55 r TRIHAL GOVERNMENTS AND FEDERAL RELATIONS. 54 TRIBAL GOVEKNMkiNTS AND FEDERAL RELATIONS I

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2 54 TRIBAL GOVEKNMkiNTS AND FEDERAL RELATIONS I 55 r TRIHAL GOVERNMENTS AND FEDERAL RELATIONS Under their constitutions and bylaws, the tribes exert powers very similar to those of other local governments. They represent the people's sovereignty in entering into contracts, hiring counsel, negotiating and lobbying with other levels of government, and passing and enforcing laws. They set membership criteria and pass on all tribal enrollment. They hire staff and administer programs. To comply with legal requirements, the tribes establish housing authorities, development corporations, construction companies, and other enterprises. They hold elections, establish courts and advisory groups, grant income-producing leases, and grant housing and other leases to members. They have sovereign immunity and can be sued only if the action is first approved by Congress. Unlike other governments, Indian tribal governments must seek BIA approval before they may take some actions; the degree of federal involvement varies with the wording of the specific tribal constitution. Constitutional amendments must be approved by the BIA as well as by the tribal governing body (a two-thirds vote in the case of the MCT) and a majority of those voting in an election, provided that at least 30% of eligible voters have voted. Voting in elections is limited to enrolled members who are 18 or older. Absentee voting is allowed on all reservations except three of the Sioux Communities (Prairie Island does allow it). Elections are often hotly contested, and there may be a large absentee vote In the race for secretary-treasurer of the White Earth Reservation in 1982, the winning candidate got 203 of his 378-vote total from absentee voters. Minnesota Chippewa Tribe. The MCT Constitution was first adopted in 1936 and amended in 1963 and 1972 into its present structure. It is the constitution for the Bois Forte, Fond du Lac, Grand Portage, Leech Lake, and White Earth reservations and for the Nonremovable Mille 1,acs band. It is also the constitution for the MCT itself, the umbrella organization of the six reservations. Each of the six reservations elects at large a chairman and secretary-treasurer and one to three representatives by district, all for fouryear terms. These officials form the Reservation Business Committee (RBC), the governing body of each reservation. The MCT also has powers as a tribe. (Throughout this book, "tribe" refers to the RBC of a reservation unless MCT is specifically mentioned.) Its governing body is the Tribal Executive Committee (TEC), which is I I composed of the chairman and secretary-treasurer of each reservation- 12 members in all. A president, vice-president, secretary, and treasurer are selected from the TEC members for two-year terms. The appointed Urban Advisory Committee is made up of one RBC-chosen representative for each reservation. Some reservations also elect local Indian councils, which are active at the community level but not a formal body under the tribal constitution. The MCT headquarters is located at Cass Lake; additional offices in Duluth and Minneapolis serve members and administer programs that extend off the reservations. In the early 1980s, the MCT was operating many programs and had a staff of 250; by 1982 the staff had been cut to about 100. Program funding had been cut or eliminated, and individual reservations in several instances were choosing to administer programs themselves. In view of these changes, the MCT and the RBCs have been reviewing their practices to determine the level of government that can best provide particular services. In 1981, Mille Lacs Reservation began reorganizing its government into three separate branches that became fully functional in The tribal chairman heads the executive branch; the Legislative Assembly includes the secretary-treasurer as speaker, with three remaining members elected by district; and the seven-person Court of Central Jurisdiction enforces laws and resolves disputes. The court uses unwritten cultural tradition as well as tribal ordinances in making its decisions. Among the appointed positions are an advisory council of elders and a spiritual adviser. The reservation is still formally a part of the MCT structure. Mille Lacs leaders explain, however, that the new form of governance is based on the inherent sovereignty that rests with the band, on a provision in the MCT constitution that RBCs may define the duties of officers and committtees, and on an opinion by the Department of the Interior solicitor that a tribe in a PL 280 state retains "sovereign power to enact its own law and order code, establish a tribal court, and authorize tribal police to enforce tribal law."' Red Lake. Red Lake Reservation's revised constitution and bylaws were adopted in 1959 and amended in 1974 and The tribal council is composed of a chairman, secretary, and treasurer (all elected at large) and eight council members (two elected from each of four districts). Descendants of the seven hereditary chiefs continue to serve as an advisory council.

