Indian Policy Since 1934

And the Development of Reservation GovernmentsAI_16_13

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Indian Reorganization Act of 1934 in Context

U.S. was suffering through the Great Depression Roosevelt’s "New Deal" was under way

• it was believed that the market had failed on a massive level, even though in hind sight we know that the actual cause of the Great Depression was government monetary policy which dramatically reduced the money supply in the early 1930s and never increased it sufficiently until the beginnings of World War II

• Government was seen as the solution, and government economic programs grew dramatically during this period.

The perceived solutions to the Indian problems also were government solutions rather than market solutions.

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A Grand Experiment Some Indian policy reformers saw their

efforts to develop Indian institutions as a grand experiment wherein they would build governments on reservations that would serve as models for the rest of the country Did not have the power to impose their visions

on states or local governments, but they did have the power to do so on the reservations, so the New Deal Indian policy centered around efforts to create centralized tribal governments using constitutions and charters that were based on model constitutions

Goal of many reformers was the creation of tribal governments that would allow the Indian communities to rapidly move toward self-determination

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Changing Objectives of Indian Policy Indian Reorganization Act suggests a very

different focus from that envisioned by reformers who supported the Dawes Act Dawes Act was allegedly suppose to make

individual Indians self-sufficient by privatizing land, so that the Indians could become acculturated into the predominantly European based culture of the U.S. as a whole (other interests also influenced the Dawes Act in pretty dramatic ways, of course, and the same is true with the 1934 Act

By 1934 a very different vision of how to "help" the Indians had captured the minds of reformers• Focus shifted from the individual to the group

and reformers paid very little attention to the wishes or needs of individual Indians, or groups within tribes

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Reformers’ VisionVision of tribal governance may have been

consistent with some tribal cultures and organizations but not with most tribes Intellectuals of the period saw socialism

or communism as the wave of the future, so they looked for a model government that fit this view• Perhaps the one that came closest was

the Pueblo communities of the Southwest, but only if these communities were not examined very closely

Strong tribal government was completely foreign to most Indians (e.g., plains Indians)

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“Bootlegger-Baptist” Problem Indian policy is not just dominated by those

who think they are doing good for Indians The Indian Reorganization Act benefited other

interests, within the Bureau of Indian Affairs, for instance, who saw that the changes advocated by the reformers would also benefit them. • If the allotment process had continued, the BIA

might well have worked itself out of a job (BIA had grown significantly during the early allotment period, from 1887 through 1910, but the bureau actually shrank in size between 1911 and 1933, falling from 6000 to 5000 employees)

• The 1934 act ended allotment and made the BIA the trustee in perpetuity for all remaining Indian lands

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BIA InterestsBIA also got some new jobs

Had expanded managerial functions because they had to supervise Indian property, guiding its use, and they had an expanded education function, in part because they were suppose to help the Indian tribes become self-determinant through the creation of constitutional tribal governments• Clearly a boon to the BIA (by the end of

1934 it had 12,000 employees, up from 5,000 in 1933)

• Rather than a rapid movement toward such self-determination, reservations ended up with even more bureaucratic oversight and greater reliance on the federal government (mainly the BIA)

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BIA Policy AdvocacyNot surprising, since the primary advocate

for the reforms that were implemented by the 1934 act was John Collier, the Commissioner of Indian Affairs. The BIA led by Collier was probably the

primary backer of the Indian Reorganization Act, with the support of various non-Indian reform groups such as the American Indians Defense Association and the American Civil Liberties Union

The Act was widely opposed by Indians themselves

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Indian Opposition to the 1934 Act Indian opposition was particularly strong on

reservations where the allotment process had transferred land into private hands, because Indians who had benefited from fee simple ownership, either by selling their lands or by accumulating more land and becoming relatively successful farmers or ranchers, were opposed to stronger tribal governments Where allotted lands became fee simple, individual

Indians who got allotments probably were much better off, even though substantial amounts of land that had been part of Indian reservations when the Dawes Act was passed, was transferred to non-Indians as surplus or through the sale of fee simple land

