex-pressed a desire to . . . employ theirown farmers, mechanics andteiwhers; and it is tlwrefore agreedthat the amounts ,C-which they arenow entitled, under former treaties,for thepurposes of education, forblacksmiths, and assistants, shops,tools, iron and steel, and for theemployment of farmers and carpen-t r shall be paid over to them astPfir annuities are'paid . . . ."

A proviso was added, however.Washington kept the atthority to resnmeresponsibility for providing these se;vicesif the Chippewas failed to provide them to'the satisfaction of Federal pfficials.

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Lega1questionsraisedbythesear1y_treaties pers,ist. The Phipixwas, Pot- .

tawittVfnies, and Ott4was were promisedVederal schoo.kg for their-iovng peopie.in perpetuity. Some treat:id specifyingeducatioS and other services for periods of10 to 20 years, as in the case of the NezPerçe treaty, wens not immediately iniple-mend upon ratifi'eation by Congress.TlChippewas, according to tittle-in-the-Day, had,loht 20 years because teachersfurnished by the Federal Gpvernruenttaught them nothing. The KittawatomieChiefs had understood theirtreaty to meantheir children would be educated at home,not in far-off kentucky.

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Whether the treaties specified Federal ser-vices for 10 to 20 years or forever, the.pur-pose was to prepAre Indians to enter themainstream of American lite.

Indian leaders today take the position thatthe Meriam Report (1928) anie SenateCommittee on Labor and PubI Welfarereport (1969) gaphically Musette that In- 'vlians have still not entered tlte Americanmainstream. In this respect, Indian'sbelieve, provisions of the early treaties re-

, main unfulfilled, Their rights under theseunmet treaty obligatioi* On the onehand,and their basic rightt as U.S. citizens, onthe other, form the basis for indian claimto dual rights in U.S. society.

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Chief4.211asked meetings with Federal officials to interpret treaties in a ftirrigi language English.

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And be it furthertena,cted, That inorder to promote civatiation among'the friendly In)ian tribes, and tosecure the conlimiance oftheirfriendship, if shall be lawful fp.; the.President of the United States tocause t_.4em to be furnished with 'usefulidomestic anirrials, and Ople-ments of husbandry, and with goodsor money, as he shailjudrproper,. . .

"Civitiz ton Act"of 1802

Even as early Federal policy sought toassimilate Indians into the multiethnic

expressed as to clearly manifest:an in-tention to inchide therli:"

In recent. years, Indian le def.& have cited/this legislative history as roof thai theCongress his consistently recognized itsunique responsibility to the original in-haOtantsand owners of niost U.S. land.Indian leader4 thaithis uniqveFederal responsibilitY still exists.'

The legislative history on*hich Indiansbase this began with the "Civiliza-tion Acts" of 1802 and 1819. These actsprovided modest fundt--$15,000 a year

population migrating to America, the for all Indian social and welfareCongess repeatedly passed special legisla- programsto help Indians make the tran-

, ,

tiOn to deal with Indian peoblems, thus salon from the life of the migratory huMerproclaiming its intention to handle Indian to that of the self-sufficie-nt farmer.affairs apart froul matters involving thepopulation at large. In this respect, theCongress adhered to the Constitution,which expressly exempted Indian com-munitim from Federal taxation and-mostlawS governing Americans. This approachwas upheld by a Federal cOurt decision in Sa1884, which stated that "general acts of theCongress do not apply to Indians:16 nless

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, The 1819 act stipulatedthat these funoswere to provide "against the furtherdecline and final extinctiopof the Indiantribes . . and for introducing amonk themthe habits and arts of civilization." Thesefunds, in effect, were to supplement theFederal cash allotments paid to Indian forceded lands. They were to help defray the

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cost of agricultural training and toolshealth services, e51.-ation, and other"civilizing" services.

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Prio-r to the Civilietion Acts, Federal lawsWere intended to implement specific treaty

- provisions. With the 1819.statufe, tSe.Congress went beyond obligationsassiimed by treaty With individual tribes todeal with the survival needs of all Indians.It made no distinction in this legislation -between tribes that had signed treaties withthe United States and those that had not.