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4 58 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS Congressionally lrnposed Limitations The Constitution grants Congress the power to regulate commerce with Indian tribes, a provision that has been broadly construed to give Congress authority in many areas beyond just regulating commerce. Indians on their reservations do not come under any of the other protections or clauses of the Constitution except as Congress uses its power under the commerce clause. This "plenary power" gives Congress extraordinary control over Indian tribes. "It can, without regard to most Constitutional safeguards, do whatever it wants in Indian affair^."^ Congress is the "bottom line" on Indian issues. Questions are being raised about whether it is proper for Congress to have extraordinary power over Indian tribes. At the time the principle of plenary power was applied (US u. Kagarna, 1886), Indians were in a very dependent role. But "incompetents, needing a guardian" or "wards" is not now a valid characterization of lndians in their relationship to the federal government. Rather, the relationship is based on the trust obligation. As pointed out by a tribal attorney, the plenary power of Congress holds over Indian tribes the constant threat that everything can be taken away. In political terms, this becomes the unstated or overt threat that Indians must agree to proposals or Congress will act to make things worse. The attorney maintained that the concept of plenary power is inconsistent with respect for human rights and with other fundamental American principles of democratic self-government.' Because Indians are weak politically and are at the mercy of governments that they are unable to influence alone, their survival becomes the necessary concern of all Americans. The US Commission on Civil Rights commented that "Indian tribes have had to rely upon the constitutional-legal system and the moral conscience of society for their survival."8 The concept of tribal sovereignty as identified by Felix Cohen is considered the standard. There are three fundamental principles: (I) An Indian tribe possesses... all the powers of any sovereign state. (2) Conquest renders the tribe subject to the legislative power of the United States... terminates the external powers of sovereignty... e.g. its power to enter into treaties with foreign nations, but does not by itself affect 59 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS the internal sovereignty of the tribe, i.e., its powers of local self-government. (3) These powers are subject to qualification by treaties and by express legislation of Congress, but... [unless] expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government. Cohen also noted that the right to self-government has been "consistently protected by the courts, frequently recognized and intermittently ignored by treaty-makers and legislators, and very widely disregarded by administrative ~fficials."'~ On reservations, individual rights are defined by tribal constitutions and the Indian Civil Rights Act of Tribal sovereignty is acknowledged and, in general terms, "most of the constitutional protections of individual rights do not apply to the operations of tribal governments. Neither Indians nor non-indians on the reservation have the same rights with respect to tribal governments that they both have with respect to federal, state, and local governments."" Some Bill of Rights protections have been extended: freedom of speech and religion are specified, although tribes may have established religions. Jury trials are provided for in criminal cases if there could be a jail sentence, but free counsel is not mandated. If violations of rights are alleged, tribal courts deal with them, with the exception of petitions of habeas corpus in crimiilal cases (which may be taken to federal courts). The Role of the BIA The BIA has the power to limit tribal sovereignty and decision making on the basis of laws and tribal constitutions. This stems from several sources. Laws define the agency's purposes as (1) preserving inherent rights of tribal self-government and providing resources and help in strengthening tribal capacity to govern; (2) pursuing and protecting sovereignty rights; and (3) fulfilling the trust obligation, for which it is held liable. Fulfillment of the trust obligation by the BIA implies some control over tribal governments. The Indian Self-Determination Act, however, gave the tribes the right to contract to run their own programs, subject to BIA approval reached through negotiation. The extent of residual control and its administration by the BIA have been difficult issues to resolve in some cases. There is greatest agreement that the BIA is

5 60 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS responsible for land and natural resources like timber. The MCT and the BIA have been unable to reach agreement on the MCT proposal that it assume the operating function of the BlA Minnesota Agency Office, including handling the tribe's timber resources. Red Lake Reservation has shown less interest in taking charge of its programs, perhaps having a greater fear of termination and cutoff of federal funds (see the discussion of the BIA embargo on funds, below). Tribal constitutions, which are based on BIA models, specify the federal approval of several functions. The MCT Constitution, for instance, mandates approval of proposed constitutional amendments, attorney contracts, transfer of funds from the federal government to the tribe, and ordinances to license or impose fees on nonmembers. The BIA acknowledges that the 1934 standard tribal constitution requires more BIA approval than is now necessary because tribes are more capable and need less supervision." Changing a constitution is a laborious process, requiring not only tribal council and voter approval but also approval of BIA offices at the local, area, and national levels and the US solicitor's office, Department of the Interior. Differences have arisen between the MCT and the BIA on questions of constitutional powers. Tribal leaders believe that the MCT is already empowered by the document to "exercise all powers granted