ITS PAST AND FUTURE ROLE IN EXECUTIVE BRANCH & CONGRESSIONAL POLICY-MAKING
(A THREE-PART PAPER)
National Indian Policy Center
The George Washington University
2021 K Street, NW, Suite 211
Washington, DC 20006
The National Indian Policy Center was established by congressional initiative and authorized by Public Law 101-301. The legislation, supported by a number of tribal leaders, provided for the planning office to be located at The George Washington University in Washington, DC.
The NIPC operates under the direction of a Planning Committee comprised of nationally prominent tribal leaders and representatives of major Indian organizations. Recommen-dations and support are not limited to Native governments and national organizations; individuals are also invited to participate in the development of the center. For additional information on how to participate, please contact the National Indian Policy Center.
The National Indian Policy Center commissioned the three papers in this report as demonstration projects in the area of tribal governance.
TRIBAL REPRESENTATION IN WASHINGTON, D.C.:
ITS PAST AND FUTURE ROLE IN EXECUTIVE BRANCH
AND CONGRESSIONAL POLICY-MAKING
(a three-part study)
Tribal governments are at a crossroads in their relationships with the federal government. As tribal leaders show greater interest in fully participating in policy deliberations by the Congress and executive branch agencies, they stand to benefit from a review of the history of federal-tribal consultations and the scope of Indian policy decisions by the federal government.
Under the Constitution, the federal government meets its trust responsibility to care for tribal interests by negotiating with each of the more than 500 federally recognized tribes on a one-on- one basis. However, in addition to issues that affect individual tribes there are matters of national policy that Congress and the executive branch deal with on a daily basis. Often, they are addressed in broader pieces of legislation such as environmental protection and tax incentives in which Indians are only a minor participant. More frequently, the vital interests of all tribes are addressed in specific Indian legislation or administrative decisions by the executive branch.
Since 1944, the National Congress of American Indians has been the most visible advocate of broad tribal interests in Washington, D.C. However, at any given point in time over the past 49 years the total number of tribes who were actual members of the NCAI has never exceeded 50 percent of all federally recognized tribes. In recent years there has been much discussion and debate on how tribal representation can be better accomplished. Some have argued that the time has come to establish a governmental organization that could speak for and represent the official position of all tribal governments before the federal government on matters that affect all tribes. Others have argued that it would be impossible to ever achieve 100-percent participation of tribes in the development of united positions on such issues. A substantial number of tribal officials have argued that the existing arrangement with NCAI as a forum to develop positions is preferable because of its flexibility. Moreover, the NCAI does not purport to substitute itself for individual tribes in their exercise of individual government-to-government rights.
Nevertheless, there have been proposals for other forms of tribal government representation, some of which have been advanced by the NCAI for the purpose of developing a unified front in relationships with the federal government. One proposal is to create by act of Congress a tribal commission to advise the Congress and the president on important Indian issues. Another idea that has generated interest and debate is to establish by presidential order an interdepartmental council of executive branch officials and tribal leaders. Assuming that tribes will reach a consensus on issues that they generally agree upon, they might be willing to choose delegates on a regional or population-weighted basis to represent them on those matters in meetings with the executive branch and the Congress.
Before endorsing any such commission or council, it has been suggested that tribes might also want to delineate areas where they feel such a council would not tread, such as reviewing the allocation of federal funds on a regional or agency basis.
The second and third papers in this volume analyze the merits behind a legislative and/or executive branch council of tribal leaders. At its March 1993 meeting, the NCAI endorsed the concept of an Inter-Departmental Council on Indian Affairs to represent tribal interests in the executive branch. A lesser-discussed proposal, modeled in part on the BIA Reorganization Task Force, is to create a National Commission of Native American Governments that would advise both Congress and the executive branch. Legislation providing for its establishment was introduced in the 1991-92 session of Congress by Sen. Daniel K. Inouye (D-Hawaii), although it has not been reintroduced this year, primarily due to the very mixed response it received from tribal leaders.
To provide the context for these papers, the first paper reviews the history of tribal organizations that have inserted themselves into public policy debates, starting with the first truly Native American one, the now-defunct Society of American Indians in 1911. It reviews at length the structure of Indian organizations in the past few decades, including the NCAI, National Indian Youth Council, National Council on Indian Opportunity, American Indian Movement and National Tribal Chairman’s Association.
The second paper, on a congressional-executive branch panel, provides a strong counterweight to the more widely discussed notion of an executive branch council. It argues that tribes should also try to enhance their stature with the legislative branch, especially because of its oversight role in ensuring that the executive branch adequately meets Indian needs. This paper also cites the recent shift in tribal emphasis from the judicial branch to the legislative branch, and notes the increasing interest of tribes in protecting their interests in legislation that is designed to help U.S. citizens generally, and not Indians in particular. The third paper, on an executive branch council, provides many examples of its potential structure and usefulness.
These papers are being published to coincide with the 50th annual National Congress of American Indians convention. They are demonstration papers decided on by the Governance Task Force of the National Indian Policy Center. It is hoped that they will spur debate among Indian leaders about the effectiveness of their present representation in policy decisions in Washington, and the pros and cons of alternative proposals. Since time would be needed to work out any new initiative, these papers are intended to be reviewed on a timely basis and hopefully lead to further discussion within tribes and among tribal leaders.
HISTORICAL BACKGROUND OF THE ORGANIZATION
OF INDIAN ADVOCACY AND REPRESENTATION
Written By: Charles A. Trimble, President
Red Willow Institute, Omaha, Nebraska
(Mr. Trimble was NCAI executive director from 1972-78.)
For The National Indian Policy Center
HISTORICAL BACKGROUND OF THE ORGANIZATION
OF INDIAN ADVOCACY AND REPRESENTATION
TABLE OF CONTENTS
II.HISTORICAL BACKGROUND OF INDIAN ADVOCACY
AND REPRESENTATION 2
Time Line: Indian Rights Advocacy and Representation
Over the Years 4
A. Government Manipulation of Indian Service Organizations 5
B. History of Indian Organizations 6
1.The National Indian Youth Council 7
2.The American Indian Movement 8
3.The National Congress of American Indians 8
4.The National Council on Indian Opportunity 10
5.The National Tribal Chairman’s Association 16
6. Discord in Indian Country: The 1972 Trail of Broken Treaties 18
7.NTCA Loses Support 20
8.The United Effort Trust 21
C. Efforts to Improve Federal-Indian Relations 22
III.THE PROPOSED TRIBAL-FEDERAL INTER-DEPARTMENTAL
COUNCIL ON INDIAN AFFAIRS AND NATIONAL NATIVE
AMERICAN ADVISORY COMMISSION 26
APPENDIX: CONTEMPORARY ORGANIZATIONS OF INDIAN REPRESENTATION 31
In considering ways to improve the tribal-federal relationship through more effective participation, Indian leaders should keep in mind one of the strengths of Indian political leadership so astutely described by Felix Cohen, the late Native rights scholar:
1. Here was an idea that, however it might have shocked Plato or Aristotle or Machiavelli, was not strange to the Cherokee chiefs. For they, like the chiefs of many other Indian tribes, would again and again refuse to make decisions for their people until the decision had been thoroughly thrashed out in the councils of the people and approved by majority, or, more commonly, by unanimous agreement. This characteristic of Indian leadership, often so annoying to white administrators who want swift decisions from Indian leaders, has been a sustaining source of strength to Indian democracy.
They might also take heed of the observation of noted Indian legal scholar Sam Deloria:
Most Washington bureaucrats would love nothing better than to not have to talk to tribes at all, and to just go to some weekly luncheon meeting with local Indians in Washington and call it `Indian consultation.’
These observations provide two examples of the differences between how the tribes and the federal government see the government-to- government relationship and the consultation process of implementing it.
This paper presents an historical backdrop against which the proposed tribal-federal Inter-Departmental Council on Indian Affairs and the proposed National Native American Advisory Commission can be effectively considered. By reviewing past efforts at improving federal-tribal relations, mistakes that have thwarted these efforts in the past can be avoided.
II. HISTORICAL BACKGROUND OF INDIAN ADVOCACY AND REPRESENTATION
Throughout the history of the New World, there have been many who, for reasons of humanity and justice, as well as proselytism, or political and strategic advantage, have organized and advocated the cause of human rights and welfare for Native Americans.
Even in the earliest days of brutal Spanish conquest and subjugation in the New World, the likes of Friars Antonio de Montesinos and Bartolomeo de las Casas preached against the inhumane treatment of aboriginal peoples. At the University of Salamanca in Spain, theology professor Fray Francisco Vitorio delivered dissertations on the doctrine of indigenous peoples’ rights by reason of their humanity, including the right to own land and property. 2 This doctrine was given support in the 1537 Papal Bull Sublimis Deus of Pope Paul III which, according to Felix Cohen, helped form the legal basis of Indian rights. 3
In colonial times, settlers consulted with Indians not only to insure their safety, but to forge alliances in the international competition for a foothold in the New World. According to Smithsonian historian Herman Viola, “Not until the colonial powers recognized the value of Indian friendship and support did the delegations in the true sense become an established method of conducting business with the peoples of the New World.” 4 The growth and decline of these ties have generally corresponded with historical periods of threat to or actions against the tribes. For example, during the Indian Wars period between 1860 and 1890, some 20 organizations were in operation, many of them joined as a network. Referred to as “reformers,” most of the organizations were church-affiliated, and many leaders who had been part of anti- slavery movements. 5
Although their intentions were for the most part good, these groups rarely consulted with Indians. Their positions were based on their own religious and political considerations. They felt that Christianity held the key to “civilization” and assimilation as a means of saving the Indians. On the political and economic side, they held that the key was individual ownership of land, a concept that was a basic part of their American heritage. 6
Perhaps the best summation of the effectiveness of these friends of Indians was given by noted historian George Hyde:
It would be unfair to say that these Eastern friends of Indians did not accomplish much good by their strenuous efforts. Yet as a rule when their plans benefitted the Indians in any way it was more by accident than by design, for these people did not understand Indians, and usually they were quite incapable of judging what would help the Indians and what would injure him. These good men and women, indeed, mistook their lively interest in the Indian for deep understanding and imagined that they were holding out hands in help when usually they were only meddling in matters beyond their range of comprehension. “The Indian tribe,” they said, “dwarfs and blights the family; the tribal system paralyzes labor; it prevents accumulation of property for the children; it cuts the nerve of individual effort. And Congress, impressed by this high-sounding nonsense, passed a bill outlawing chiefs and tribes.”
True to Hyde’s characterization of them, many of the organizations, including the Indian Rights Association, the Women’s National Indian Association, and the Board of Commissioners, thus supported such legislation as the General Allotment Act of 1887, 7 which accelerated the breaking up of tribal holdings and alienated much of their homelands.
Time Line: Indian Rights Advocacy and Representation Over the Years
1820 American Society for Promoting Civilization and General Improvement of the Indian Tribes
1828 Board for the Emigration, Preservation and Improvement of the Aborigines (pro-Indian removal)
1860s National Indian Aid Association, Pa.
