TEN YEARS OF TRIBAL GOVERNMENT
Under The Indian Reorganization Act
by Theodore H. Haas, Chief Counsel
THE INDIAN REORGANIZATION ACT (48 Stat. 984), one of the most important and comprehensive Indian laws, was adopted a few days before the close of the first Congress which convened in the administration of Franklin D. Roosevelt. Although approved by the President on June 18, 1934, none of the authorized appropriations became available until May 1935. Though the Act dealt with a wide variety of subjects including land, credit, education, Indian employment and tribal organizations, this article will be confined to a discussion of the self-government feature.
KLAMATH INDIANS FIRST PROPOSED INCORPORATION IN 1927
The first suggestion for the incorporation of tribes was advanced in 1927 by the Klamath Indian tribe of Oregon. Indians of other tribes, including Vice President Curtis, a Kaw Indian, contributed many ideas which were embodied in the bill. The Indian Reorganization Act was presaged by the enactment by Congress of the Pueblo Relief Act on May 31, 1933, prohibiting the Secretary of the Interior from spending moneys appropriated under that Act for the various Pueblos "without first obtaining the approval of the governing authorities of the Pueblo affected."
While the Indian Reorganization bill was pending in Congress, Com missioner Collier and some of his principal aides attended ten meetings in various parts of the country to discuss and consult with delegations from Indian reservations and with other Indians about the proposed legislation. These conferences constituted a new precedent. They symbolized a new relation between the Indians and the Indian Office which the Commissioner hoped would evolve. In lieu of administrative absolutism there would be developed between government officials and Indians a partnership in the determination of many policies. Instead of the superintendents or Washington officials deciding everything, there would be an area for local self-government. If the Indian councils proved capable and faithful to their trust, they would be delegated additional power by the Secretary.
Under the terms of the Indian Reorganization Act power of approval or veto over the disposition of all tribal assets was given to the Indian tribes. It also authorized them to take over control of their own resources and to con-
duct tribal enterprises as membership corporations which would be subject to diminishing federal supervision as the tribal leadership showed a desire for more control and an ability to direct their affairs. Other enumerated powers were the right to employ legal counsel (subject to the approval of the Secretary of the Interior with respect to the choice of counsel and the fixing of fees), the right to negotiate with federal, state and local governments and the right to be advised of all appropriation estimates affecting the tribes before such estimates are submitted to the Bureau of the Budget and Congress.
When a tribe is ready to draft its constitution, a constitutional committee of representative tribal members is chosen. It is the duty of this committee to draw up a constitution which will fit the needs of the tribe. The Department offers its assistance in the preparation of such documents, but only to the extent that such assistance is required. Scrupulous care is exercised to see that the document as drafted represents the wishes of the Indians.
When the constitutional committee has completed its draft and is ready to present the constitution to the tribal members for a vote on election is requested by the constitutional committee or by a petition signed by one-third of the adult members of the tribe. The calling of this election is mandatory upon the Secretary of the Interior when the request is mode in the manner prescribed by law. Thus a tribe may vote repeatedly upon the question of adopting a constitution, in those cases where such elections have failed to c arry. It is not within the Secretary's discretion to determine whether or not the election shall be called.
CONSTITUTIONS AND BY-LAWS SUBJECT TO AMENDMENT
The constitution and by-laws when ratified by majority vote of the adult members of the tribe or of the adult Indians residing on the reservation as the case might be, and approved by the Secretary of the Interior, could be revoked by an election open to the same voters and conducted in the s ame manner. Amendments may be ratified by the tribe and approved by the Secretary in the same manner as the original constitution and by-laws. The Act also provided that it should not be applicable to any reservation wherein a majority of all of the Indians entitled to vote, voted against its application. The original act provided that elections had to be called an the Act within one year after its approval. However, by the Act of June 15, 1935, this period was extended another year. The amendment to the act modified this rule so as to require a majority of those voting in an election in which not less than 30 per cent of those entitled to vote actually vote. Although many provisions of the statute did not originally apply to the Territory of Alaska or the State of Oklahoma, the Act of May 1, 1936, (49 Stat. 1250) and the Act of June 26, 1936, (49 Stat. 1967) extended the main provisions of the Indian Reorganization Act, with minor modifications, to Alaska and to Oklahoma.
