I. EXECUTIVE SUMMARY
REPORT TO ADVISORY COUNCIL ON CALIFORNIA INDIAN POLICY
For over 100 years, studies conducted by federal, state, and private agencies have reached the same conclusion: California Indians are not receiving a fair share from federal Indian programs; and because they have received less support from the federal government, California Indians have suffered in social-economic well-being relative to other Indian groups in other states.
The well-documented reports reaching this unanimous conclusion have come from both Republican and Democratic administrations, as well as from non-profit organizations. In the 1920s, for example, the Commonwealth Club of San Francisco used Indian Bureau figures to show that annual expenditures were $29.00 per capita for California Indians, and $40.00 or $66.00 (depending on who was included) for all other Indians. In the 1970s, studies by the state of California and reports commissioned by the BIA likewise demonstrated that per capita spending for California Indians was below that in other areas. For example, in 1975, per capita spending for California Indians was $309.97 of the total Bureau allotment, while spending in the Minneapolis Area was $859 per person and spending in Portland averaged $1,576 per person.
Inequity toward California Indians appears in Bureau of Indian Affairs allocations per capita even, as above, when we employ the Bureau's own service population data. The degree of inequity is understated, however, if the Bureau systematically undercounts California Indians. In view of the wide disparity between the Bureau's California service population count for 1989 - 28,815 - and the 1990 census count for California Indians - 236,078 - there is indeed reason to doubt the Bureau's criteria for counting service population as applied to this state.
The history of federal policy toward California Indians affords insight into the weaknesses of the Bureau's service population criteria. In particular, the failure of the federal government to ratify the 1852 treaties it negotiated with California Indians and to establish a suitable reservation land base for them means that the general criteria limiting service population to Indians "on or near reservations" should not be applied in California. For analogous reasons, this geographic criterion is currently not applied to Indians in Oklahoma and Alaska. Even the limitation of service population to members of recognized tribes is suspect in the context of California history. In California, individuals who participated in claims awards based on past deprivation of land can prove that the federal government views them as Indians, even though the Bureau refuses to recognize their tribal groups. These individuals deserve to be included in the service population.
Agencies of the federal government other than the Bureau of Indian Affairs have begun to modify their eligibility criteria for benefits, and hence their definition of the service population, to include offreservation California Indians and members of unacknowledged tribes. Illustrations include the Indian Health Service (administering broadly inclusive language from the 1988 amendments to the Indian Health Care Improvement Act) and the Department of Education's Indian Controlled Schools Enrichment Program, authorized by recent amendments to the Indian Education Act that exempt California, Oklahoma, and Alaska Indians from geographic criteria.
If more appropriate service population criteria were applied to California Indians, the service population would at least double. For example, the 1990 census figure for Indians living in rural parts of California counties containing Indian reservations is slightly more than double the 1989 Bureau service population figure for California. Similarly, the 1991 Indian Health Service service population figure for California is slightly less than double the 1993 Bureau service population figure for the state. Accordingly, in presenting data that document current inequities in federal allocations for California Indians, we calculate per capita expenditures using not only actual Bureau service population statistics, but also the more appropriate figures that are twice those employed by the Bureau.
Since we argue that California Indians are undercounted by a factor of 100 percent, the funding inequity for California Indians is doubled. We calculate that in 1994 "real" per capita funding for Sacramento was $350.15 compared with $1,310.51 for all other reservation Indians. For the 1990-1994 years, California Indians were funded at a rate of 1/4th of all other Indians. Restoring the California Indians to funding levels comparable to BIA-served Indians in other states will require at least a two-fold increase in Sacramento's Operation of Indians Program funding. Many programs such as tribal courts and BIA education programs are grossly underfunded and may need increases in California funding as high as seven times 1995 allocation rates in order to gain parity with other areas and Indian tribes. Such increased funding will restore equality in funding but will do little to rectify past years of systematic underfunding and undercounting.