1860s The Peace Society/Universal Peace Union
1869 Board of Indian Commissioners
1870s New York Indian Peace Commission
1870-80s American Board of Missions (Protestant)
1870s American Indian Aid Association, N.Y.
1870s American Missionary Association
1870s Women’s National Indian Association (60 branches in 27 states)
1870s Indian Aid Society, New York, N.Y.
1870s Indian Hope Association, New York, N.Y.
1870s Ladies National League to Protect the Indians
1870s Massachusetts Indian Commission
1870s The Reform League (American Anti-Slavery Society)
1870s Indian Treaty Keeping & Protective Association
1880s Indian Rights Association – Philadelphia, Pa.
1880s Lake Mohonk Conference: Conference of Friends of the Indians (annual conference on Indian affairs)
1880s Indian Citizenship Committee of Boston, Mass.
1880s National Indian Defense Association
1889 Association of American Indian Affairs
1911 Society of American Indians (All Indian)
1922 All Indian Pueblo Council
1923 American Indian Defense Association
1925 Indian Defense League of America
1934 Regional Intertribal meetings to consider Indian Reorganization Act.
1934 American Indian Federation (Indian)
1936 ARROW, Inc.
1944 National Congress of American Indians (All Indian)
1950s Governors’ Interstate Indian Commission
1955 American Indian Development, Inc.
1961 Chicago Conference (Statement of Indian Purpose)
1962 National Indian Youth Council
1968 National Council on Indian Opportunity
1968 American Indian Movement
1972 National Tribal Chairmen’s Association
1975 Council of Energy Resource Tribes
A. Government Manipulation of Indian Support Organizations
Almost as early as friends of Indians began to organize, the federal government began the practice of organizing public forces to oppose or undermine the positions of Indian advocates.
An early example of this strategy was the formation in 1828 of the Board for the Emigration, Preservation and Improvement of the Aborigines (hereon referred to as the Indian Bureau) to support the Indian removal policies of President Andrew Jackson, and to counter the missionary groups that rose in opposition to the treatment of Indians in the Southeast. The board, which was composed largely of clergymen, carried forth Jackson’s claim that his removal policy was humanitarian, “to preserve the Indians from complete degradation and to enable them to improve and civilize themselves outside the contact with the whites.” 8
Until recent years, perhaps the most insidious example of government mobilization and manipulation of private organizations was the 1920s Pueblo fight against the notorious Bursum Bill, which threatened to alienate much of their lands and to curtail their religious rights. As John Collier described it:
The Indian Bureau controlled ramifications of influence very far reaching. Through the Home Mission Boards it lined up the protestant denominations in blanket apologetic acclaim for the Bureau and Indian System. It immobilized the Franciscan order, which in 1922 had gone into action for and with the Pueblos. By 1924 it had split the General Federation of Women’s Clubs wide open… and had annexed the Federation’s Indian Committee to its own cause, although some of the State Federations battled on. It swung the Board of Indian Commissioners behind itself. The Bureau financed a competing Bureau-controlled Council of All the New Mexico Pueblos against the Indians’ own All Indian Pueblo Council. 9
The Pueblos were ultimately victorious in defeating the Bursum Bill, although in the process they had to endure indignities of government tactics that included release of documents depicting their religious practices as hedonistic and pornographic, and smearing the Pueblo’s non-Indian advocates, in Collier’s words, as “agents of Moscow.”
The most recent examples of government intervention in intertribal politics involved the National Council on Indian Opportunity in the early 1970s. Described later in this report, this case and the case of the National Tribal Chairman’s Association illustrate the pattern of federal government intervention in Indian politics to secure an amenable Indian response to predetermined policy.
B. History of Indian Organizations
Although there have been many Indian-interest organizations over the years, the first national one controlled by Native American people was the Society of American Indians in the early 1900s. The leaders of the SAI were educated Indian men, including doctors, lawyers, ministers, anthropologists, and bureaucrats. The group generally embraced the reform ideals of the time. According to Stephen Cornell, “They had been schooled — formally or not — in the ideas of the Progressive Era.” 10
The SAI organization was not politically effective, but rather philosophical in nature. Vine Deloria, Jr. blames the SAI’s demise in part on the members’ “basic inability to proceed beyond the confines of tribal existence to a conception of nationalism.” 11 The SAI experienced problems not unlike those of Indian organizations today:
Within the Society itself a growing factionalism was evident as early as 1915, with the membership divided over a variety of issues, including the role of the BIA (some were BIA employees), peyotism, and the importance of the tribe. Gradually the organization lost its sense of purpose and its members fell to bickering. By the mid-1920s, well past its brief heyday, it had disappeared. 12
Up to the Indian New Deal era in the mid-1930s, there were significant intertribal or “supratribal” efforts, organized on an ad hoc basis to fight specific battles against unacceptable policy, such as the 1920s All Indian Pueblo Council alliance with non- Indian groups to fight the Bursum Bill. Following the introduction of the Indian Reorganization Act of 1934, regional intertribal meetings were convened by the BIA to brief tribes on the implications of the legislation, and to build support for the tribal referenda on whether to adopt the IRA form of government.
There was no national Indian intertribal organization until the formation of the National Congress of American Indians in 1944. From 1944 to the early 1960s, there were no other Indian movements of any significance, although there was considerable intertribal organizing at the regional levels, in part to form political caucuses within NCAI.
In the mid 1950s, American Indian Development, Inc. was established as a “privately financed project in citizenship education.” 13 By 1957, AID had set up summer workshops that offered courses in contemporary Indian affairs for Indian college students. These workshops brought together promising young Indian leaders from tribes across the country, and provided them with the basis for careers in tribal and national Indian affairs. This new network of young Indian leaders would have a significant impact on NCAI and on national Indian politics for many years.
1. The National Indian Youth Council
In 1963, the National Indian Youth Council was formed by a group of younger college-trained Indians who had organized following the Chicago Indian Conference of 1961. Several founding leaders of the NIYC were products of the AID workshops, and a number were members of NCAI. The NIYC was a more activist organization than NCAI, and which was described by Deloria as the Student Non-Violent Coordinating Committee of Indian organizations. Of the NIYC, Cornell correctly observed, “For them what was faulty in Indian- White relations included much of established Indian leadership.” Today, NIYC continues as a small non-profit group based in Albuquerque and is known for its voter registration work.
In the 1960s, massive new funds provided by Great Society programs attracted many new Indian advocates to the nation’s capital. This resulted in the proliferation of new organizations representing virtually every facet of Indian rights, tribal governance, professional disciplines, and Indian life. New organizations also were formed based on ideological grounds, but generally died out as soon as the youthful revolutionary fervor dissipated. Nevertheless, many new organizations persisted amid the availability of funds from federal and foundation sources. By the mid 1970s, there were 30 national Indian organizations.
2. The American Indian Movement
The American Indian Movement claims to have no official membership, no democratic organizational structure, or corporate attributes besides a logo. But it must be considered an Indian advocacy organization. AIM has had one of the greatest impacts on Indian affairs in modern Indian history. Formed in Minneapolis in 1966, AIM was initially made up of urban Indians. However, its greatest political impact was at the local level on the Indian reservations among the more traditional people, many of whom saw it as a new warrior society.
3. The National Congress of American Indians
Although the NCAI is in every sense of the term an “Indian organization,” its formation was not at first a tribal initiative. John Collier of the Bureau of Indian Affairs strongly encouraged its formation in the waning days of his tenure there. Collier could see the end of the era of the Indian New Deal, which was already in decline at the start of World War II. He may have foreseen as well a new onslaught on Indian lands and resources in a new age of growth and expansion in post-war America. For whatever reason, he authorized BIA support for a team of Indian men to meet with Indian people around the country to promote the need for a national Indian political organization. From this effort the NCAI was formed on Nov. 15, 1944. 14
D’Arcy McNickle, a member of the Flathead tribes and one of the founders of NCAI, has been heard to relate that on the evening before that first convention at the Cosmopolitan Hotel in Denver, Colo., he and his Indian colleagues sat anxiously on the mezzanine. They wondered if ten Indian delegates, or 100, or 1,000 would come to the constitutional convention. . . or none at all. As the first obviously Indian delegate, a Paiute, entered the hotel, the planners rushed to the door to fall on the first man to make the dream come true. 15
Cornell saw the NCAI as “organizationally and conceptually embracing both an emergent commonality of interests and the distinct tribal identities the Indian world comprised.” It was the first national Indian organization to link the tribes to national policy-making bodies, bypassing the Bureau of Indian Affairs and Interior Department. “With the NCAI, Indians found something close to a national political voice.” 16
This was not to say that Indian opinion was always united in NCAI. From the outset, there was disagreement over the organization’s favorable attitude toward the Indian Reorganization Act, and in the early years of termination policy development, some tribal leaders within NCAI’s ranks supported that policy.
From the beginning, NCAI explicitly embraced both Indian individuals and tribal groups, including any “Indian tribe, band or community” that wished to join. Tribal membership in the organization has included federally and non-federally recognized tribal groups, although the NCAI Credentials Committee has required such stringent proof of tribal integrity and representation that some non-recognized groups have been turned away. Nevertheless, in the mid 1970s, while NCAI was being criticized for not including non-federally recognized tribes, nearly 25 of them were on its official membership roll.
NCAI has also been criticized for not allowing urban Indian communities to be represented in NCAI as organizations with voting rights on the same basis as member tribes. Seeking to address the situation, Deloria devised two optional provisions for amending NCAI’s constitution to recognize urban Indian groups. However, the 1970 convention, at which the amendments were to be considered, was disrupted by urban militant groups, which set back the convention agenda to where the options could not be debated.
NCAI’s growth and decline has tended to reflect current problems and issues. According to Deloria, who served as executive director of the organization for several years in the 1960s, “membership fluctuates in the NCAI according to the urgency of national issues affecting member tribes.” 17 This trend was evident in 1970-71 during the campaign for legislation for an Alaska Native Lands Claims Settlement, when Alaska Native group membership was strong. However, following the passage of that legislation, Alaska Native membership and participation in NCAI fell off sharply.
Despite changes in membership and leadership, NCAI has been consistent in defending tribal sovereignty and treaty rights, preserving Indian cultures, protecting tribal resources and human and civil rights, and developing individual potential. As part of the research sponsored by the American Indian Policy Review Commission in 1976, NCAI’s resolutions and positions were collected and summarized; they told a story of consistency and leadership. On occasion, mismanagement and arrogance on the part of NCAI executive staff has turned off some tribal leaders who pulled their tribes out of NCAI. Three such occasions led to near-bankruptcy and threatened the organization itself. Nevertheless, the NCAI has endured.
4. The National Council on Indian Opportunity
The National Council on Indian Opportunity was created by presidential executive order on March 6, 1968, and ratified by Congress two years later. It was one response of the Johnson Administration to increasing demands of tribal leaders to participate in the formulation of policies and programs for their reservations. However, nothing was done to activate the NCIO until well into the Nixon presidency.