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Distinguish Between Two Transfer Processes

Note that when land was initially allotted the impact on Indians was not uniform• Some were better off because they gained

control of allotment tracts that were larger and/or better than the land they might have had use rights to before allotment

• Other Indians were worse off, as customary use rights had developed on reservations, often to tracts of land much larger than the allotment size

Two processes of land transfer to non Indians (1) Surplus lands were opened to non-Indians, and

while a payment was made to the tribes for these transfers, the Indians who had use rights to these lands did not get the compensation (BIA held such funds in trust for the tribe)

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Second Transfer Mechanism was Voluntary

(2) When allotted lands were transferred from individual Indians to non-Indians, whether as a lease before the allotment became fee simple, or as a sale after the allotment became fee simple, the transfer was generally through a voluntary exchange, so the Indians who leased or sold lands did so because they expected to be better off. • Some may have been disappointed later, but they

did get paid, unlike Indians who lost lands as surplus going to non-Indian settlers

• Both Indians and non-Indians were also free to obtain such leases and purchases, and while Indians were often at a disadvantage in competing for additional land, some accumulated some pretty large tracts

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Indians who Had Allotments Feared Tribal Governments

Indian owners of fee simple lands within the boundaries of reservations feared a strong centralized tribal government because many of the constitutions that were created gave the tribal councils the power to regulate certain aspects of land use on fee simple lands. • Also could dictate certain rules about inheritance• regulatory powers have grown over time.

Indians whose allotted lands that had not yet changed to fee simple feared that their allotments would end up reverting back to BIA or tribal control

reformers pointed to these examples of opposition as evidence for their views, claiming that where allotment had occurred the result had been a breakdown of the communal spirit of tribal life

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Indian Opposition, (Cont.) Opposition was also strong among Indians

whose culture and traditions involved individual autonomy and very weak or non-existent tribal governments Most tribes actually had a very strong tradition of

individualism and voluntary cooperation and virtually no tradition of central government arrangements

Only real experience with centralized coercive power was with the U.S. government• e.g., plains tribes were strongly opposed to

centralization Reorganization Act established the same

communal recipe for all of the tribes, and this may well have been the biggest problem with the Act in the minds of many of the Indians who opposed the Act

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Other OppositionSome opposition to the reorganization act

within the BIA BIA superintendents of the individual

reservations feared that self-government would eliminate their jobs

Proved to be unwarranted, however, as the BIA presence of reservations continued to expand.

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Continued Policy Cycles Indian policy has continued to cycle through

the two views represented by the reformers behind the Dawes Act and the reformers behind the Indian Reorganization Act. After WWII policy refocused on

acculturation of individual Indians, with an explicit agenda of termination of the reservations• By the early 1940s it was clear the

reformers’ objectives for the Reorganization Act were not being met.— Indians were not moving toward self-

sufficiency through communal self-government (reasons considered later)

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The Termination PeriodDissatisfaction with the BIA in 1940s

Recognition that the end of BIA guardianship was probably no closer than it was in 1934• Was openly suggested that the BIA was

attempting to perpetuate itself and continue its guardianship by forcing Indians to accept government organizations that created incentives for them to remain dependant.

Congress decided to reduce emphasis on the tribe and return to a focus on individuals by trying to “help” Indians take their places in the larger society• 1953, House and Senate Concurrent Resolution

108 called for termination of Indian Reservations

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Termination Period, (Cont.) Between 1954 and 1962, 12 separate acts

dealing with termination were passed, mandating that policy shift toward termination of federal jurisdiction over Indians and ordering the BIA to promote:• "(1) a standard of living for Indians comparable

with that enjoyed by other segments of the population, &

• (2) the step-by-step transfer of Bureau functions to the Indians themselves or to the appropriate agencies of local, state or federal government."