Our own analysis of budget data from the 1980s and 1990s confirms that these inequities have persisted. Using the most comprehensive funding category, Operation of Indian Programs, and the BIA's official service population figures over the past five years (1990-94), California Indians are receiving only one-third to one-half the funding received by all other Indians. In 1994, for example, Sacramento's per capita funding was $700.30 while the rest of the BIA-served Indian population enjoyed per capita funding of $1,310.51. Similarly funding from the Indian Health Service for California Indians is about 30-40 percent less than the national average over 1988 through 1995. Housing and Urban Development Indian Housing programs also show a systematic underfunding over the last decade.
The BIA underserves the Sacramento area in administrative attention compared to other BIA areas. The area office serving California Indians has the smallest square footage of office space and one of the lowest shares of BIA personnel.
Two case studies of particular federal programs demonstrate the historic neglect of California tribes, and the adverse consequences of that neglect which persist to this day. In the case of general assistance welfare, federal officials have consistently abdicated responsibility to an inadequate state system of general assistance. Public Law 280, the 1953 law that gave criminal and civil jurisdiction to the state of California, has been invoked, improperly, as an excuse for such abdication. As a result, California Indians long were entirely excluded from a federal program that distributed over $50,000,000 to Indians in 1990 alone. Only in the last year or two have funds begun to trickle into California, largely because an enterprising Bureau official pointed out inadequacies in most counties' general assistance programs. Even so, currently less than 1 percent of all federal general assistance funds is going to support California Indians, who comprise approximately 12 percent of all Indians nationwide.
In the areas of law enforcement and tribal courts, California Indians have also been largely excluded from Bureau support. During the first 100 years of federal responsibility for California Indians, funding for such activities was never robust, leaving Indians in the state vulnerable to trespass, theft, and criminal elements. After the enactment of Public Law 280, however, Bureau funding disappeared almost entirely, as California tribes were abandoned to state criminal and civil justice systems. While the Bureau has been pumping more than $60,000,000 into these program areas nationwide, California tribes have never seen more than $500,000 in any one year -- and most of that money has been diverted from urgently needed education programs in the state. Not surprisingly, tribal courts and police forces are exceedingly rare among the more than 100 California tribes, even as these institutions have taken root and flourished on reservations elsewhere in the country.
None of the Bureau's justifications for excluding California from law enforcement and tribal courts funding can withstand scrutiny. The Bureau's first justification -- that tribes lack concurrent jurisdiction because of Public Law 280 -- has been rejected by courts and attorneys general at the federal and state levels. The second proffered justification -- that California's tribes are not "historic" tribes with inherent jurisdiction -- has been recently repudiated by the Congress. The third justification -- that tribes are adequately served by state law enforcement and courts as a result of Public Law 280 -- is belied by gaps in the coverage of Public Law 280 as well as the documented failings of state jurisdiction as applied on reservations. To use the state's jurisdiction as a justification for not funding California tribes overlooks the treatment of tribes in other Public Law 280 states, the absence of state jurisdiction over important matters of public safety and community welfare, and the inadequacies of state jurisdiction even where it exists.
The dearth of federal funding for these and other programs in California has diminished the social and economic welfare of California Indians relative to Indians elsewhere in the country. When compared to non-California reservation Indians, California Indians have higher rates of poverty, lower household income, slightly less education, less post-secondary education, and higher rates of unemployment. Only in household characteristics do California reservation Indians do better than non-California reservation Indians. These combined indices of adverse socioeconomic conditions puts California reservation Indians among the lowest socioeconomic groups in Indian country. Since Indians are already among the lowest socioeconomic groups in the country, California Indians are among the most economically deprived groups in the nation. The past and present history of administrative neglect and underfunding most likely has contributed to the adverse socioeconomic position endured by California reservation Indians.
1. In determining the total Indian service population for California, the Bureau of Indian Affairs should eliminate its strict adherence to the "on or near reservation" requirement, and should count all members of unrecognized tribes who meet eligibility standards under the 1988 amendments to the Indian Health Care Improvement Act. Recommended alternatives to the current method for counting California service population are (1) include all Indians counted by the census as residing in counties in which reservations are located, adjusting census figures to accommodate population changes between census counts, or (2) rely upon the service population figures produced by the Indian Health Service. Using either of these methods, the current service population for California should increase from 100 percent to 200 percent.