The 1819 law set a pattern for subsequentlegislation. Throughout most of the 19thcentury, as the relative importance oftreaties declined, the Congress unilaterally'accepted more and more responsibility forIndian welfare. Thus, by the close of thetreaty period in 1871, Ipdians had accruedrights to-Federal services under two typesuf legal authorization; (1) treaties with in-dividual tribes, and (2) congressional acts-applicable to all Indians.

Por 40 years after the treaty period, theUnited States continued to sign agree-ments thar were notaficial treaties.butwere often so regarded h'y Indians and; inlater years, by the coups. However, theemphasis of these agreements and relatedacts Of the Congress gradually changedfrom rights granted to tribes to a more

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general concerp with the welfare of in-dividual Indians.

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Did this mean that Indians retained thewentitlemen,t to Federal services even wherethey had decided to live and work off-reservation as ,part of the generatpciety?Legal opinion, even today, vries on thispoint. Many legal scholars believe theserights to §pecial Federal services do apply_to individual Indians wherever they live orwork..

The issue of individual IndiartrightstoFederal services was clouded or clarified,depending upon conflicting legal in- :terpretations, by two acts granting citizen-ship to Indians. In 1919 the Congressvoted citizenship for\Indians who hadserved in the military during World War I -

and had received an honorable discharge.The Indian Citizenship Act of 1924, citedearlier, conferred ciiizenship on the entireIndian population.

One legal view holds that, with cititen-ship,' Indians lost their.special status undrrFederal law and consequently their 4ightsto special Federal services. They werenow, according to this view, entitled to all

welfare, education, and otherFederal services available to the generalpublic, but /we to'a continuation of thespecial programs guaranteed by treaty and

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Wearing modern dress 13 teat hers and aides, many wornrn rrturn to traditional costume estivalt.

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Federal law in the precititenship period. Acontrasting legal opinion cites the eqnstitu-tional exclusion of.lpdians from most actsgoverning citizens, and the-1884 Federalcourt ruling that Indians were not covered

sP, by Feder`at legislation unless expressly in-- eluded. This position holds that the Con-

gress, having 'authorized Indian citizen-ship, 'neVertheless intended to continuehandling Indian affairs apart from.thegeneral Welfare unless it specifically pro-vided for Indians in general legislation.

The latter legal doctrine-7-dual rights forIndianswas subsequently reinforctd,Dealing expressly with Indian affairs, theCongress passed the Wheeler-Howardand Johnson-O'MaIley Acts in 1934. TheWheeler-Howard Ac. t provided a basis forformalizing tribal self-government underthe supervision of the Secretary of the In-terior and clarified the powers of reserva-tion governments. The Johnson-O'MalleyAct authorized the Secretary of the In-terior to contract with States and Territo-ries to provide education, medical atten-tion, agricultural assistance, and socialwelfare services to Indians in their respec-tive jurisdictions.

On the other hand, the dual rightsdoctrine was evident in general legislationas the nation sought to improve the qualityof life after World War II. Indians were

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expressly included in. the Area Develop-ment Act of 1961 and the Economic Op-portunity Act of 1964.

Indian children and achalts have benefite'dfrom numerous Federal educationprograms. The largest of those ad-ministered by the Office of Education isthe multi-billion-dollar compensaitwyeducation program for children from low-income families authorized by Title I ofthe Elementary and Secondary EducationAct of 1965. The Congress expressly in-eluded Indians among the populations tobe served. by ESEA programs. Otherprograms serving Indians as members ofthe general population include Right ToRead, Follow Through, Education for theHandicapped, Emergency School Aid,and Adult Education Special Projects.Moreover, Indian youths may fealify onthe same 11:1sis as any other studenkts forcollege tuition loans and grants,under,Federal programs.

Recognizing the heed for addif alFederal assistance to Indian students, theCongress returned to the special legislationapprbach wah passage of the IndianEducation Act of 1972. Administered bythe Office of Education, the act providesnearly 2,000 grants annually to meet theispecial learning needs of Indian childrenand adults.