During the period in which votes were taken on whether the Indian Re organization Act should apply to the reservations, which extended from 1934 to 1936, 258 elections were held. The Oklahoma and Alaska Indians were not concerned in these elections as they were automatically brought under the law. In this balloting, 181 tribes (representing 129,750 Indians) voted to accept the law and 77 tribes (86,365 Indians) rejected it. About half of the latter were members of the Navajo Tribe (45,000) which rejected the act by a close vote.
At the present time there are 195 tribes, bands, and communities, or groups thereof, which are under the Indian Reorganization Act, excluding Indians in Oklahoma and Alaska. The Act applies to 14 groups of Indians who did not hold elections to exclude themselves from the application of the act.
On October 4, 1935 the first constitution prepared in accordance with the Indian Reorganization Act was adopted by the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, by a vote of 549 to 123. It was approved by Secretary Ickes on October 28, 1935. Shortly there after constitutions were adopted and approved by the Rocky Boy's, Lower Brule and Fort Belknap Reservations. Ninety-three tribes, bands or Indian communities in the United States have adopted constitutions and by-laws, and seventy-three have been granted charters, permitting them to operate as business corporations.
Many constitutional provisions are substantially the same, notably those designed to enable the tribes to take advantage or the specific powers and benefits provided for in the Act. There are wide variations, however, in the provisions regarding tribal membership, the governmental organization, the safeguards available to individual members, the methods of handling tribal business and the extent of the supervision of the Secretary of the Interior.
TRIBAL GOVERNMENT TAKES MANY FORMS
While formal tribal organization has taken many forms, some govern ments have been adaptations of earlier tribal organizations. Some have merged the old and new forms and provided for a modern council and at the same time invested the chieftains with some power. A few organizations like the Minnesota Chippewas are confederacies.
After adopting a constitution and by-laws a tribe may, in accordance with section 17 of the Indian Reorganization Act, request the Secretary to issue a charter to the tribe. This request is made in the form of a petition signed by one-third of the adult Indians. The charter must be ratified by the tribe in a special election called by the Secretary. As in the case of the constitution, the calling of an election on the charter is mandatory when a petition is presented to the Secretary. A charter thus issued by the Secretary and ratified by the tribe may not be revoked or surrendered except by an Act of Congress.
CHARTERED TRIBES BECOME BUSINESS CORPORATIONS
Most tribes subsequently supplemented their constitutions and by-laws by adopting charters. The Indian Reorganization Act provides for the issuance to organized Indian tribes of charters containing such powers as are incident to the normal functioning of a business corporation, such as capacity to make contracts, to adopt and use its corporate seal, to sue and be sued in courts of competent jurisdiction, and other powers as set forth in the following language of section 17: "to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate and dispose of property of every description, real and personal, including the power to purchase restricted Indian lands, and to issue in exchange therefor interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law,. . . . .".
The exercise of corporate authority by a tribe is limited in certain respects by specific prohibitions against any sale, mortgage, or a lease for more than ten years, of any land within the reservation boundaries. The grant of a charter is made to enable a tribe more effectively to utilize the powers which it already possesses as an organized body, (55 I. D. 14), in promoting the welfare of its members. It bestows legal responsibility upon the organization and it adds weight to the legal status of the government body charged by the members with the duty and authority to administer the tribe's powers.
TRIBAL POWERS LIMITED
Neither the constitution and by-laws nor a corporate charter give the Tribal Council power to control the conduct of members of the tribe except in respect to the matters set forth therein. They do not interfere with the pursuit by the members of their own private objectives except in such ways and to such an extent as the members themselves have agreed. They do not in terfere with allotment rights or shares in tribal benefits. The property with which the Tribal Council may deal is only the property of the tribe as a whole, not that of the individual members. Several tribes, which have constitutions but failed to ratify charters, have recently ratified charters, and thus have become eligible for loans under the revolving credit fund.
Many tribal governments are approaching the end of the first decade of their operation. To some tribes with corporate charters the end of the first ten years has a special significance. Most of the I. R. A. charters provide that after the charters have been in effect for a specified period of years certain supervisory powers of the Secretary of the Interior may be terminated by action of the tribal council, the Secretary and the tribe. In some charters the supervisory powers of the Secretary may be terminated after a period of five years. If the Secretary disapproves the request for termination by the tribal council, the council may be freed from this supervision if two-thirds of the eligible voters of the tribe concur.