As provided in the executive order, the vice president was to chair the council, and the executive’s members would include the secretaries of Interior, Commerce, Agriculture, Health, Education and Welfare, and Housing and Urban Development, plus the director of the Office of Economic Opportunity. In 1970, the attorney general was added to membership on the council.
Originally, the council provided for six Indian members to be selected by the president from different parts of the country. The original six were Roger Jourdain, chairman of Red Lake Chippewa; William Hensley, an Inupiat and a member of the Alaska state legislature; Wendell Chino, chairman of the Mescalero Apache; Cato Valandra, of the Rosebud Sioux; Raymond Nakai, president of the Navajo Tribe; and LaDonna Harris, Comanche from Oklahoma. In 1970, Indian membership on the council was increased to seven. Six of the seven Indian members were John Rainer, Taos Pueblo; Frank Belvin, Chocktaw; Betty Mae Jumper, Seminole; Laura Bergt, Eskimo; Harold Schunk, Sioux; and Joe Vasquez, Apache. (The seventh Indian representative could not be identified at the time this report went to press.)
The functions of the NCIO were to see that Indians received maximum benefits of programs of the different departments of the federal government; to encourage coordination and cooperation among the government agencies in their relations with the Indians; and to suggest ways for improving such programs. The original Indian members had a much more ambitious view, however; in their first statement to the council, they saw the NCIO pursuing wide-ranging new policy and programs for Indian country. 18
The Indian members saw the NCIO’s most important role to be in assuring Indian input in national policy formulation:
Because the essential requirement of any Indian policy must be active and prior Indian consultation and input before major decisions are taken which affect Indian lives, Indian membership on the National Council on Indian Opportunity is insurance that such consultation would be sought. 19
The Indian members saw the occasion of their first meeting as momentous for those times of increasing activism on the part of certain Indian groups:
For the Indian people across the nation to know that at this moment the Vice President and Cabinet Officers are sitting in a working session with Indian leaders is to alleviate some of the cynicism and despair rife among them.
It is important to note that the creation of NCIO was strongly supported by the National Congress of American Indians, which hailed it as a new link to the highest levels of the administration; 20 a few years later the two organizations would be locked in a bitter struggle.
Outside Washington, Indians accepted the NCIO with mixed feelings. Some saw it as just another government bureaucracy standing between the tribes and their trustee. Many saw it as a government-front organization controlled by white officials and “rubber stamped” by its Indian members, who would be unable to accomplish anything of significance. However, especially with NCAI in a state of financial and internal political disarray, tribal leaders visiting Washington found the NCIO a new and more potent advocate in dealing with the federal bureaucracy. 21
The council got off to a strong start carrying the list of President Nixon’s legislative proposals to Indian leaders in a series of meetings. At the first meetings, Indians were asked to provide their reactions and suggestions. The council later held several hearings across the country on such issues as the condition of urban Indians and on Indian education. It also directed several key studies on important issues such as the legal title to submarginal lands by several Indian tribes.
Headquartered in the new Executive Office Building in Washington, the NCIO gave the appearances of power and direct access to the White House. However, according to attorney Harold Gross, who was then on the NCIO staff, “The NCIO path to the President was uncertain at best, depending on low-ranking staff without decision- making authority on one end, and wavering degrees of vice- presidential influence and unwillingness to act on the other.” 22
The “direct approach” to the president, according to Gross, was with White House Special Assistant Bradley Patterson and minority affairs specialist Leonard Garment, who reported directly to the President’s domestic affairs advisor, John Ehrlichman. Another key player in the White House connection was a bright young attorney on Garment’s staff, Bobbie Greene Kilberg. This team provided the momentum for most of Nixon’s Indian policy initiatives, with information support from NCIO staff. 23
The Indian members of NCIO, hoping in the beginning to “sit as equals with members of the president’s Cabinet in overseeing Indian affairs and in recommending federal Indian policy,” found the situation somewhat different. The full council was seldom, if ever, assembled. Any power claimed by NCIO came from its relations with the vice president’s office, and its actions were controlled by vice presidential staff, not the members of the council.
Heading up the NCIO staff was its executive director, Robert Robertson, a former aide to Nevada Gov. Paul Laxalt. Robertson had worked hard for the election of the Nixon-Agnew ticket in 1968, and was rewarded with the directorship of NCIO. 24 Robertson got his baptism-by-fire in Indian affairs as the administration’s representative following the occupation by Indian activists of Alcatraz Island in November, 1969. Three years later, in November, 1972, he faced many of the same “urban militants,” as he described them, in what was his ultimate undoing as executive director of NCIO — the occupation and destruction of the BIA’s Washington headquarters by the Trail of Broken Treaties marchers.
Indian journalist Richard LaCourse, one of the most astute chroniclers of Indian events of the 1970s, described the transformation of the council from lofty, superadvocate to insidious political instrument that brought much of Indian country down on the organization and sunk it:
As Robertson’s personal attitudes hardened during the first two years at his post, the role of NCIO changed. During his first several months, two mutually exclusive and competing concepts of the functions of the NCIO staff battled for preemience. The first suggested that the NCIO staff was subordinate to the presidentially appointed Council, in its visualized role as ombudsman on behalf of the national Indian community. This was in keeping with the original view that the Council was to be a mechanism whereby broadly representative, national Indian leadership could engage in eyeball-to-eyeball discussion with those Cabinet officers responsible for the administration of programs serving Indians. The Vice President was to preside over this Council ex officio.
The second concept, brought in by Robertson, was that the NCIO staff was simply an extension of the Vice President’s personal staff, to whom it was responsible, and that the role of the NCIO was to secure favorable publicity for the White House and the Vice President in the area of Indian Affairs by performing those tasks within its mandate which did not conflict with existing administration policy.
Even while the resolution of this conceptual conflict was unclear, Robertson ran a tight ship with respect to his all-Indian staff. All correspondence and decision-making had to be cleared not only through Robertson himself, but through C.D. Ward, domestic affairs advisor on the Vice President’s personal staff, whom Robertson regarded as his immediate supervisor. Those Indian staff members who did not share his organizational concept or who showed any inclination to “activism” found themselves eventually without duties to perform, and either resigned or transferred.
By the time of the House hearings on the [Trail of Broken Treaties] Caravan seizure [of the BIA headquarters], Robertson had no doubts as to where his loyalties lay. “I work for the Vice President,” he told the subcommittee. 25
Outside the actual administration of the NCIO, Robertson became entangled in a political fight involving the two major intertribal organizations. The actions of the NCIO favoring the fledgling National Tribal Chairman’s Association and subverting the older, established National Congress of American Indians drove a wedge between them and prevented any semblance of unity during an historic era of opportunity and strife in which Indian unity was vital.
At the time NCAI was “on the ropes,” as its embattled executive director, Leo Vocu, described, although the 1971 convention issue of the NCAI Sentinel optimistically proclaimed, “The survival and revival of NCAI as a vital and significant presence in Indian affairs boggled odds people were placing against it in early spring.”
But this was clearly a case of whistling in the dark. Following a year of gross mismanagement and profligacy, the organization was in deep financial trouble. Executive Director Vocu, of the Oglala Sioux Tribe and a long-time member of NCAI, was literally drafted and given the onerous job of trying to save the organization. Many tribal leaders, turned off by the previous NCAI administration’s mismanagement and arrogance, pulled their tribal membership, drastically reducing the organization’s revenues. The depleted staff struggled to keep up with the preponderance of new legislation introduced in the waning years of the Johnson administration and the early years of the Nixon Administration.
In addition, the proliferation of new Indian special-interest organizations was luring away NCAI leadership in the areas of health, education, and economic development. Whereas, in the past, the annual NCAI convention was the major annual event in Indian politics, conferences were now being held throughout the year by new, better-funded Indian organizations. The well-funded NCIO, with better entree to higher levels in the federal departments, was replacing NCAI as the base of operation for many tribal delegations coming to the nation’s capital.
The future looked bleak for NCAI, and many Indian affairs observers gave little odds that the organization would even survive the year. A number of important tribal leaders maintained that the NCAI had outlived its need anyway, and that its seemingly imminent demise would be a merciful end.
The NCIO, which used the forums of NCAI conventions and meetings to establish its credibility among the tribes, now disdained the struggling organization. NCIO’s Robertson was now looking to the development of a powerful Indian partner in the National Tribal Chairmen’s Association, which was being organized in the early months of 1971.
5. The National Tribal Chairman’s Association
The National Tribal Chairman’s Association was officially formed in July of 1971. The purposes outlined in the constitution and by- laws of the NTCA were to:
Improve consultation between the U.S. government and federally recognized Indians.
Assist in directing federal programs and funds for federally recognized Indians.
Approve local and national Indian policies before they are implemented by the federal, state and local governments.
Demand that Indians receive their fair share of all federally funded programs; to ensure continuance of the federal trust relationship.
Demand that every federal agency recognize Indians for whom the federal government has trust responsibility.
Employ treaty rights and privileges for promotion and protection of the human and natural resources of Indian reservations or groups.
Cultivate relationships among Indian reservations.
Demand that consultation become a fact.
Support and complement the National Congress of American Indians; and for any other purposes deemed proper and necessary. 26
It is important to note that the provision “to support and complement the National Congress of American Indians” was included in the NTCA constitution as a compromise to get the support of NCAI loyalists.
Tribal leaders broached the concept of a new national organization in a specially called meeting of tribal leaders held in Billings, Mont., in 1970. Introduced by the delegation from the Sioux tribes, the concept had support mostly from tribes in Oklahoma, New Mexico, and the Great Lakes region. Delegates from several of the Northwest tribes, historically the NCAI’s strongest loyalists, questioned the relationship the new organization would have to NCAI. The promoters of the new organization obviously saw it as replacing the NCAI and generally brushed the question aside, but the Northwest tribes and several from the Southwest persisted.
The meeting ended without a mandate for a new organization, largely because of the question of its relationship to and its impact on NCAI, but further meetings were scheduled to proceed with the formation.
Meanwhile, in the offices of NCIO an idea was spawned to sponsor a massive national meeting of tribal leaders to cultivate support. Since a major stimulus for the new organization was concern on the part of some tribal leaders over the emerging strength of the urban-centered Indian militants, NCIO director Robertson saw an opportunity to bolster his fight against them with a strong new ally representing elected tribal leadership. A national conference, featuring as a drawing card an address by the vice president, would assure a large attendance and help set the stage for an intertribal mandate for the new organization. As an additional incentive to assure a large attendance, NCIO offered to cover the travel expenses of all invited tribal leaders.
In a bizarre twist, it was decided that the NCAI would have to be used to sponsor that meeting, for although federal funds could be gotten from the Office of Economic Opportunity for preparation and conduct of the meeting, an existing OEO program would be needed through which to channel the federal funds; NCAI had such a program. In addition, NCAI’s credibility, although stretched thin by recent internal discord, was needed to give the conference legitimacy. Desperate for any financial support it could get, NCAI agreed to host the meeting in Kansas City, even with the stipulation that it would merely stand by in deference to the agenda prepared by NCIO and tribal leaders who were promoting the formation of new organization.