2. In allocating budget funds for programs of individual benefits (e.g., scholarships, welfare), Congress and the Bureau of Indian Affairs should increase amounts directed to the Sacramento Area Office to insure that per capita spending for California at least equals the national average per capita spending. Per capita spending for California should be calculated taking into account the new method for determining service population, recommended above.
3. Congress and the Bureau of Indian Affairs should allocate all necessary funds to determine the number of Indians in California who are eligible for the Bureau's general assistance welfare benefits under the Snyder Act. All such eligible individuals should be provided with these benefits in the next budget cycle.
4. Congress and the Bureau of Indian Affairs should allocate adequate funds for the planning, establishment, and ongoing operation of tribal law enforcement and justice systems in California, where tribes request such assistance. Such systems may take the form of individual tribal institutions, consortia, special-purpose entities, or contracts with state or local agencies. Particular attention should be given to support for tribal initiatives in the area of child welfare, environmental control, housing and evictions, and drug law enforcement. There should be no requirement that these systems resemble non-Indian law enforcement or judicial institutions, so long as they comply with applicable federal law. Once such tribal systems are established, they should receive Bureau of Indian Affairs funding support at per capita levels that are comparable to average per capita funding for tribal law enforcement and justice systems outside California. Per capita spending for California should be calculated taking into account the new method for determining service population, recommended above.
5. Congress should allocate new funds so that Bureau of Indian Affairs funding for California under the Johnson-O'Malley program can be approximately tripled, enabling the full number of eligible children to be served.
6. The Bureau of Indian Affairs should revise its eligibility criteria for higher education scholarships so that all California Indians who qualify for benefits under the 1988 amendments to the Indian Health Care Improvement Act are also eligible for higher education scholarships. These eligibility criteria should also be revised to clarify that California Indians need not reside "on or near" a reservation in order to qualify for such scholarships. Once these eligibility criteria are changed, Congress and the Bureau of Indian Affairs should increase funding for scholarships for California Indians so that per capita spending for California approximates national per capita expenditures. Per capita spending for California should be calculated taking into account the new method for determining service population, recommended above.
7. Congress and the Bureau of Indian Affairs should undertake a major initiative to establish day schools and boarding schools in California under contract with California tribes and serving California Indian children. Consortia of tribes or individual tribes should be solicited to participate. Bureau funding for such schools in California should be increased so that per capita spending for California approximates national per capita expenditures. Per capita spending for California should be calculated taking into account the new method for determining service population, recommended above.
8. Congress and the Bureau of Indian Affairs should allocate planning grants for at least two new tribally controlled community colleges in California. As new colleges are established, Bureau funding for tribally controlled community colleges in California should be increased so that per capita spending for California approximates national per capita expenditures. Per capita spending for California should be calculated taking into account the new method for determining service population, recommended above.
9. The Department of Education should undertake a study to determine whether the total amount spent on Impact Aid funding for California is appropriate given the actual size of the population living and working on California Indian lands.
10. Congress should pass legislation authorizing each California tribe to initiate retrocession of Public Law 280 jurisdiction from the state of California back to the federal government, either in whole or in part. This legislation should also establish a federal commitment to fund and provide technical support for development of law enforcement and justice systems in California as described in Recommendation 4, supra. Furthermore, Congress should clarify that tribal civil and criminal jurisdiction are concurrent with state jurisdiction where Public Law 280 is in effect.
11. Congress should pass legislation for a comprehensive restoration of land to California Indian tribes. Congress should allocate funds to purchase and/or allocate public land to augment the California Indian tribal land base to a total of 3,241,000 acres, including the present 463,000 acres. Such a land allocation will make California Indian land holdings on a per capita basis near the average for all Indian land holdings, which is 59.2 acres per person. Congress should return all unused federal lands in the state of California back to the control of Californian Indians. The Bureau of Indian Affairs should be instructed to recognize the historical and disproportionate loss of land to California Indians, and special provisions should be made to equitably compensate California Indians in any federal or BIA funding distribution formulas that depend heavily on land base size. Newly restored tribes that who were previously terminated and newly recognized tribes should be granted land bases of at least 60 acres per tribal member. Special allocations of land should be set aside in anticipation of future recognition of many currently nonrecognized California tribes. Congress should make sure that the new lands reclaimed by California Indians have access to water and roads, and that the lands are useful for general economic development.