SOME DIFFICULTIES OF TRIBAL GOVERNMENT
Before the various aspects of tribal governments are discussed, some of their difficulties, post and present, will be reviewed under the following headings:
1. Federal Indian Policy.
2. Institutional opposition to tribal government within the Indian Office.
3. Lack of familiarity among the Indians with white culture.
4. Misunderstandings and misinterpretations of the Indian Reorgani z ation Act.
5. The war.
6. Abolition of the direct governmental services to tribal government.
1. Federal Indian Policy. Until comparatively recently the policy of the Federal Government has been to convert the Indian to the conventional land owning white farmer. The first step consisted in an attempt to break up tribal assets into individual allotments, to terminate historical tribal governments, and to suppress Indian customs and tribal laws. As a result some tribal governments had virtually disintegrated or had lost a great deal of their original vigor and importance. Broken treaties and promises, and harsh to cruel treatment naturally caused many Indians to feel varying degrees of hostility to the white race. The suspicion was ingrained that any new policy which might be started by the government was motivated by a desire to aid the whites and hurt the Indians. Since Indians were denied their natural way of life, the government had to establish the odious ration system which sapped initiative and resourcefulness. Many of the Indians became dependent upon government aid as a consequence. A tradition of need for assistance therefore has been developed among many who have experienced long periods of dependency on rations or other government assistance as well as unemployment or partial employment.
2. Institutional opposition to tribal government within the Indian Office. When the Indian Reorganization Act was enacted in 1934 a large number of Indian Service officials, including superintendents and chiefs of divisions in the agencies and central office, were skeptical of its success; in fact there were some who did not believe in Indian self-government. During several previous decades some important officials of the Service were lukewarm, or even unfriendly to many tribal councils. These employees, consciously or unconsciously, relegated Indian organization to the background. They absented themselves from council meetings.* Indian leaders frequently were not advised of reservation programs and other important acts. Often they were not consulted in the formulation of reservation plans. The attitude of the local administration in such cases may be likened to that of a colonial administrator who feels a keen sense of duty as a superior over on inferior, people whose
*Some superintendents who were sympathetic with self-government did not attend tribal council meetings unless asked, because they did not wish to influence the council.
lives he controls. The feeling that Indians are not prepared to handle their own affairs, though prompted by high motives, may result in a display of paternalism towards the Indians which they will deeply resent. Any mistakes of tribal governments, which supported the preconceived idea that Indians were unfit, loomed large. Achievements, by the same mental process were forgotten. Fear was manifest among a few that their own power would be to a great extent jeopardized by another body having something to say about the management of the reservation. They betrayed an obvious annoyance when the council made recommendations concerning matters which they regarded as peculiarly a governmental responsibility, one within their purview, of course. While there has been great progress, there is still room for improvement.
3. Lack of familiarity among the Indians with white culture. With the exception of a comparatively few tribes and individual Indians, American Indians are among the most economically depressed groups in the country. Ed ucated Indians and those experienced in white methods often leave the reservation. While there has been a great improvement in the amount of education which most Indians receive, it is still several years less than that of most whites in neighboring communities. This leaves a dearth of educated leadership to carry on at home. Also the inability of many of the older Indians to under stand English and many of the younger Indians to understand their native Indian tongue adds additional barriers. Lack of understanding and cooperation between the new and the old generation, an inevitable consequence in a rapidly changing culture, is often used to keep Indians in a divided status. Indians in some states are disenfranchised, and even in states where they vote, nowhere, save possibly in the State of Oklahoma, are many Indians elected or appointed to important offices. All these factors indirectly reflect on local Indians. For example most Indian councilmen had little experience in local government or in political matters generally prior to the institution of self-government on the reservation. Deeply frustrated groups are often plagued by internal rivalry and factionalism. Scapegoats are often sought. The Indians' plight is blamed on a person, a Bureau or a statute. The Commissioner of Indian Affairs, the Indian Office, the Superintendent, Council or the I. R. A. may be attacked as the cause of all woes.