Although the meeting was called ostensibly for consultation on new Nixon administration policy, there were some who had called for a ballot in which tribal leaders would vote on whether to proceed with establishing a new organization, then being referred to as the National Tribal Chairman’s Association. It was felt that, in starring the NTCA and generally ignoring the NCAI in the conference agenda, and promoting the new organization in regional caucuses, the ballot would result in a resounding mandate for the new organization. However, after heated debate prior to the ballot, mostly over the relationship of the new organization to the NCAI, the initiative was narrowly defeated.
Nevertheless, the promoters felt that they had sufficient tribal backing to move forward with their plans. Their next meeting was in Pierre, S.D., for drafting the constitution and bylaws, then in Albuquerque, N.M., for ratifying the constitution and forming the NTCA. Throughout the subsequent meetings, however, NCAI loyalists applied sufficient pressure to force a provision into the constitution “to supplement and support the National Congress of American Indians.” But history would show that the major promoters of the organization had no intention of upholding that provision. As host to the fledgling NTCA in its own plush offices for the first years, NCIO’s Robertson would see to that.
The NTCA viewed itself as the sole tribal spokesman in the tribal- federal relationship, a role some saw as slipping away from tribal leaders and into the hands of “urban Indian militants.” This fear was initially fed in the tumultuous NCAI convention of 1969, which elected Bruce Wilkie executive director. Wilkie, a young Makah leader, was a co-founder of the then-militant National Indian Youth Council. In addition, more and more young activists were emerging in NCAI, as tribal delegates and as members of key committees.
The NTCA leaders feared the increasing influence of certain young Indian activists deputies in the BIA as well. With instructions from President Nixon to “shake up the bureau and shake it up good,” new Commissioner Louis R. Bruce brought in several young Indian deputies to modify BIA’s relationship to its constituencies. 27 Among these were leaders from urban Indian centers, and although they were not directly involved in militant organizations, NTCA leaders perceived them as glib and insensitive to the tribes.
Old-line bureaucrats in the BIA and other agencies welcomed the advent of NTCA, seeing it as a means of consulting Indians without having to face the increasingly strident criticism of Indian militants. They also saw the new reformers in the BIA as threatening their own power base, and NTCA as a strong ally to help curb the excesses they saw in the activists.
6. Discord in Indian Country: The 1972 Trail of Broken Treaties
In the late 1960s and early 1970s, NCAI conventions and conferences increasingly came under attack from Indian activists, who often disrupted the sessions and railed against the NCAI leaders as “sell-outs” for not taking more militant stands against the federal government. The NCAI conventions were fully democratic functions, and the floor was generally open to any Indian individual who paid modest membership dues. Many of the new activists used this forum to air their radical views, often not bothering to pay membership dues or register for the conventions. Some tribal leaders responded to this by viewing NCAI as out of control and surrendering itself to the urban militants.
This trend provided impetus for the formation of the NTCA. With the militants’ emergence, plus the proliferation of new Indian organizations supported by federal and foundation funds, some tribal leaders saw NTCA as the answer to the problem of who speaks for the tribes.
However, the prevailing attitude among the core of NTCA founders was that other Indian organizations, including the older and larger NCAI, were interlopers that should be discredited or destroyed. They held this view despite NTCA’s constitutional provision to “supplement and support” NCAI.
The first great challenge that the young NTCA faced was the seizure and trashing of BIA headquarters during the Trail of Broken Treaties march in early Nov., 1972. Until that time, NTCA was busy organizing and introducing itself around the city. Robertson appeared to be in no great hurry to help get NTCA organized and into its own facilities, even though they were well funded from the start. While NTCA was in NCIO’s offices and dependent on NCIO staff, it was felt that Robertson would have had access to all of their communications and activities.
As the Trail of Broken Treaties caravan was winding its way across the country, NCAI convened two meetings of Indian organizations and federal agencies to “enlist their cooperation, to assure the orderly conduct of the religious and traditional observances which (the caravan) intended, ostensibly, to conduct.” 28 Neither NTCA nor NCIO took part in either meeting.
During the occupation, NCAI devised plans for empaneling a board of Indian leaders “to assess the damage of the upheaval and to make constructive plans for the future of Indian country.” 29 This effort, to be called the Impact Survey Team, would be broadly representative of Indian country, including Indian organizations representing the spectrum of political and special interests. NTCA declined to join in the planning, and subsequently ignored NCAI’s public invitation to them to join the Impact Survey Team. According to LaCourse, “Robertson’s reaction to the Impact Survey Team proposal was to urge the tribal leaders at the earliest possible date to convene and make their own recommendations on the reform of Indian administration to the President.”
NTCA leadership was mustered in the NCIO office during the entire week of the TBT occupation, and Robertson, supplying information and communication, was clearly involved in NTCA decisions and in preparing its public statements. As opposed to NCAI’s more conciliatory efforts to prevent potentially disastrous police intervention, the NTCA called for immediate action to remove the occupiers of the BIA, and prosecution of all caravan leaders. According to LaCourse’s account of the incidents, “NTCA’s public statements were an accurate index of the Robertson philosophy.” 30
A direct result of the occupation was the establishment of the American Indian Policy Review Commission to study the condition of Indian affairs and make recommendations to Congress for legislative and executive actions to remedy the problems. The AIPRC was seen by many as a modern version of the “Meriam Report,” the 1928 study that set the stage for the Indian New Deal era that followed. Although most of Indian country supported AIPRC, NTCA opposed it, principally because the commission included representatives of urban Indians and non-recognized tribal groups.
7. NTCA Loses Support
Hard feelings between NCAI and NTCA leaders, solidified during this time, would separate the two organizations for the remainder of NTCA’s existence. Attitudes and actions against NCAI on the part of NTCA leaders resulted in internal strife that would eventually destroy NTCA.
Immediately after the occupation, it was alleged that Robertson attempted to retaliate against those Indian organizations he felt were in sympathy with the militants, or that were not appropriately against them. This, to Robertson, apparently included NCAI, because he subsequently prevailed upon the director of the Office of Economic Opportunity to cut off OEO funds to NCAI’s economic development program. NCAI leaders responded by lobbying Congress to instead cut appropriations that other federal agencies were channeling to NCIO for its administration.
As it turned out, NCAI continued to be supported by different federal programs because of its ties with tribal organizations. With greatly reduced operating funds and its base of power depleted by the political downfall of its chairman, Vice President Spiro Agnew, NCIO closed its operations within a year.
During that final year, although a hard core of NTCA leaders continued their animosity toward NCAI, more moderate leaders sought conciliation with NCAI and other organizations. This resulted in increased cooperation and was highlighted by one particular joint effort that proved successful, although short-lived, the United Effort Trust.
8. The United Effort Trust
In 1977, in reaction to what was seen as a “white backlash,” the United Effort Trust was formed, more as a campaign than an organization. The UET was funded by contributions from tribes and church groups to concentrate on the defeat of certain anti-tribal legislation introduced in the 95th Congress at the behest of anti- tribal organizations at the state and national levels. These “backlash” bills, introduced by a bipartisan group of Northwest and Midwest lawmakers, called for everything from termination of the federal-tribal trust relationship to abrogation of all Indian treaties, to abolishment of hunting and fishing rights, and state jurisdiction on Indian lands.
The backlash was led by the Interstate Congress for Equal Rights and Responsibilities, which was made up of state-level anti-tribal organizations. “Backlash” reflected resentment among rural fishing and agricultural interests over court victories by Northwest and Great Lakes tribes for fishing rights, plus land restoration settlements in Maine, New Mexico and Washington. The backlash forces claimed this was the start of “giving America back to the Indians.”
The UET, headquartered in the NCAI offices, lobbied against the legislation, and worked to present the Indian side in meetings of the National Association of Counties and the National Association of State Legislatures. The UET effort successfully ensured the launch of the Commission on State-Tribal Relations, which provided a forum for discussing Indian-white relations. In addition, the UET worked among church groups and women’s organizations to secure their opposition to unfavorable legislation.
As part of the UET organizing effort, a meeting was held at the Bottle Hollow Resort on the Uintah-Ouray Reservation in Utah, which brought together representatives from all national Indian organizations including NCAI, NTCA, American Indian Movement, National Indian Youth Council, and as many special interest and regional intertribal organizations as possible. The UET effort briefed the organizations on the strategy it had developed and secured their commitment to work in a cooperative campaign to defeat the bills and enlighten the general public through the mass media and church organizations.
The backlash threat subsided when several of the congressional sponsors of the anti-tribal legislation were defeated in their campaigns for reelection, due in no small part to effective tribal campaigns at the state level. The UET was disbanded when much of the funds committed by the tribes were not delivered, and it appeared that the “backlash” battle was won anyway, at least for the time being.
C. Efforts to Improve Federal-Indian Relations
The improvement of federal-Indian relations pursuant to the constitutional government-to-government doctrine has been a goal of Indians leaders and federal officials for many years. There have been several efforts to involve Indian leadership in national policy development as members of ad hoc commissions and task forces, and ongoing advisory councils, the most notable of which in recent times have included:
The National Advisory Council on Indian Education, which is based at the U.S. Department of Education, was authorized by the 1972 Indian Education Act to guide federal Indian education policies. It acts as a presidentially appointed board of Indian education specialists.
The American Indian Policy Review Commission was a congressionally sponsored two-year research project that included 11 task forces that each conducted two-year studies. Their recommendations were submitted to Congress in 1977. A more detailed description of its work is given below.
The National Indian Health Board consists of 12 regional Indian health program directors selected by reservation-based community leaders. It is a non-profit organization funded by the Indian Health Service to consult with it as needed.
The Presidential Commission on Indian Reservation Economies was created in 1984 by President Reagan and directed by the assistant secretary of Interior for Indian affairs. It submitted a report to the president in 1988.
The Interior Department/Tribal Task Force on BIA Reorganization was established in 1991 in response to NCAI initiative. Congress directed that the task force be selected by tribes and appointed by the secretary on a regional basis to guide the BIA reorganization. Other, more ambitious arrangements for Indian representation in Washington have been studied as part of the mandated work of the American Indian Policy Review Commission from 1975-76. 31 These included:
Election of an Indian congressional delegation.
A union of Indian nations.
An Indian board of representatives or commissioners.
Recognition of tribal governments in a manner similar to the trust relations between Micronesia and the United States.
These were studied, albeit cursorily, by the AIPRC Task Force on Federal Administration, which decided not to make a recommendation on the issue.
In the past, tribal leaders have also sought to establish a White House Office of Indian Affairs, and even a Cabinet-level Office of Indian Affairs. However, with the exception of a brief period during the Nixon Administration, Indian affairs in the White House has been generally relegated to liaison desks in such offices as the Carter Administration’s Small Communities and Rural Development. President Bush assigned Indian-affairs relations to the White House Office of Intergovernmental Affairs, 32 but Indian organizations concluded that the White House staff with these responsibilities was so low-ranking as to be largely ceremonial.