Federal funds were allocated to states to facilitate their takeover of some Indian policy functions• An effort to relocate Indians from their reservations into

urban areas was part of the policy, because this was expected to be a better way to acculturate Indians

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Indian MigrationMany left reservations in the 1940s and

1950s U.S. Economy expanding rapidly and many

opportunities existed outside the reservations• Large populations of non-reservations

Indians today in cities like Seattle and Los Angeles, whose families relocated during this period, and became acculturated to a substantial degree

• Tend to have done well economically— Substantial migration of non-Indians from

rural America into rapidly growing cities, particularly in the Western U.S., during the same period, and Indians who moved have comparable standards of living to the families of the non-Indians who moved

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Those Left Behind Indians who did not move became even more

dependent on the BIA and on tribal governments established under the reorganization process

States receiving federal funds to administer Indian affairs began demanding that the federal government take the program back, and the policy objectives cycled back to one of "self-determination" through tribal government• Lyndon Johnson's war on poverty resulted in a

number of new federal programs which, taken together, sharply increased federal expenditures on Indian programs, although many of these programs were administered by agencies other than the BIA, whose role was reduced

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The Policy Cycle Continues Johnson also advocated putting an end to the

termination program, and Richard Nixon agreed In 1970 Nixon declared the policy of termination a

failure and called on Congress to develop a policy that would permit Indian tribes to manage their affairs with a maximum degree of autonomy

Johnson and Nixon both advocated policies to develop Indian leadership, expand credit to tribal governments, improve schools on reservations, increase tribal control over those schools, and transfer control and responsibility from the federal government to the Indian governments themselves rather than to state or local governments. • Also advocated continued federal funding for various

kinds of services and assistance

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Indian Self Determination and Education Assistance Act, 1975

Allowed Government agencies to enter into contracts with tribal governments which would then let the tribal governments administer the federally funded Indian programs. Programs are being administered by a multitude

of agencies, although the BIA remains the largest administer of Indian programs• Indian programs also are components of other

programs in the Departments of Education, Health and Human Services, Housing and Urban development, Transportation, Agriculture, Labor, Commerce, and Treasury, as well as the Small Business Administration, etc.

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Diversification of Indian Policy Relative roles of the various departments and

trends in diversification are suggested in Table 7.1 of book Department of Interior with the BIA, spent an

estimated 46.6 of the total spending on Indian programs in 1973, but this was down to 36.5% in 1985

Health and Human Services spent 37.3 percent of the money in 1973, but the percent declined to 32.4 in 1985

Housing and Urban Development went from 3.2 up to 10.8 between 1973 and 1985

Education, Energy, Transportation, Treasury, and the EPA had no programs in 1973 but by 1985 all of them has some Indian programs, with the department of education spending 11% of the total

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Table 7.1 Fed Spending(%)

Agency 1973 1981 1985Education -- 12.2 11.0

HHS 37.3 26.6 32.4

HUD 3.2 11.7 10.8

Interior 46.4 40.8 36.5

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The Bureaucratic Morass Decision to continue federal funding fed directly into

the hands of the growing number of bureaucratic agencies involved with Indian programs. Responsible for administering the funds, and for

technical assistance and other services, so they can attach strings to funds that give them to perpetuate influence and control

There is a difference now: instead of a monopoly agency, the BIA, many agencies have a stake in Indian wardship• Many agencies lobby for additional funding for their

Indian programs, and for additional controls to see that the funding is properly used

Mandate for self-determination has been thwarted by the bureaucratic process, making it very difficult for tribes to break their dependencies on the federal government.

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Current ObjectivesOther congressional acts followed which are

suppose to encourage self-governance, not in the individual sense but in the tribal sense

1988 amendment to the 1975 act authorized development of "self-governance plans" by tribes, for instance, and authorized funds to finance the planning process• Many consultants have made a lot of money

advising tribes and the BIA on development of such plans

Today, self-determination through tribal governments seems to be the dominate goal of reformers, as it was in the 1930s, rather than acculturation, as it was 1887 to the 1930s and 1945 to the late 1960s and early 1970s

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Development and Consequences of Tribal Governments

Indian Reorganization Act was signed into law on June 18, 1934 Ended allotment, authorized spending

$250,000 annually to formalize governments on reservations and another $2,000,000 annually to acquire land and expand reservation holdings

Tribal councils under the act were to adopt constitutions, and create by-laws to establish how the tribe would conduct its economic activities • e.g., by laws were to establish methods to control the

leasing or sale of lands, borrow of money, and negotiate with state or federal governments

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Application of the Act The BIA head wanted the act to mandate the

creation of constitutions and by laws, but Congress did not do so Majority of the adult Indians on a reservation had

to vote in favor of applying the act before it could be applied.