4. Misunderstandings and misinterpretations of the Indian Reorganization Act. Prior to the enactment of the Indian Reorganization Act during the early discussions of it, there was some condemnation by the delegates attending regional-held meetings over the country, based on misunderstanding of the probable effect of the statute, or on reasons not connected with the proposed legislation. As was to be anticipated, some opponents of the new administration including selfish vested interests, conducted a nation-wide campaign of false propaganda to defeat the measure. Real estate interests which had been acquiring Indian lands by devious methods, and stockmen and lumber
interests which had profited by the inability of the Indians to protect their own resources, waged a campaign designed to perpetuate their privileges, often through hired Indians. Fantastic rumors were spread, such as: the bill was designed to deprive the Indians of the interests in their lands, to take away their allotments and communize them, to put the church out of business, and forbid missionaries to work among the Indians. For example, the Navajo Tribe rejected the act by a close vote because many voted in the negative, misadvised that its adoption would result in the confiscation of their sheep and goats by the government. Even before the voting was over there was started the first periodic drive by whites to scuttle the I.R.A., abolish the Indian Service, and terminate Federal guardianship over resources. This drive has recurred periodically. Another method of attack is to resort to litigation to vacate sentences of tribal courts imposed for violations of tribal ordinances.
5. The war. Since most Indian reservations are in rural, thinly populated regions, the difficulties of transportation within recent times have greatly added to the problem of communication so necessary to unity, between Indian leaders on and off the reservations. Various meetings, including those called by the Indian Service to exchange ideas and diffuse knowledge helpful to tribal organization, have been stopped because of travel restrictions and cuts in appropriations. Many courageous and able leaders were in the armed services or defense industries. Many have recently returned and are again playing a vital role in tribal affairs.
6. Abolition of direct governmental services to tribal government. The field staff of the Organization Division, all of whom were Indians, selected for their zealous espousal of Indian participation, stimulated tribal self-government. The failure of Congress to appropriate money for this work has retarded the development of tribal organizations on some reservations.
ACHIEVEMENTS OF TRIBAL GOVERNMENT
The achievements of tribal governments despite the difficulties which I have briefly enumerated have nevertheless been a long step forward. On some reservations work in tribal self-government has been laudable. Most tribal councilmen are seriously endeavoring to exercise their powers wisely and thoughtfully, because they have a stake in the final outcome. On this very principle the government predicates its whole program of self-government, namely that people who are most active in the making of their government will in the long run do most to perfect it. A resume of the accomplishments of tribal governments will prove this thesis.
1. Self-government and the war. Enemy propaganda has sought, according to reports, to exploit the weakest link in our political and economic system. Failure to live up entirely to the American creed of brotherhood and equality has been assailed, particularly in connection with minorities. Persons of Indian ancestry have been included. While sowing the seeds of prejudice
in various religious and racial groups, the enemy propagandists argued that the United States had broken treaties with the Indians and impoverished them by reducing the area and quality of their land. Such propaganda for many reasons has had little effect on the American Indian. Even before the outbreak of the war with Germany and Japan some Indian tribes like the Confederated Tribes of the Warm Springs Reservation of Oregon passed resolutions denouncing this propaganda.
There is no doubt that the gradual increase in self-government among the Indians during the last decade has contributed much toward overcoming historical bitterness and mistrust felt by some Indian groups against the United States. This has been evidenced by Indian leaders who frequently expressed their patriotism by speeches and deeds. Tribal councils invested over two million and a half dollars of funds in war bonds besides making sizable contributions to the Red Cross. Moneys were also set aside by some tribes to make loans to tribal members to pay transportation and tuition to trade schools in order to prepare members for defense work. A considerable amount of tribal land was permitted, leased or sold to the United States
government for war purposes.
2. Management of tribal resources. One of the major functions of tribal councils is the management of tribal property. However, on allotted reservations containing little tribal land or other tribal resources, some tribal councils found it difficult to maintain interest in self-government after the novelty of elections had worn off. Some of the Lake States with meager tribal assets emphasized social and recreationol activities. In other similar situa tions, as for example in the State of Oklahoma, the councils were mainly concerned with loans, leases, rehabilitation and relief. The chairman of the Caddo Council, by July 1940, intimated that the tribal revolving credit fund had enabled almost one-third of the tribal membership to be rehabilitated and taken off direct relief.