Among the national Indian leadership, there has been considerable thought and effort given to improving the tribal side of the consultation process. The National Tribal Chairman’s Association, as an organization made up of principal executive officers of the federally recognized Indian tribes, was established, among other reasons, to improve consultation on national Indian policy.
Later, during the internecine struggle between NTCA and NCAI, Indian leaders who saw a need for greater unity and improved national representation proposed a consortium of Indian organizations. Put forth by Navajo President Peter MacDonald, the concept of a Native American Treaty Rights Organization was to include the NCAI, NTCA, the Navajo Tribe, the National Indian Youth Council, the American Indian Movement, the Alaska Federation of Natives, and Americans for Indian Opportunity. This would have been a curious mix of two national constituency organizations: one tribe, Navajo; one special-interest organization, the National Indian Youth Council; a self-described “non-organization,” AIM; one regional intertribal organization, AFN; and a private non-profit organization, AIO.
NTCA rejected the NATRO concept out of hand. NCAI also declined to support the idea after some consideration. In reality, the NATRO concept was for a national entity that would transcend each of the organizations in the coalition. Accordingly, NCAI would be only one vote in NATRO’s decisions to endorse or oppose various national Indian positions. To NCAI leaders, this meant that the consensus positions arrived at NCAI conventions would be subject to veto. If this were the case, they reasoned, why would any tribe want to go to the expense of attending a convention, working out consensus and adopting resolutions, only to have them submitted to a higher authority for endorsement or veto?
Finally, although the proposal was never formally made, some Indian leaders had discussed the possibility of NTCA and NCAI coming together as a Congress of Indian America. The NCAI with its weighted-vote structure, and representing a wide constituency of federally recognized tribes, non-federally recognized tribal groups, and special-interest Indian constituency organizations, would be like the House of Representatives. The NTCA, with its one-member-one-vote arrangement, would serve as the Senate. Only major issues of national policy would require the endorsement of both organizations. However, that concept was never formally proposed to either group.
The Indians’ goal of a White House Office of Indian Affairs and the precedent to the proposed tribal-federal Inter-Departmental Council for Indian Affairs was almost met by the now-defunct National Council for Indian Opportunity, which, as mentioned earlier, expired without the support of tribal leaders.
III.THE PROPOSED TRIBAL-FEDERAL INTER-DEPARTMENTAL COUNCIL ON INDIAN AFFAIRS AND NATIONAL NATIVE AMERICAN ADVISORY COMMISSION
In the quest for improving government-to-government relations, the executive branch and tribal governments are motivated by different priorities. The priority of federal officials, given that there are more than 500 federally recognized tribes and communities, is for more efficient consultation. The tribes’ priority is for a better system of representation before Congress and at the highest levels possible in the executive branch.
Those Indian leaders who are now promoting the new IDCIA concept see the need for a mechanism established by presidential order that would be able to convey to the executive branch the true meaning of its government-to-government relationship with the Indian nations, and to facilitate coordination among the various departments in implementing that special relationship. Moreover, they see the need for direct Indian involvement, through the IDCIA, in developing Indian policy and overseeing programs serving Indian country pursuant to the federal trust relationship.
Similarly, some have seen a need for a National Native American Advisory Commission that would work with the congressional Indian committees to develop national Indian policy and programs through legislation and for general oversight of federal Indian programs. The commission was proposed in legislation by Sen. Daniel Inouye (D-Hawaii) in the last Congress. But the bill has not been reintroduced due to the lack of tribal support following a June 1992 hearing before the Senate Select Committee on Indian Affairs.
However, while recognizing the need for efficient mechanisms to enhance the federal-tribal relationship, tribal leaders nevertheless are generally not willing to surrender or subordinate their own rights and prerogatives as sovereign entities for the sake of more efficient government-to-government consultation. Nor are they likely to forego debate and consensus in their own forums, such as NCAI, for merely having input into a select advisory commission or council of their peers.
In addition, there are Indian constituency organizations representing special interests, including education, health, housing, economics and natural resources. These organizations also demand to be more directly represented at the highest possible levels of government in their respective areas of interest.
The IDCIA concept envisions on the federal side a secretarial-level representative from each of the Departments/Agencies within the Executive Branch including the White House. It also calls for IDCIA’s and NNAAC’s representation to be similar to that of the present Interior Department/BIA Reorganization Task Force. The apparent acceptance of the task force model on the part of tribal leaders may be misleading. That task force is probably seen by most tribal leaders as an organization to implement the consultation requirements of the government-to-government relationship only in reference to reorganizing the BIA. Most likely, it is because of the fact that it is seen as ad hoc that the task force is not seen by tribal leaders or even its own members as the sole voice of Indian tribes, as competing with or replacing NCAI and other Indian organizations, or otherwise usurping existing intertribal consensus processes. Nevertheless, if IDCIA or NNAAC were permanent entities, their relationship to and impact on NCAI would be questioned, and would likely have trouble getting widespread tribal leader support if they could not appropriately address those concerns.
These factors as well as problems with past initiatives must be taken into consideration. This presents a real challenge to the effort of establishing the proposed tribal-federal Inter- Departmental Council for Indian Affairs or a National Native American Advisory Commission.
It would appear, based on the experience of national Indian organizations over the past two decades, that the principal question to be addressed in forming an IDCIA or NNAAC is how they would relate to national Indian organizations. Even though the initiative of forming the IDCIA was born and developed in the NCAI Governance Committee, and the advisory commission concept has received some NCAI support, the following questions remain:
Will the Indian members of the IDCIA or NNAAC consider themselves the exclusive voice of Indian tribes in national Indian policy matters?
Will the federal bureaucracy, with its new IDCIA consultation process in place, see NCAI as no longer a valid intertribal voice?
Will the Congress, with its new NNAAC consultation process in place, see NCAI as no longer a valid intertribal voice?
Will this relegate NCAI to lobbying the IDCIA and the NNAAC for input into policy decisions?
What will the IDCIA’s and NNAAC’s relationship to NCAI be?
What will the IDCIA and NNAAC’s relationship to individual tribes be?
What will the IDCIA’s and NNAAC’s relationship to other Indian organizations be?
Conceptually, the IDCIA offers to improve the consultation process of the government-to-government relationship. But it does not offer an effective approach to selecting accountable Indian representation on the IDCIA or securing intertribal consensus on issues that would be discussed or negotiated in the council meetings. In light of this, and keeping in mind the NCIO/NTCA experience, consideration should be given to providing the Indian representation on the IDCIA through existing Indian organizatiosn such as NCAI.
In the case of NCAI, there are certain shortcomings that would have to be addressed, the most often-mentioned being that NCAI does not, and never has, represented all the federally recognized tribes. In addition, the process whereby NCAI develops national Indian policy positions, through committee recommendations and adaption of resolutions, has often been criticized. Normally, resolutions are not written for tribal delegates to review until just before they are presented for action. There is no opportunity for delegates to confer with their tribes to see if they support the position proposed in resolutions.
Whereas it is true that a few tribes have never joined NCAI, the vast majority have joined the organization at one time or another. As Vine Deloria, Jr. pointed out, tribes often joined the organization only when NCAI was addressing national or local issues that affected them directly. 33 However, NCAI’s appeal to all tribes to join would be bolstered by recognition of NCAI as the tribal representation of IDCIA and NNAAC, providing a process for selection and election of the representatives as well as a forum for intertribal debate and consensus-building on national Indian policy issues. There are also unresolved issues of how to bring in one of the largest tribes, the Navajo Nation, yet maintain a balance of equal representation.
Other organizations that choose not to participate in NCAI, such as the few wealthy and therefore independent tribes, do so perhaps feeling that they do not need the organization. That, of course, is a prerogative of sovereignty, and should be respected.
Because the IDCIA would primarily be concerned with enhancing government-to-government ties, problems could also arise from the NCAI leadership of the federally recognized tribes insisting that only they should have a voice in naming the Indian members to that council. However, it must be remembered that the non-federally recognized tribes as well as urban-Indian organizations are recognized for funding and services by the federal government, such as the departments of Health and Human Services and Labor. Accordingly, even though the IDCIA might include the leadership of NCAI, i.e. federally recognized tribes, the input and consensus of other Indian leaders, including those from urban-Indian populations and non-recognized tribal groups, would be included.
It is presumed here that establishment of the IDCIA and the NNAAC will involve the appropriation of federal funds for their ongoing operations. It is also presumed that NCAI, as one of the tribal representatives of the new consultation and advisory mechanisms being considered, will receive federal funds to support its selecting and electing of representatives, and securing Indian consensus for input to those consultation and advisory bodies. Based on experience with the NTCA, the question of whether or not NCAI can be federally supported and yet maintain independence of the funder must be addressed.
Finally, IDCIA and NNAAC staff must not perceive their organizations as competing with NCAI or other Indian organizations. As experienced with the NCIO, much mischief can be done by staff who might work to undermine an Indian organization, or to pit one Indian organization against another. For example, the principal founders of the NTCA claimed the status of sole voice of the Indian tribes. Virtually all its public statements and its testimony before Congress were prefaced with a preamble that the NTCA, duly made up of elected tribal leaders, was the only organization that could speak for the tribes. Despite its constitutional provision to “supplement and support the NCAI,” the NTCA from the first did not work effectively with the NCAI and other national organizations. The NCIO was quick to embrace the NTCA as the sole voice of Indian tribes apparently for their own political reasons.
Accordingly, the promoters of the IDCIA and NNAAC concepts should carefully consider the impact of the new mechanisms on NCAI and on other national Indian organizations. In fact, they should explore the extent to which NCAI could and should be involved both in the process of selecting and electing council or commission members, and in securing and providing Indian consensus in national Indian policy matters.
If history is doomed to repeat itself, Indian advocacy will still have problems under these new participatory bodies. But if the appropriate lessons have been learned, tribal interests will be advanced like never before.
APPENDIX: CONTEMPORARY ORGANIZATIONS
OF INDIAN REPRESENTATION
Special Interest Constituency
Private Nonconstituency Nonprofit programs
and legal advocates Federal Advisory
Organizations Regional Intertribal
Constituency Other National Congress of American Indians*
National Indian Youth Council (NIYC)*
Americans for Indian Opportunity (AIO)*
Native American Rights Fund (NARF) National Indian Health Board (NIHB)*
United South & Eastern Tribes
World Council of Indigenous Peoples
National Tribal Chairmen’s Assoc.*+
Council of Energy Resource Tribes
Inst. for Development of Indian Law (IDIL)
Nat’l Advisory Council on Indian Education*
Great Lakes Inter-tribal Council (GLITC)
International Indian Treaty Council (IITC)
Amer. Indian Higher Educ. Consortium
Assoc. on American Indian Affairs (AAIA)
American Indian Law Center (AILC)
National Council on Indian Opportunity*+
Minnesota Chippewa Tribes
American Indian Movement*
Nat’l Ind. Education Association (NIEA)
Indian Rights Association*
American Indian Resources Institute
United Sioux Tribes (UST)
Coalition of Indian Controlled Sch. Bds.