Many Indians opposed the act, and similarly, they opposed its application,• It was clear that those in opposition would vote in

relatively large numbers, and that the necessary majority support would not exist on some reservations

Department of Interior's solicitors office had to approve of the voting arrangements: ruled that all eligible votes would be counted whether cast or not, and that all votes not cast would be counted as favoring application of the act.

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Examples of Voting Results On the Hopi reservation more than 85 percent

of the eligible voters opposed reorganization and decided to boycott the referendum vote • All of those non-votes were counted as

affirmative votes and not surprisingly, the BIA could report that the referendum passed by a huge margin

Other BIA manipulation of votes• On some reservations the BIA promised

grants and loans for favorable votes• On the Pine Ridge Reservation a number of

dead people somehow managed to vote for reorganization, and even after this was proven the vote was allowed to stand and reorganization was allowed to proceed

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Overall Outcome of VotesDespite BIA efforts, 77 tribes voted against

the act while 181 voted in favor of its application (assuming that non-votes actually implied support), although apparently the vote count was problematic on virtually every reservation where referendums passed

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One Size Fits All Governments BIA used the reorganization act to create

Indian governments that fit a model of communal ownership and centralized decision making that might be called democratic socialism (e.g., as practiced in Sweden). U.S. Constitution was a model for many

aspects of these governments, but the fact that these tribal governments actually controlled the most important resources on reservations (e.g., tribal lands), with decisions subject to BIA approval, meant that the outcome, in many cases, was more in line with a socialist economy than a capitalist one

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Puppet Governments Tribal governments are “democratic” in that members

of the tribal councils were to be elected, but given the degree of BIA dependence, the result was more like that of a puppet government dominated by some more powerful authority

• e.g., states of the Soviet Union had their own governments including elected legislatures but the real power was held by the political elite in Moscow

Indian governments faced limitations decreed by the BIA and could do little more that bargain with the BIA• The major resource that most Indian tribes have is

their lands and any natural resources tied to those lands, and the true power of the BIA over Indians works through the BIA's trust authority.

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Puppet Governments, (Cont.)• since members of tribal governments also obtained

much of their personal compensation from the BIA, many ended up doing the BIA’s bidding in exchange for various perquisites and compensation

Tribal governments probably could not have actually governed even if the BIA had given them a chance to

BIA's own chief anthropologist predicted that the imposed constitutions were severely flawed because they attempted to impose on Indians, with their strong traditions of individual autonomy and voluntary associations, a system that emphasized the community rather than the individual and coercive central government institutions rather than voluntary associations

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Results Elections created artificial elites who, once elected,

ruled in more or less arbitrary fashion but maintained power by granting privileges and funds to their supporters Under Indian customs, individuals had attained status

by displaying wisdom and knowledge, generosity, and courage, and such individuals may have been elected, but once in office, their incentives changed

Rather than serving as a means of self-government, the one-size fits all tribal governments created a new set of institutions that raised the cost of doing business on reservations, thereby increasing Indian dependency

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Backlash Against BIA Manipulation

Congressional and Presidential reaction in the 1940s and 1950s is not surprising Decided to terminate the reservation system and

diversify the control over Indian programs.• That did not work either so under Johnson, and

especially Nixon, the self-governance objective reemerged with the Indian Self-Determination and Education Assistance Act of 1975, but now in a new environment where the BIA is much less powerful because of the diversification of programs among large numbers of agencies.

• The BIA is still the trustee of Indian lands, but many other agencies now control large portions of the funding that can be used in Indian programs.