Tribal councils on the whole have exercised good judgment in controlling their resources. Tribal funds have been used to acquire fractionated heirship lands, to make loans for the purchase of land, livestock and equipment for individual members, and for tribal enterprises, such as livestock cooperative associations, tribal farming enterprises (including the producing of hay on tribal land), producers and consumers co-operatives, and arts and crafts organizations. Group action through corporations and cooperatives has increased the utilization of Indian resources. When the resources are owned by the tribe, the benefits of the enterprise accrue to members of the tribe as a whole. Prior to the passage of the I.R.A., only a handful of livestock associa tions were organized. Now they have increased in strength and number totaling about 160 cooperative livestock associations. Approximately 40 per cent of the Indian-owned beef cattle is managed by livestock associations which
have played an important role in improving breeding and management practices, range control, and feed production and cooperative sales. They have not only materially increased the income derived from the sale of cattle but they have enabled the Indians to utilize more fully the range lands, including the forestry areas suitable for grazing, aggregating approximately 80 per cent of the total Indian land resources.
In the initial stages of these enterprises supervision is usually given by Indian Service personnel to insure efficient operation and protection of the loan of the Federal Government. When the enterprise has created a suffi cient surplus to insure its repayment, supervision is gradually relinquished until full responsibility is finally assumed by the Indians. Unfortunately this process is often slow.
Land management laws dealing with assignment, leasing, permitting and use of tribal lands also have been passed. Unfortunately economic plans for the use of Indian property are sometimes made by Indian Service officials with little or no participation by the Indians. Nevertheless, in my opinion there has been a slow but gradual increase in the amount of consultation by government officials with Indian leaders in the framing of policies. It is becoming recognized that a plan, no matter how idyllic, which is not favored by the people affected may be doomed to failure.
An increasing number of ordinances have been enacted by tribal coun cils to protect fish and wildlife, to provide a better and more equitable use of tribal land, and to conserve tribal land from overgrazing. For instance, recently the Papago Tribal Council enacted ordinances reducing excessive stock on tribal lands and eradicating horses infected with dourine. The White Mountain Apaches have appropriated money to round up wild horses.
The power to approve loans from revolving credit funds to members has been granted to the Flathead Tribe. It is reported that on the whole the tribal loan committee has been successful. In a few jurisdictions there had been abuses of the power to control certain tribal assets and distribute funds. A few tribal treasurers have misused funds and councilmen, in instances, have appropriated to their own use substantial sums by paying larger per diems or for excessive travel. Others have favored relatives and friends. But these are only the exceptional cases.
3. Social welfare and education. Some tribes having conducted very extensive home improvement and public works programs, are thus beginning to supplement the work of the government in the field of social service. The Apache Tribe of the Mescalero Reservation in New Mexico has constructed houses for each of the families. Tribal loans have been given Indians requiring special medical attention not available at local government hospitals. In addition, committees have assisted in health, education and relief. In a few places the whole relief program has been financed by the
tribe. Almost thirty councils have included a compulsory education section in their law and order code and three councils have adopted special compulsory education ordinances. Tribal funds have been used to employ truant officers.
The Makah Tribe of the Makah Indian Reservation, Washington, bought from the United States Government an abandoned construction camp no longer needed by the U.S. Engineers. Under the direction of a tribal council almost entirely composed of fullbloods, 64 new dwellings were moved to the Village of Neah Bay, the most populous village in the reservation, and about 250 members of the tribe secured vastly improved homes as a result. Twenty-four other buildings are utilized as boat houses, garages, wood shacks and other purposes. About $60,000 of tribal funds was expended on the buildings and their removal.
4. Law and order. Under the revised law and order regulations promulgated by the Department soon after the passage of the Indian Reorganization Act, Indian Service officials are prohibited from controlling, obstructing or interfering with the functions of the Indian courts. Many councils have adopted their own law and order codes for their reservations which, after Secretarial approval, supersede the general regulations. Indian judges, while not always meticulous in following the proper procedure, have usually been conscientious and able in dispensing justice. Yet there is room for improvement in this field. The remuneration of Indian judges and Indian police is very low. Their training in law and procedure is often slight.