Together with public scbools and sch.00lsciiterated by the Aureau of Indian Affairs,Indian tribes and organizations operatingtheir own schools are eligible for grants.The Indian coinmunity must be involvedin planning and operating every prciect,regar,dless of the school agency funded.The Indian, Education Act is the first

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Federal legislation to requirp active par-ticipation by Indians and Alaska Nativesin projects supported under its authority.This is significant because it responds tocriticisms dating back to the MeriamReport that Indians have beensystematically excluded from the manage-ment of their own affairs.

Grazing animals are one of the very ew cash income sources availabre on southwestern reservations.

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VIun lneltans Want theti tribal contnhutions to 4 Pnerican ?node Part trhool urri,

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Judicial HitoryCourt's Uphold Con:gressional Intent.

Not only does the Constitution ex-pressly autiparize congress to regulateComtherce with Indian trilitesz butlong-continued legislative and execu-tive usage and an unbroken currentofjudicial decisions have attributed to

-the United States as a superior andcivilized nation the power and duty ofexercising a fostering care and protec-tion over all dependent Indian com-munities within its borders.

U.S. Supreme Court,,UnitedStates v.. Saildoval,.4 913

The nation's courts have consistently con-sidered the welfare of the nation's entireIndian population in ruling on Federalresponsibility under various treaties andacts of. the Congress.

For example, when the Congress enactedthe 1819 Civilization Act, it was attempt-ing to prevent the extinction of tribes alongthe U.S. frontier:For this reason, the Con-gress made no distinction between tribesthat had treaties with the,United Statesand those that did not. The congressional

intent was to save peOple who were unstic-'cessfuLin adjusting to life as farrnal on -limited land. While both the frontier and,the treaty period haVe been closid for itcentury, the ciaurts continue to honer theintent of early Federal promises. This in-tent often went beyond the letter of spicificttesities and legislation:As cited above, the

preme Conn ruled in lt13 that theUnited States is responsible for th "careand frotection" not only of tribesoriginal frnntier arjeastern tribesU.S. treatieS but of 'loll dependent Indiancpmmunities within its borders . . ."[emphasis added.]

Increasingly in recent years, Indiaris'havesought adjudication in the courts of treatyrights they believe remain unfulfilled bythe Federal GovernTent. Courts,,in turn,have recognized that the tribal leaders of a

'century ago did not'always understand thetreatythey signed. They have permitted inevidence massive docpimentation in fish-

,.

ing rights cases, for example, showingwhat tribes in the Northwest believed theirrights to be and the extent to which the .

Government has kept its cprnrnitment.

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As regards .education, the courts haveruled in some cases that the Governmentfailed to provide schools and teachers,asquickly or as fully as treaty agreements re-quired. En a 1936 case, Sioux Trihe v.United States, the Court of Claims said:-The record establishes that for a longperiod of time the Government did notstrictly observe the provisions,. . . of thetreaty of 1868 . . with respect to furnish-ing the educational facilities provided fortherein."

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While some adults pursue native crafts.

The Gnirt ()1( janns laUnied out thatchildren were the real victims, but it askr(I.

, h III (IV [this lack of e(lii( ation] hereduced to dollars and cents'measuring ot damages. making restontionfor an alleged li)ss isismev,

st hool programs inulthle old tribal tales... lt26

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of the year.

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Sin( thr oral' y prrinel Er,leral agrnctes hape chared the vupfmrt Induzri e,114,attHrl and tve'l

Federal- Services To ind iattsMany Agencies Shard Resp nsibiHty

all stocks, bonds, or othersecurities or evidences-of indebted-ness now held by the Secretary of theInteriorin trust for the benefit of cer-tain Indian tribes shall.. . betransferred to the Treasurer of theUnited States, who shall become thecustodian 'thereof . . .

Act of Congress, 1876

Many people erroneously assume that theU.S. Department of the Interior's Bureau,of Indian Affairs (BIA) is solely,responsi-ble for Federal programs to assist Indiansand that funds channeled through otherFe&rat agencies t6 State and local govern-

ments may not be used to benefit the In-dian population.

Over the years Indians have come to par-ticipate in an array of social serviceprograins administered by the Departmentof Health, Education, and Welfare, the .