American Indian Lawyers Trng. Prog.
Montana Intertribal Council
Native American Nurses Association
First Nations Development Institute
Affiliated Tribes of Northwest Indians
Assoc. of American Indian Physicians
Small Tribes of Western Washington
Native American Journalists Association
Native American Bar Association
ITC of Nevada National Tribal Court
Judges Association Southern Calif.
Tribal Chairmen’s Assoc.
ITC Social Workers
All Indian Pueblo Council Housing
United Tribes of West. OK & Kansas Timber
Five Civilized Tribes
(*Mentioned in this report.+Defunct or dormant.)
1 Americanizing the Whiteman: The Legal Conscience, Selected Papers of Felix S. Cohen, edited by Lucy Kramer Cohen, Archon Books, 1970.
2 Conquest of Paradise: Christopher Columbus and the Columbian Legacy, Kirkpatrick Sale, Knopf, 1990.
3 Spanish Origin of Indian Rights, an essay in the book, The Legal Conscience Selected Papers of Felix S. Cohen, edited by Lucy Kramer Cohen, Archon Books, 1970.
4 Diplomats In Buckskins, Herman J. Viola, Smithsonian Institution Press, 1981.
5 The Reformers and the American Indian, Robert Winston Mardock, Univ. of Missouri Press, 1971.
6 Sioux Chronicle, George E. Hyde, University of Oklahoma Press, 1956.
7 24 Stat. 388, sometimes referred to as the Dawes Act.
8 Mardock, Reformers and the American Indian.
9 Indians of the Americas, John Collier, Mentor Books, 1947.
10 Statement of the Indian members of the National Council on Indian Opportunity, Washington, D.C., Jan. 20, 1970.
11 The Rise and Fall of the First Indian Movement, a review article, Vine Deloria, Jr., Historian 33, No. 4, August, 1971.
12 Cornell, Return.
13 Indians and Other Americans, Two Ways of Life Meet, Harold E. Fey and D’Arcy McNickle, Harper & Brothers, 1959.
14 The Red Man in The New World Drama, Jennings C. Wise, edited, revised and with an introduction by Vine Deloria, Jr., MacMillan, 1971.
15 NCAI Nostalgia, The Worst of Times, the Best of Times, Helen L. Peterson, NCAI Sentinel, 1971.
16 Cornell, Return.
17 Custer Died For Your Sins, Vine Deloria, Jr., Macmillan, 1969.
18 Statement of the Indian members of the National Council on Indian Opportunity, Washington, D.C., Jan. 20, 1970.
20 Testimony of NCAI Executive Director John Belindo before the House of Representatives, 1970.
21 Red Power, the American Indians’ Fight for Freedom, Alvin Josephy, McGraw-Hill, 1971.
22 The Nixon Administration: The Thunder and the Rain, Harold M. Gross, NCAI Sentinel, Winter 1971.
24 In The Caravan’s Wake: An Unstable Status Quo, Richard Lacourse, Legislative Review, special issue on the Trail of Broken Treaties, Indian Legal Information Development Service, 1972.
26 Constitution and Bylaws adopted July 12-14, 1971, Albuquerque, N.M., and signed by chairmen of 52 tribes.
27 Ibid., LaCourse, Caravan.
28 Press conference remarks of Charles E. Trimble, executive director of NCAI, Nov. 10, 1972, as reported in the Legislative Review, Indian Legal Information Development Service.
30 LaCourse, Caravan.
31 P.L. 93-580, which established the American Indian Policy Review Commission called for the commission to, among other things, “explore the feasibility of creating some form of alternative elective body for representing Indian interests at the national level of government.”
32 President Bush’s statement, “Reaffirming the Government-to-Government Relationship Between the Federal Government and Tribal Governments,” June 14, 1991.
33 The Red Man in the New World Drama, Jennings C. Wise, edited, revised and with an introduction by Vine Deloria, Jr., MacMillan, 1971.
THE PROPOSED TRIBAL-EXECUTIVE BRANCH COUNCIL
Contributions by: W. Ron Allen,
Chairman Jamestown S’Klallam Tribe
and Co-Chair, Planning Committee
for the National Indian Policy Center
Alan R. Parker, Director
National Indian Policy Center(c)
THE PROPOSED TRIBAL-CONGRESSIONAL/EXECUTIVE BRANCH COMMISSION
TABLE OF CONTENTS
II.CONGRESS IS THE LAST RESORT 35
III.SHIFT FROM THE COURTS TO CONGRESS 37
IV.TRIBAL OPPORTUNITIES IN NON-INDIAN LEGISLATION 39
V.LIMITATIONS ON THE COMMISSION’S POWERS 40
The idea of having a single group of tribal leaders formally represent the interests and concerns of all tribes in federal policy-making — executive branch and congressional — has become a more important issue for tribes as they increasingly seek to protect and advance their interests.
This paper will examine the main differences between a council established by Congress and representing tribes in both Congress and the executive branch, and a council solely representing tribes in the executive branch.
It has been suggested that a council that focused on both Congress and the executive branch may not be able to focus like a “laser beam” on the greater need of tackling the problem of dysfunctional policy-making among different executive branch agencies. On the other hand, the main reasons why tribes may decide to create a council that advises Congress as well as the executive branch is to present a unified front on areas of common concern, and:
To make full use of Congress’ oversight powers over executive branch agencies.
To legislatively reverse unfavorable court decisions. Indian case law in many areas of tribal concern have become so well-defined, either favorably or unfavorably to Indian interests, that new lawsuits or test cases are unlikely to succeed in advancing Indian interests through the courts.
To include Indians as legitimate service providers in general legislation that provides federal services to non-Indians.
Both the legislative and executive branches have become much more accustomed over the past decade to having tribes assert and protect their interests through legislation. As Indians continue to have problems in the executive branch’s delivery of health, education and other government services, they have come to rely more on legislative remedies when their needs are not being met.
A reason for tribes to focus on the legislative branch along with the executive branch is to appreciate the legislative branch’s role in overseeing how the executive branch executes its trust responsibility to protect Indians. Under the trust responsibility, the U.S. government acts as trustee for Indian land and other property both owned by tribes as well as individual Indians. Traditionally, Congress’ role has been to evaluate the performance of the executive branch in safeguarding Indian interests, and to propose improvements or changes through legislative initiatives.
In the 1991-92 session of Congress, Sen. Daniel K. Inouye (D-Hawaii) introduced a bill that would have formally set up a National Commission of Native American Governments whose purposes would be:
To advise the president and the executive branch generally on Indian policy.
To evaluate in an ongoing and comprehensive manner federal programs in Indian affairs.
To participate in policy discussions with federal agencies and make recommendations for federal appointments.
Inouye introduced the bill with the announced intention of stirring debate, rather than engaging in a full-court press to enact the measure. Consequently, no similar bill had been introduced in the new Congress as of late 1993. Under the bill, the commission would serve at the pleasure of tribes, who would appoint its members and establish rules governing its operation. For the first year of operation, Inouye proposed, the Bureau of Indian Affairs’ 36-member Reorganization Task Force would be recognized as the interim commission. Tribes would accord this recognition by appointing the members of the task force, three from each of the 12 Bureau of Indian Affairs service areas. At any time, tribes could disempower the task force from representing them on legislative issues. The secretary of the interior would be responsible for polling tribes if tribes seem dissatisfied with the task force or commission. By a simple majority vote, tribes could disempower the task force or disband the commission.
II. CONGRESS IS THE LAST RESORT
If Indian affairs ran smoothly in this country, the executive branch would adequately address everyday Indian concerns. Congress’ role would largely be limited to appropriating the funds that tribes receive from the federal government, and to automatically approve non-financial policy decisions that the executive branch made. However, executive branch Indian operations are largely inefficient, especially in health care and education. Until service delivery is improved, Indian programs need Congress’ close scrutiny to be successful.
Some might argue that because the executive branch is less responsive to Indian needs than the Congress, that any new tribal structure in Washington be focused totally on the executive branch. However, because of Congress’ strong oversight role in checking to see that the Bureau of Indian Affairs, Indian Health Service and other federal agencies meet Indian needs, tribes would benefit from having Congress there with them when dealing with the executive branch. After all, administrators always want to please members of Congress when they can, since Congress controls administrators’ budgets. Although the constitutionally guaranteed government-to-government relationship between the executive branch and tribes is nothing to sneeze at, close congressional scrutiny can only enhance the executive branch-tribal relationship.
The congressional role in Indian affairs is often distinct from the government-to-government relationship the federal government has with individual tribes. Indian issues arising before Congress are often of a general nature of concern to all Indians, such as being included as beneficiaries in wide-ranging legislation in areas such as economic incentives, environmental protection andhousing. However, despite the seeming unanimity that tribes would have on programs benefitting all tribes, there is currently no structure for them to present this united front.
The closest structure for achieving unanimity among tribes on national Indian issues is the National Congress of American Indians, which represents 140 tribes. Although non-NCAI member tribes may support NCAI advocacy generally, members of Congress have difficulty inferring a unified tribal position from NCAI advocacy, particularly on controversial issues. As a result, NCAI advocacy is sometimes viewed as distinct from tribal representation that flow from the government-to-government relationship that they have with the federal government.
Despite the emphasis placed on the executive branch in enacting treaties and meeting its trust responsibility to tribes, the Constitution guarantees an overarching role for Congress in Indian affairs. In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832), the Supreme Court ruled that the Constitution “confers on Congress the powers of war and peace, of making treaties, and of regulating commerce… with Indian tribes. These powers comprehend all that is required for our regulation of our intercourse with the Indian tribes.”
That decision, as well as United States v. Wheeler, 435 U.S. 313, 323-324 (1978), confirmed the government-to-government relationship between tribes and the federal government. In Wheeler, the court said that tribes are “distinct, independent public communities” whose exercise of governmental power is inherent in their sovereignty. The role of Congress in Indian affairs is shown by virtually all of the Indian legislation enacted since the country’s formation under Title 25 of the U.S. Code as well as the many other statutes that address Indian interests.
The Supreme Court does limit how far Congress can go in enacting legislation that affect Indians. Such laws must be “tied rationally to the fulfillment of Congress’ unique obligation toward the Indians,” it said in Morton v. Mancari, 417 U.S. 535, 555 (1974), in upholding a statute preferring Indians for employment in the federal Indian service. The court also said that Congress is bound to observe “due process of law” in its relations with the Indians, in Delaware Tribal Business Committee v. Weeks, 430 U.S. 73,84 (1977), a ruling that dealt with the distribution of funds appropriated after a claims judgment favoring the Delaware Indian tribe. The high court has also settled that when Congress enacts legislation affecting Indian interests, it is recognizing Indians as a political entity, and not according to an impermissible racial classification.