5. Miscellaneous. Tribal governing bodies besides those mentioned above have also enacted ordinances and resolutions dealing with a wide variety of other subjects. These include the correction of census rolls, the adoption and abandonment of membership, domestic relations including adoption, marriage, divorce and the appointment of guardians, inheritance, taxation and licensing, and tribal organizations and procedure. Variations in legislation will depend upon many facts, such as the power vested in the tribal councils by the tribal constitution, the local conditions and the calibre of the tribal officials. In distant Alaska the council of the native village of Noatak passed ordinances dealing with building permits, the making of wills and the straying of dogs.
6. Medium for communication. Ignorance breeds many ills. Maladministration, misunderstanding, and the dissemination of misinformation result when the channels of communication break down or are defective. The isolation of many reservations makes the transmission of developments in the Service of special importance. One of the major problems of the local agency administration is to diffuse a knowledge of its policies and of other important facts to local personnel and others principally affected.
Tribal leaders having a responsibility of conveying the news to their
people should be kept advised of matters of importance to the Indians. Tribal Councils offer an excellent medium for the transmittal of this information. Furthermore, by conferences involving the council, the superintendents, and other government officials, an opportunity is afforded to become acquainted with Indian leaders and vice versa.
7. Recommendations. Community government also furnishes a means whereby administrators may know the opinions, hopes end aspirations of the Indians. Officials who are inclined to resent recommendations of Indian councils which they consider are in a field outside of the jurisdiction of the council are treading on doubtful ground. It is not uncommon for state legislatures, municipal councils and even Indian Service superintendents to pass resolutions concerning matters outside of their purview. Tribal councils who might do likewise should not be discouraged. Administrators should appreciate the insight gained thereby into Indian thinking. An ability to vocalize a complaint constitutes an emotional outlet of distinct social value.
A provision of the Indian Reorganization Act whereby the tribal councils were authorized to advise the Secretary of the Interior with regard to all appropriation estimates of Federal projects for the benefit of the tribe has apparently been disregarded in part because of the administrative difficulties involved. I believe that explaining to the councils these estimates and securing their views would be a very important educational process for both the Indian and the government personnel. An important step has already been taken. Budgets involving the use of tribal funds are discussed with the appropriate tribal council.
8. Improvement. Many effective and modern procedures have been established by councils in the conduct of business affairs and meetings. Tribal offices are now in evidence, some in the agency building and others in a separate tribal building. The number of persons who go to these tribal o ffices for assistance on some jurisdictions exceeds those who visit the agency.
Most of the Indians have also increased their knowledge of their consti tutions and charters. There are still, however, many questions of interpretation of these documents which sometimes test the ingenuity of lawyers. Some tribal officials have been accused of violating provisions of their constitutions. Such actions may violate the Law and Order Code, in which case a remedy lies through a complaint of the tribal court. In others, recourse may be found in the impeachment or recall of the official, where the constitution provides for such remedies. Finally the electorate has, in all cases, the ability to elect new officials on the next election day.
9. Tribes not organized under the I. R. A. Four tribes which voted to come under the Indian Reorganization Act are operating under constitutions not under the Act.
Thirteen tribes which are not under the Indian Reorganization Act are
operating under constitutions. Eight of these constitutions have been ap proved by the Commissioner of Indian Affairs. The governing body provided for in some of these constitutions has considerable power. In other constitutions the powers are meager.
Under the present law, tribes which are not under the Indian Reorganization Act, cannot come within its provisions, and tribes which are under the Act cannot exclude themselves from its provisions.
10. Relation between Indian self-government and world peace. Democracy in many parts of the world is on the march; a march that is increasing in tempo. The economic income of oppressed people throughout the world has become a concern for all and is receiving widespread attention. World peace is linked up with the attainment of more self-government, the decline of imperialism and the elimination of general poverty. Colonial people everywhere are looking hopefully to the United States Government. It is especially important that this country demonstrate the sincerity of its ideals and its ability to effectuate them. On every front this must be exemplified by the increasing substitution of local self-government even on the smallest reservations, for bureaucratic control. The Indian Office, together with tribal councils, by increasing the standard of living of depressed Indian groups and achieving a high measure of self-determination, will be in the vanguard of the movement for greater economic and political democracy.