12. Congress should pass legislation that ensures that the Bureau of Indian Affairs, the Indian Health Service, Housing and Urban Development administration, and all other federal agencies are funding California Indian tribes at levels comparable to national averages for Indians. Per capita spending for California should be calculated taking into account the new method for determining service population, recommended above. Congress should make special allocations for BIA programs, IHS services, and to HUD that specifically benefit California Indians as a means to compensate California Indians for decades of proportionate underfunding. These funds should be used to build tribal administrative infrastructures, develop and fund program consortia for small tribes, and should be aimed at alleviating the chronic poverty, housing, unemployment, and health service inequities suffered by California Indians. Target compensatory funding levels might be indicated by adding shortfalls from the national average over recent historical time periods. For the past decade when compared to national averages, HUD shortfalls total between $11.5 million, when considering a 100 percent undercount, and $23 Million, when considering a 200 percent undercount of California Indians. Since the early 1980s, when compared with national funding averages, BIA shortfalls for California Indians total between $80 million, when considering a 100 percent undercount, and $160 million for a 200 percent undercount. IHS short falls total at least $150 million for the past dozen years. Shortfalls for other federal agencies should also be investigated and appropriate compensations made.
13. Congress should pass legislation and appropriate funds in order to build schools for California Indian communities, and provide tribal governments with adequate administrative buildings and facilities. California school and administrative space should be brought up to national averages for all Indians. Congress should increase administrative and school building space to 75 times current levels from 18,160 square feet to 1,362,000 square feet. Since 86 percent of all BIA buildings are used for educational purposes, about 1,171,320 square feet of the new space should be targeted for school buildings. All new building facilities should be earmarked for tribal governments and local reservation and rancheria communities in order to assist them in developing tribal infrastructures and enhance greater self-government. Adequate funds for maintenance should be allocated on an annual basis.
14. Congress should formally recognize that California Indians are economically disadvantaged within U. S. society and pass special legislation and program initiatives to alleviate the high rates of poverty, unemployment, low income, and low rates of completing post-secondary education found disproportionately among California Indians compared with other Indians and with all other groups within the United States.
15. For small California tribes Congress should guarantee base funding at levels of at least $200,000 for tribal government programs and administrative programs.
16. Congress should pass legislation and appropriate funds, and the BIA should negotiate adequate base funding levels for California Indian tribes for such needed programs as Indian child welfare services, Aid to Tribal Government, small tribes funds, schools, Housing Improvement Program (HIP), community fire protection, tribal courts, higher education, adult education, tribal rights protection, land acquisition, road building and maintenance, water rights, legal services, and realty services and for provision of more technical services. Furthermore, federal agencies should negotiate and provide adequate base funding for needed and highly valued programs such as USDA Commodity Programs, Title VI Administration for Aging Programs, Headstart, Administration for American Indians, Department of Health and Human Services Programs. Funding should be made more directly to tribal governments, with fewer layers of BIA or federal administrative bureaucracy, and technical assistance should be provided when asked for by tribes.
17. Congress should pass legislation authorizing significantly increased funding to enable California Indian tribes to revise their constitutions and legal codes in order to enhance self-governance and address changing economic, legal, and political conditions. A program should be created to provide funds and technical assistance to all tribes that believe they must revise their constitutions and legal codes.
18. The state of California should give greater funding attention to California tribes and pass legislation and funding for programs in education, juvenile justice, antidrug abuse, and real estate services to help with land acquisition according to HUD guidelines. The state of California should create an office of California Indian affairs, which would advocate for California Indian issues and legislation within California state government, and provide a regular liaison between the state of California and the California Indian tribes.