III. SHIFT FROM THE COURTS TO CONGRESS
Congress’ role in Indian affairs has become much more important of late in reversing the effects of negative court decisions. This trend is reflected in legislation Congress enacted in 1992 to reverse a Supreme Court ruling in Duro v. Reina 495 U.S. 676 (1990) that tribes do not have jurisdiction over nonmember Indians, and in consideration of several bills relating to the jurisdiction of tribal courts. It is also reflected in current interest among tribes in having Congress resolve the double taxation problem illustrated by Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163(1989). The high court held in Cotton that the State of New Mexico was free to set its own tax rates on the extraction by non-Indian businesses of tribally owned materials even though the Jicarilla Apache tribe was already taxing that production. Congress could alleviate this problem by providing tax incentives to encourage states and tribes to reach tax-sharing agreements; another option is to provide tax credits to a third-party business operating on Indian lands in compensation for paying taxes to a tribe.
The shift in emphasis from the courts to Congress follows an historic period of federal court decisions favorable to Indians. It began with the Supreme Court’s 1959 decision in Williams v. Lee, 358 U.S. 217 (1959), which upheld the exclusive jurisdiction of the Navajo Tribal Court over the collection of a debt owed by Indians to a non-Indian merchant on the reservation, and has continued for over 30 years. Indeed, in the 1970s and 1980s the Supreme Court considered over 80 Indian law cases, many resulting in resounding tribal victories. These victories include:
McClanahan v. Arizona Tax Commission, 411 U.S. 104 (1973), in which the court invalidated a state income tax levied on the earnings of an Indian employed on her reservation.
United States v. Mazurie, 419 U.S. 544 (1975), in which the high court upheld the convictions of non-Indians for selling liquor in Indian country without tribal permission
United States v. Wheeler, 435 U.S. 313 (1978), in which the court held that the Fifth Amendment’s double jeopardy clause does not bar federal prosecution following tribal court prosecution for the same acts because the tribes are “separate sovereigns” from the federal government.
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), in which the court held that federal courts had no jurisdiction to review a tribe’s refusal to grant membership to certain Indians.
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), in which the court upheld the validity of tribal taxes on non-Indian lessees of trust land within a reservation.
Mescalero Apache Tribe v. New Mexico, 462 U.S. 324 (1983), in which the court held as invalid state fees that interfered with tribal regulation and income from non-Indian hunting and fishing.
These and other tribal victories established much of the legal framework of tribal sovereignty. That framework includes deferring to congressional intent in resolving jurisdictional conflicts between tribes and states. This deference was first introduced in the court’s 1973 decision in McClanahan. It has had the effect of directing Indian law issues to Congress, rather than the courts. This deference is also referred to as the preemption doctrine, which means that any federal law, including acts of Congress, preempt related state laws pertaining to tribes.
New action by Congress is needed to protect tribal governments like other governments are protected from requirements placed on employee benefit plans by the Employee Retirement Income Security Act of 1974, 29 U.S.C. 651 et seq.; and from the regulations contained in the Occupational Safety and Health Act, 29 U.S.C.651, et seq. Recent legal decisions in this area have been unfavorable. In Smart v. State Farms Ins. Co., 868 F.2d 929 (7th Cir. 1989), a lower court held that ERISA is applicable to a group health plan for tribal employers. An appeals court reached a similar holding in Lumber Industry Pension v. Warm Springs, 939 F.2d 683 (9th Cir. 1991). By contrast, Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (10th Cir. 1969), deemed OSHA inapplicable to tribal enterprise, whereas Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985) reached the opposite result. IV. TRIBAL OPPORTUNITIES IN NON-INDIAN LEGISLATION
Many new opportunities are arising for tribes to benefit from legislation that affects all U.S. citizens. Political analysts have concluded that coupled with Congress’ greater importance to Indians relative to the courts, much of the progress in Indian affairs in the next decade is likely to result from tribal advocacy in Congress.
Congress is now more frequently considering tribal interests in broad legislation such as the enacted Intermodal Surface Transportation Efficiency Act of 1991 and the earlier enacted amendments to the federal environment protection statutes, which explicitly recognize tribal government authority to regulate the environmental protection standards that will apply to Indian country. Inaddition, tribes are now included in legislation that provide funds for infrastructure development, or other federal benefits, such as the Higher Education Amendments of 1992, and the Intermodal Surface Transportation Efficiency Act of 1991. Tribal participation in the congressional process determines the extent to which tribes benefit from the legislation.
Congress is also considering whether to extend the application of certain federal laws to Indian tribes, and if so, on what terms. Many of the legislative initiatives that have been enacted have been favorable in treating tribes like states. They include the Safe Drinking Water Act, 42 U.S.C. 300f(10), (14), 300h-1(e), 300j-2,300j-11; Clean Air Act, 42 U.S.C. 7474(c); and the Tribal Tax Status Act, 26 U.S.C. 7871(a), which said that “an Indian tribal government shall be treated as a State.”
V. LIMITATIONS ON THE COMMISSION’S POWERS
As compared with the proposal for a new executive branch council of tribal leaders, the idea for having a tribal commission to consult with both the executive and legislative branches has both similarities and differences.
On substantive matters, either proposal would have to tread carefully on matters that could impact individual tribes financially or involve policy matters on which there is not a clear position among tribal leaders. This reasoning is discussed in more detail in a similar section in the paper on an executive branch council.
Even if tribes agree with the utility of being able to present a unified front to Congress and the executive branch on issues where there is likely to be a consensus, the final obstacle would be the structure of such a body. Perhaps the greatest difference between this proposal and the one for an executive branch council is that by participating as well in the legislative process, such a commission would inherently be a lot more powerful. That is because executive branch officials may still not feel bound by what they are told by tribal leaders; but by including members of Congress as well, a commission of tribal leaders could be much more thorough in facilitating joint decision-making by Congress and the executive branch.
Assuming that the commission would be especially influential in both the executive and legislative branches, tribes might not be comfortable with having the BIA’s Reorganization Task Force serve as the interim commission for the first year. As included in the Inouye bill, after the first year, tribes would appoint a new 36-member body separate from the BIA task force. This idea was modeled on the selection of the task force three each from each of the BIA’s 12 regions. However, the basic problem with task force representation is that it is weighted too heavily based on where BIA offices are and not on the tribal population in each of the BIA regions. For example, since there are two BIA area offices in Oklahoma, it has double the number of representatives of California, which only has one area office. Since Alaska has only one BIA office, it only has three representatives for more than 200 villages.
Therefore, any selection of commission members might be weighted based on tribal size, which would be similar to the process by which the National Congress of American Indians decides on policy matters: the tribes in NCAI are granted votes according to their size, with the largest having 180 and the smallest having 100.
If tribes are uncomfortable with creating a totally new powerful structure in Washington, they might alternatively consider having the NCAI represent them assuming that it makes it much easier for tribes to have input. Currently, NCAI positions are taken mainly at its three yearly meetings. One reason why more than 360 tribes are not members of NCAI is that it is expensive for them to send delegates to NCAI conventions. If presented with the possibility of having a few hundred more tribes participate in NCAI decision-making, NCAI might agree to conduct telephone or fax polls of tribes instead of conducting such votes at conventions.
Even if the aforementioned concerns of tribes were met, some of the largest tribes might still be unwilling to participate in an independent commission or one attached to the NCAI. That’s because the largest tribes have independent lobbying operations that they might not want to reduce in any manner.
For Indian tribes to maximize their success before Congress, tribal leaders must be able to reach a consensus on legislative initiatives. To do this, a means of identifying these initiatives, achieving a consensus when one is desired, and advancing the unified tribal position on such initiatives should be developed. This would, in all likelihood, require that an organization be designated or developed for these purposes, and that a process by which it would operate be defined.
The suggested National Commission of Native American Governments could energize the government-to-government relationship between tribes and the federal government. However, tribal leaders and Indian policy specialists may agree on a different type of structure than a commission, or to have it attached to NCAI assuming NCAI creates a phone or fax voting system to replace its emphasis on convention voting.
In deciding whether to create a new structure, tribes should take into account the importance of having stronger ties to Congress, which serves tribes’ interests by serving as a watchdog over the executive branch. Congress recently has taken on new importance as well in responding to unfavorable court decisions to Indians and in including Indians as beneficiaries in broad legislation. The fact that tribes have recently become interested in the pros and cons of creating a commission is an acknowledgment of Congress’ important role in Indian affairs. Regardless of what tribes decide on the issue of representation, the emphasis on both Congress and the executive branch should be here to stay.
THE PROPOSED TRIBAL-CONGRESSIONAL/EXECUTIVE BRANCH COMMISSION
Contributions by: Douglas B.L. Endreson, Attorney
Sonosky, Chambers, Sachse and Endreson Washington, D.C.
Alan R. Parker, Director National Indian Policy Center(c)
THE PROPOSED TRIBAL-EXECUTIVE BRANCH COUNCIL
TABLE OF CONTENTS
I. INTRODUCTION 45
II. STRUCTURE OF THE PROPOSED TRIBAL- EXECUTIVE BRANCH COUNCIL 46
III. THE BENEFITS TO TRIBES 47
A. Past and Future Treaties 47
B. Executive Branch Decisions 47
C. Issues Not Presently Being Addressed 48
1. Implementing the government-to- government relationship 48
2. Multiple taxation 50
IV. UNRESOLVED ISSUES 51
APPENDIX: FLOW CHARTS FOR THE PROPOSED TRIBAL-EXECUTIVE COUNCIL
The only way of ensuring that the Indians’ best interests are served in federal policy is for the political leaders of tribal governments to firmly play a role in executive and legislative branch decision-making. At present, Native Americans have much greater input in Congress than in the White House and federal departments and agencies. This is primarily due to the nature of the political process: 435 House members and 100 senators by law represent small segments of the U.S. population. To be elected, they need to be responsive to the interests of their constituents. By contrast, the president and Cabinet-level officials cannot be responsive to all groups that have unique needs.
In addition, one of the inherent problems in the making of executive branch policy is that there is little institutional memory in the top political appointees who make the policy. Whereas the key members of Congress on Indian issues will span several presidencies, each president’s key advisers on Indian affairs end their tenure usually without having an influence on the policies of a future president’s advisers.
One way that has been suggested for Indians to “institutionalize” their standing in the executive branch is to agree to support the creation of an Interdepartmental Council on Indian Affairs comprised of both tribal representatives and executive branch policymakers on Indian affairs. There are more than 500 tribes that possess a diversity of cultural and political views. However, they lack a forum for presenting a truly unified view on national policy issues that has official standing with either to Congress or the executive branch as a body representative of all tribal governments. As things stand now, policymakers seeking a tribal consensus on national issues can only look to the National Congress of American Indians, which represents 140 tribes. For one reason or another, 360 tribes have chosen not to be represented by any one national group, although they generally support NCAI’s goals or simply cannot afford to join and send tribal delegations to NCAI conventions.