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A New Meaning for “Self-Determination”

Self-determination does not mean self-sufficiency through tribal government any more

According to the wording of the 1975 Indian Self-Determination and Educational Assistance Act, the goal is “Self determination by assuming maximum Indian participation in the directions of ... Federal services to the needs and desires of those communities” Now means that Indians should be given more control

over federal programs. Produced is a new kind of wardship by encouraging

tribal governments to invest their time and effort in competing for federal benefits that they can control.

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Competing For Benefits Since Federal programs are now supervised

by several different federal agencies, tribal governments have had to learn how to operate in a much broader political environment Success in this competition for Federal funding

requires a tribal government to keep track of a large array of legislation and bureaucratic programs which may offer them the chance to attract funding, and then pursue those funds through lobbying and other forms of politically competitive activities, like grant proposal writing, applications for loans under various kinds of programs, etc.

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Changing Competitive Environment

During the Johnson Administration the focus was on War on Poverty activities, such as capital investments and various manpower training programs, along with technical assistance in planning for and pursuing long run growth.

This has changed, and increasingly the competition is for funds to build houses, hospitals, schools, roads, etc., and for health care expenditures, funds for primary and secondary, and now college education programs e.g., Through the 1970s and 80s new homes were built

for virtually every Indian family on Montana reservations

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Changing Tribal Governments To compete in a multidimensional and changing

political environment, tribal governments have had to develop their own bureaucracies to gather and process politically useful information Over half of the employment on reservations is

government jobs, either in the tribal government or in the reservation offices of the BIA and other federal agencies.

BIA reports that these tribal governments have gained substantial administrative skills over the last few decades, but their skills are in the pursuit of federal government transfers, not in the administration of actual productive activities on the reservations• Much of the work on reservation that is generated by such

programs is not done by Indians

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Many Benefits are Captured by Non-Indians

Non-Indian construction companies make a lot of money building houses and roads (often with requirements that they employ a certain number of Indians)

“Experts” earn a lot of money selling consulting or management services to Tribal governments

Other processes for diverting benefits from Indians to non-Indians are a lot less obvious (e.g., communities near reservations can benefit from expenditures on education, etc.)

As with the Dawes act, many benefits of Indian programs continue to be captured by non-Indians

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Indian Beneficiaries Indians employed by tribal governments

enjoy the middle class life style that government bureaucrats all over the country enjoy. Also, the Indian Reorganization Act of 1934 states:

"The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian Tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions”

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Growing Indian Employment in the BIA

Qualified Indians had to be hired by the BIA with preferences over non-Indians Not an important constraint on the BIA in the 1930s

because very few Indians were qualified, but that is no longer the case. • Indians now hold many of the civil servant

positions within the BIA, so they also benefit from the ongoing dependence of Indians on Federal programs.

• Among the well over 5,000 statutes that Congress has passed dealing with Indians, many of which have passed since 1934, the mandate to employ qualified Indians in programs for Indians has also been applied to other agencies.

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Government Employment for Indians

Virtually all legislation dealing with an Indian program since the 1970s have mandated preferential employment of Indians living on or near the reservations that gets the program. Large numbers of Indians are employed in all of

the agencies that the tribal governments deal with, so, as suggested earlier, most full time, permanent employment on Indian reservations is government employment, either within the tribal bureaucracies or the federal bureaucracies• These employees are relatively well off, but they are

dependent on the federal government for their well being.

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Perverted Incentives Estimates suggest that at least 1/5th of federal

expenditures on Indian program is pay for federally employed bureaucrats dealing with the programs Their incentives are to not make the tribes self-sufficient,

since dependency is what justifies their jobs and status. Both employed and the unemployed on reservations

are largely dependent on federal government Many Indians who leave the reservations to go to

college choose to go back to the reservations in order to get a bureaucratic job since in their experience, the people who are the most well off are those who hold such jobs. • Similar to kids from inner city slums who choose to be

drug dealers in part because the wealthiest people they see are drug dealers