Pepartment of Agriculture, the Depart-ment of Labor, and other agencies'.,WhileBIA responsibility has not diminished,that of other agencies has increased.

Interagency involvement in Indian affairsdates from the nation's first year under theConstitution. Ref letting the views and

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needs of an uncomplicated agriculturalsociety that was wary of centralizedgovernment, the Congress in 1789'authorized only three agencies in theFederal executivethe Departments ofWar, State, and the Treasury.

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In, 1789 most Indian nations were locatedwest of the white frontier settlements anthe eastern sloins of the Appalachianrange, Maintaining Reace on the frontierwas up to the Army. The Congresstherefore delegated major reslionsibilityfor Indian matters to the War Department.However, the State Department was desig-nated to keep records related to treatiesand to handle diplomatic relations withtribes in the territories. The TreasuryDepartment was assigned to manage forthe Indian nations the trust funds derivedfrom their land sales to the Government.

BIA was created by Secretary of War JohnC. Calhoun by departmental order in1824, The Congress made it a permanen

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Government unit, still iti the ,War Depart-ment, 11) years later.

When'the Department of the Interior wasestablished in 1849, BIA waetraitsferredto that agency. Later, the Statt riepart-ment's conduct of diplomatic relaticeswith the Indian nations ancl the TreasuryDepartment's administrati6n of Indiantrust funds also were transferred to BIA.The Congress nevertheless soon made itclear that Federal responsibility for Indianaffairs had noibeen permanentlycentralized in the Department of the In-terior. Not satisfied with the Interior's ad-ministration of the trust funds, Congress

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in 1876 returned it to Treasury, where itremains today.

As other executive agencies Were created,some of them also asittmed a share of theFederal responsibility for Indian welfare.The Department of Agriculture worked onrndian reservations to control livestock dis-eases ancI soil erosion. Indians in recenttimes him participated in Aviculture'sfarm loan, surplus commodity, and foodstamp programs. Similarly. Indians have_benefited from the services of the Depart-ment of Commerce and the Department ofHousing and Urban DevelopmentAnd, as mentioned earlier, when Congress

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'Alaskan islands to soxthwestern pueblos, from Maine woods to Florida everglades...

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began to pass major aid-to-educationprograms in the 1960's, it assigned respon-sibility for administration of mostprograms to the Department of Health,EducatiN,And Welfare's Office ofEducation.

Thus, tIle Congress has consistentlycharged a mimber of agincies with the ad-ministration of Federal programsspecifically`for:Indians. Moreaer, the'Congress has specified the inclusion of Ili-

, dians, often by special amendment, insocial service pr6grams administered by avariety of agencies to benefit the general

.public.400N,

Over.250 tribes are eligible for Federal fund: to help eduate their children for tomamow's

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The foregoing historical review shows thatFederal treaty promises were not always,kopt, though there were sometimesmitigating circumstances, including thedisruptions caused by the Civil War.Problems also arose because there weremisunderstandings between tribes andTreaty Commissioners as to what sometreaties actually called for.

From the beginning of the Republic, theCongress sought through special legisla-

a tion to deal responsibly with Indian,needs.The polic:y seeking to assimilate Indiansinto the general population has giwn wayto a recognition of the Indian right to self-deterntination. And while continuingspecial programs for India.ins, the Congresshas expressly broadened recent socialwelfare programs for the general popula-tion to include Indian children and adults.A notable example is.the Elementary.andSecondary Education Act of 1965.

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The U.S. Supreme Court, like lowercou , has maintained that "an unbrokencurt,it of judicial decisions" gives theFederal Government both the power and \.duty to care for the Indian pOpulation. Astribes seek clarification of their rightsunder the early treaties, courts are in-creasingly admitting into evidence exten-sive documentation showing what Indiansbelieve their rights to be. es.

As the nation seeks to redress past failuresand to develop a Federal policy responsiveto Indian needs and aspirations in theyears ahead, it should be recognized thatthe legal and judicial history tends to sup-port the Indian Claim of dual rightsbytreaty and special acts of the Congress on'one hand, by r ghts inherent in citizenshipon the other.

* U.S. GOVERNMENT pRiNTrNG OFFICES 1019,97-295-M