and provided Indians." If they wish to take actions exercising aboriginal sovereignty and allowed by federal law, they claim that they do not need to seek BIA permission first. The BlA sees the constitution as a narrow document, the limited delegation of the sovereign power from the tribal member to the MCT leadership. Lacking specific authorization in the constitution, the leadership must seek an amendment before it can act. The BIA is also authorized by statute to review and approve all tribal contracts and ordinances. Although this broad authorizativn has never been followed, federal law allows a great deal of supervision. Approval of ordinances that would apply to non-indians as well as tribal members on the reservations has been a politically sensitive issue with the BIA. Although jurisdictional questions have not been resolved, a 1982 letter from the secretary of the interior circulated within the department recommended that approval should not be granted unless more than 50% of the reservation was under Indian control. Although not formal policy, the letter indicates that tribes that have only small portions of their reservations remaining in federal trust might have difficulty getting approval for regulations that apply throughout the reservation. 61 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS 1 Intervention at Red Lake. In 1979, violence erupted on the reservation when the Red Lake Tribal Council, upset with the actions of an elected official, removed that person from office. Tribal members critical of the tribal government, seeing no opportunity to have their complaints dealt with by an impartial authority, resorted to violence at great cost to the reservation. In an attempt to modify the tribal council's actions, the BIA stopped all federal program funding and threatened to withdraw federal recognition of the Red Lake band. Despite an embargo on funds that lasted nearly a year, the tribal council did not change its position. According to a solicitor in the Department of Interior, the BIA's actions were authorized because the agency was a party to the approval of the tribal constitution. As such, it had a role in seeing that the tribe did not "stray too far from the path of democracy" in running the reservation. In his view, because tribes are outside of the US Constitution and there is no basis in law for judicial review of tribal actions, "the secretary of interior has the authority to suspend support of that government" if the BIA considers that a tribal constitution has been violated.i3 The Red Lake government saw the BIA action as improperly infringing on tribal sovereignty. Roger Jourdain, Red Lake tribal chairman, commented on the federal government's action: 'We were determined that the BIA would not break us up. That was the tactic.... I could not give up. It was the principle. The BIA tried just about everything.'"' Control through Funding Powers. Reliance on government funding is a major restriction on tribal sovereignty, and funding agencies come to dominate policy decisions. "Over 90% of all money coming on the reservation is federal. That's slavery, colonialism. The federal government can dominate a reservation," said an Indian active in government programs for many years.i5 "[Government]... can't possibly bestow self-determination upon Indian people at the same time it orchestrates their future."" Because tribes depend heavily on BIA funding, they support adequate appropriations and strong, energetic programs. Rather than earmarking funds for specific programs, however, they ask that tribes be given the administrative power to decide priorities and focus programs on their greatest local needs. Indian View of the BIA. Many lndians have a special love-hate feeling about the BIA. It is the protector of the reservations and the

6 62 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS tribes and a major source of funding for needed programs, but it is accused of "inept bungling" and being a law unto itself. BIA dominance over tribal government is an unresolved issue. The American Indian Policy Review Commission noted that "tribal governments are simply not true governments if the Secretary of Interior and his agents [BIA] continue to possess and exercise authority to veto virtually all forms of tribal government action."" In a statement on 24 January 1983, President Reagan blamed excessive regulation and bureaucracy for having "stifled local decision-making... [and] promoted dependency rather than self-sufficien~y."~ Through the BIA Programs for Indians The BIA funds and is involved in many programs that are discussed in later chapters of this book. Some are specifically authorized and defined by Congress, but the BIA's basic authority comes from the Snyder Act of 1921 (25 USC 13), which authorizes it to provide programs for general support and civilization. Program specifics are set by regulations prepared by the BIA. Unlike the programs of most federal agencies, BIA programs do not go through an authorization process. Rather (as stated in the Snyder Act), the BIA spends "such moneys as Congress may from time to time appropriate." The US Supreme Court and further legislation have mandated Indian preference in hiring and promotion within these programs as well as contracting and purchasing. RIA programs are generally restricted to persons who are onefourth degree Indian or more, are members of federally recognized tribes (this excludes terminated tribes), and live on or "near" a reservation. BIA rules define "near" Indians as those living on land that is contiguous, where administration is feasible; living where there are other Indians; socially and economically affiliated with the tribe; or designated by the tribe as qualified, and so listed in the Federal Register. With very limited exceptions, BIA programs are not available to Indians in urban areas. Further, services are to be provided only if no other assistance is available: regular programs that are available to all citizens are intended to be used first. Agency offices that administer the programs are located on the reservations. The Red Lake Reservation Agency Office is at Red Lake, the Minnesota Agency serving the six MCT reservations is at Cass Lake, and the Sioux Field Office is at the Shakopee-Mdewakanton Commun- 63 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS ity. The BIA Area Office, serving reservations in Minnesota, Wisconsin, Michigan, and Iowa, is located in Minneapolis. Tribal leaders have advocated abolishing the area office level to move decision making closer to the tribes at the agency level. Other Programs Since 1955, when health services were transferred from the BIA to the Public Health Service in the Department of Health, Education and Welfare, there has been an expansion in Indian-targeted programs outside the BIA. When the American Indian Policy Review Commission on Tribal Government analyzed federal programs for its 1976 report, it found that Indian tribal governments had direct access to only 65% of some 600 program^.'