This paper will examine the role that an Inter-Departmental Council on Indian Affairs in the executive branch could play to advance Native goals in federal policy. It is offered as a discussion paper to be deliberated by tribal leaders. Significantly, however, the NCAI’s executive council endorsed the council concept at its March 1993 meeting. That decision followed a similar endorsement a month earlier by the tribal delegates to the task force on reorganizing the Bureau of Indian Affairs.
II. STRUCTURE OF THE PROPOSED TRIBAL-EXECUTIVE BRANCH COUNCIL
Probably the most difficult aspect of implementing the interdepartmental council concept is for tribes to decide who will be its representatives. As a practical matter, it would be impossible to have one representative from each tribe attend all meetings, the overwhelming number of tribes would have to be comfortable with having leaders of other tribes represent them. Tribes have accepted this approach as exemplified by the structure of the BIA Reorganization Task Force, as well as the NCAI board structure of 12 area vice presidents. The BIA task force’s 36 members, three representatives from each of the BIA’s 12 regions, were selected by tribes in their regions either by nominating them or conducting an election. The proposed council will need to formulate a process for selecting its representatives.
The council would be co-chaired by a tribal representative and the vice president of the United States (see appendix for flow charts of council structure). Executive branch members of the task force would represent the range of departments and agencies that deal with Native issues, including the Department of Health and Human Services, the Department of Education, the Department of Housing and Urban Development and the Department of Interior. The vice president would be given clear executive branch endorsement and direction to ensure that Indian policy is properly implemented. In the event of problems or conflicts, the agencies involved would attempt to resolve the conflict. If the council were unable to resolve an inter-cabinet conflict, the president would make the final determination.
III. THE BENEFITS TO TRIBES
In theory, by having a council of tribal leaders participating in executive branch policy decisions, tribes can better ensure that their views are considered in policy areas raised by agency officials. The council would not be a substitute for the frequent contacts that currently take place between tribes and officials, nor is it intended to interfere with the government-to-government relationship of individual tribes with the federal government. Rather, it would enhance consideration of major issues by acting as an “early warning system” to administrative decisions. In addition, the council could be a forum to raise issues not of immediate concern to the executive branch but which tribal leaders feel greater attention should be paid to. To protect Indian interests, the council would be convened either according to a predictable schedule, such as quarterly, or more or less often as developments warrant.
The following are several examples where a council could greater protect Indian interests:
A dramatic example of how the council could protect Indian interests that might otherwise be irrevocably lost are those affected by U.S. treaties being negotiated with foreign governments. Several years ago, the United States, Japan and several Scandinavian countries negotiated a treaty that imposed a moratorium on the hunting of bowhead whales in the Arctic Ocean. It was only after each of the countries ratified the treaty that Alaska Natives who hunt bowheads as a part of their culture were made aware of its affect on them. The treaty ended up being amended later. It could have had a devastating impact on their culture. Even though some Alaska Natives hunt only a few bowhead whales each year, hardly an act that would endanger the species, the real purpose in engaging in the hunt is not so much to kill a whale but to participate in the hunt.
Because other legislative and administrative policy processes do not involve foreign governments, they tend to be much easier to reverse if later shown to be damaging to the interests of Indians. However, to ensure the fullest protection for Indians in all legislation and administrative action, Indians would benefit from being consulted as much as possible.
B. Executive Branch Decisions
To show how disjointed the government can be in considering tribal impacts and the views of tribal elected officials, Vice President Gore’s 1993 proposal to reinvent government would reduce the federal workforce by 250,000 employees. Under the proposal, the BIA’s area offices would be consolidated from 12 to five. Legislation introduced in Congress in response to Gore’s effort has included that provision. Both steps were taken despite the fact that the joint Interior Department/BIA Reorganization Task Force recommended that area offices be retained while scaling them down to focus more on providing technical assistance to Indians at the reservation level. Having an Indian council in the executive branch would have provided officials with a forum for a meaningful dialogue to any of their proposals. In the case of the Gore proposal, the council would have been consulted in advance of his release of the reinvent-government proposal.
C. Issues Not Presently Being Addressed
1. Implementing the government-to-government relationship
Many of the principles underlying the existence of federal policies and services have remained constant since they were first enunciated clearly by President Lyndon Johnson in the mid-1960s. They include:
To recognize that inherent sovereignty of each Indian nation provides paramount authority to exist and govern.
To conduct negotiations with tribal governments on the basis of mutually recognized sovereignty.
To base their relationship on tradition, treaties, federal law, and executive orders, including concepts that predate the formation of the United States.
To extend the government-to-government relationship to all recognized tribes, whether recognized by treaty, statute, agreement, executive order, or delegated administrative action.
To deal with each tribe as an independent entity within the framework of the Constitution.
To extend recognition, and to establish or reassume the government-to- government relationship, with respect to all tribes, including those that may be terminated or non-recognized.
Although those principles have been clearly articulated in numerous acts of Congress and presidential policy statements, others could be added for practical impact. They would include:
To ensure that tribes benefit from all legislation that aids state and local governments.
To base the relationship between Indian nations and the United States on tradition, treaties, federal law, and executive orders, including concepts that predate the formation of the United States.
To provide financial or technical assistance to tribes in the areas of environmental protection, economic development, education and social services, and housing.
To increase tribal authority over the administration of federal funds and capacity enhance tribal governance and management.
To broaden the authority of sovereign tribal criminal and civil jurisdiction over all places, persons, property, and events within Indian country.
To extend the authority and primacy of tribal governments to protect and sustain the essential character and integrity of tribal homelands.
To provide exclusive on-reservation taxation authority to tribal governments by eliminating the burden of dual taxation that inhibits development of reservation economies.
To recognize Indian nations as distinct governments on a par with states for purposes of implementing federal statutes involving the distribution of funds or the administration of programs.
To ensure that no governmental entity may infringe upon the rights of or attempt to impose policy decisions on other governmental entities, i.e. tribal governments. Affected Indian nations will be afforded full consultation prior to the any action by the United States or any of its member states that will adversely affect tribal interests.
2. Multiple taxation
The council could also raise issues that otherwise would not be seriously addressed by the executive branch. For example, while tribes do not pay federal taxes, virtually all have experienced an erosion of their tax bases because states are taxing energy production or other third- party activity on Indian lands. In virtually all cases, states impose their taxes on industries without consulting tribes. As a result, the ability of tribes to generate adequate tax revenue from third-party activity, such as coal, gas or oil production, is greatly determined by the levy imposed by states. If that levy is especially high, the third party will be reluctant to pursue the enterprise if tribes then ask for a tax levy. As a result, states are disproportionately receiving the revenue from areas of multiple taxation involving tribes.
One potential goal of federal policy could be to encourage states and tribes to reach tax-sharing agreements in areas of multiple taxation. One way to encourage such cooperation would be for the federal government to provide tax credits to the third-party business, in compensation for paying taxes to a tribe. In many ways, state-tribal cooperation generally is considered poor. That is because many states view themselves as having no special mission to protect Indian interests, and instead assume that the federal government will step in if there is a need, especially in this era of tight state budgets. This issue is not adequately being dealt with either in Congress or the executive branch. But by having a tribal council in the executive branch, tribes can provide themselves with a high-level forum for addressing long-term issues, such as multiple taxation, that otherwise might not receive serious consideration.
IV. UNRESOLVED ISSUES
The one area where the council would have to tread carefully is on matters that could impact individual tribes financially or involve policy matters on which there is not a clear consensus position among tribal leaders. To demonstrate the broad scope of matters that the council would address, it will be important to determine the degree to which tribal consensus should be pursued in the council.
An analogous body that the council could look to is the U.S. Congress. While individual members of Congress might sense that a majority of their constituents feel a certain way on an issue, they might vote otherwise if they saw a larger issue at stake that would provide greater benefit in the longer term.
For example, on the North American Free Trade Agreement, a majority of constituents in some districts opposed the proposed free trade zone between the United States, Canada and Mexico because they fear that they may lose their jobs. However, there were few constituents who said with equal certainty that they would gain employment because of NAFTA. In that case, many members of Congress took their positions based on larger concerns than those presented by their individual members.
In the case of the council, most of the issues that it would deal with would involve the sufficiency or allocation of federal spending. Decisions involving the distribution of limited federal dollars or reduction in federal money would be much more difficult, although agreement on a formula for distributing dollars that go to all tribes might be reasonable. For example, the council might seek more Environmental Protection Agency funds to clean up pollutants on reservations. But if it became clear that there was a limit to the pie, the council might develop and provide the government with a formula for allocating the limited funds.
In addition, the unstable federal budget process should not adversely affect Indians as it does other groups. Since 1990, Congress has imposed itself with the requirement to offset any dollar in new spending with a dollar in either new taxes or reduced spending. However, increases in Indian spending over the last few years have not been offset with cuts elsewhere in Indian programs; rather, cuts have been absorbed generally within the entire federal budget. For example, in the 1993 tax bill, Congress approved an Employment Tax Credit to benefit employers who hire Indians, as well as an acceleration depreciation of assets for those employers. The cost of that program was estimated to be $80 million over five years. However, Congress did not specifically offset the $80 million with cuts in any Indian programs, nor did it suggest that Indians propose any cuts. Instead, the tax credits were “paid for” from general revenues derived from across-the-board tax increases.
The proposed council would provide a forum for the deliberation, formulation and coordination of federal-Indian policy, and for its implementation. Creation of the council would provide a meaningful framework for advancing the government-to-government relationship between the governments of Indian nations and the United States.
A formal mechanism is necessary to effectively improve coordination of all Federal programs, services, functions, and activities. Several departments operate programs that could help Indian governments. But because the nature of the relationship between the U.S. government and Indian nations is poorly understood within the federal government, imporved awareness is necessary to advance legitimate tribal rights.
In the absence of an executive branch-wide policy, agencies of the Federal Government have developed their own Indian policies or have ignored obligations to Indian tribes. This practice has also led to serious conflicts in policy interpretation and application that has created formidable barriers to tribal access and substantive involvement.
The proposed council would provide a means to effectively implement policies and programs for Indian affairs, and to promote legislative or administrative authorizations and initiatives to support Indian tribes across all federal departments. Such an over-arching mechanism is essential to achieving consistency in the relationship between tribal governments and the United States.
The council would not be a threat to the existence and political role of already established Indian advocacy organizations such as the NCAI. NCAI’s tribal and nontribal members will likely decide to maintain their membership because it would continue to be the only national organization representing a broad base of tribes. In addition, NCAI’s public advocacy on Indian affairs would be much broader than the administrative and legislative-specific efforts that the council would undertake. In addition, NCAI through its strong presence in Washington could perform a watchdog function to ensure that the council is functioning as it is intended.
In terms of the council’s mandate, it would tend to deal on matters on which there is a tribal consensus. On issues of how to allocate limited federal funds to tribes or reduced federal dollars, the council might as a last resort decide on a formula for the federal government to use to allocate that money. Or, the council might decide to recuse itself from providing a recommendation on the issue.