^ Barriers still exist to Indian participation in programs intended to serve the general population, but several important programs now have Indian set-asides, lndian desks, or specific provisions mandating Indian participation; some of these are detailed in later chapters. Although this book focuses on rights and services that are uniquely intended for Indians, Indians are US citizens who are fully entitled to all privileges and responsibilities of citizenship; programs cannot be denied on the basis of race. When programs are designed to help lowincome, disadvantaged, unemployed, or other citizens with special needs, or when they are funded based on the numbers of those with special needs, Indians are included in the distribution formulas. They often add numbers well in excess of their percentage in the population. Are Indians being served by governments as their citizenship status and special needs entitle them to be? The researchers for this book tried to verify Indian use of the specific programs that are discussed. With very few exceptions, Indians are not receiving the help that their documented needs warrant. Poor utilization is linked to agency insensitivity to cultural differences or lack of understanding of Indians, as well as to Indian hesitancy in approaching white systems. When a program is run by Indians or oriented to their culture, it is far more succesful; the heavy use of these programs shows their value. A Hennepin County commissioner has acknowledged that "the most effective programs for Indians are those that are planned and operated by Indian~."~" Most non-indian professionals who have Indians as clients or patients admit that they do not do a good job communicating with them. What this barrier means to the Indian is recognized by some agencies. AS funding cuts in 1984 threatened the program of the Indian Health

7 64 TRIBAL GOVERNMENTS AND FEDERAL RELATIONS Board, which provides clinic services to low-income Minneapolis Indians, the chief of family practice at Hennepin County Medical Center commented that if the program were ended it "would effectively reduce the services that Indian people take advantage of. They would deny themselves needed services because of their discomfort in approaching other resource^."^' Indians are raising concerns about the fragmentation of services and the way current systems of program delivery isolate the person or problem being addressed. This kind of treatment is seen in child and family welfare services, in family abuse and battered women programs, and in mental illness and chemical dependency treatment. Because the problems being treated are not isolated, a holistic approach is urged that would involve the whole family and use the strengths of the family and the Indian community. Government Funding Practices Government programs can be subject to rapid changes in policy, funding levels, and target groups to be served; no long-term commitment is guaranteed. Such changes can have devastating effects on those abandoned or overlooked by policymakers. lndians depend on government programs for economic survival, and these changes can have great impact on their lives. Through the grant system, government, not those in need, defines the needs to be addressed. Other problems: Most grants are for a limited time, and when they end other levels of government do not usually continue funding the programs that have proved valuable. Grant distribution on a per capita basis means that reservations with small populations get so little funding that effective programs are impossible. Competition for grants puts a great burden on less organized agencies with small staffs, perhaps the ones in greatest need of funding help. The block grant system of funding from federal to state and from state to local government is opposed by most lndian tribes because their share of the funding must come from state or county governments, which have been less responsive to Indians than has the federal government. Block grants have also usually meant that less total funding is provided. CHAPTER 5 State and Local Relations; Hunting and Fishing Rights Tribal Relations with the State The role that state governments have been willing to play in the solution of Indian problems has evolved slowly. Because Indian reservations were located by federal decision within only some state bound- ' aries, those states have complained about being expected to provide aid to Indians when other states arb free of such responsibility. The 1928 Meriam report noted that several states with fairly large Indian populations still tended to regard services for the Indians as purely a federal function. In many of those states, this attitude still dominates. But the report found a few states, including Minnesota, where "governments have evidenced a growing sense of responsibility for Indian affairs." Their state departments concerned with education, health, and public welfare appreciate that it is a matter of grave concern to the state to have in its midst groups of people living below reasonable hygienic and social standards. To them the question of whether the responsibility rests on the state or on the national government is very properly being relegated to a minor place and the real question is being faced as to whether these inhabitants of the state are being fitted to be assets rather than liabilities.'