A Second Century of Dishonor : Federal Inequities and California Tribes, ch.III

Although Bureau practices have not always confined benefits authorized by the Snyder Act to reservation Indians ⁵, Bureau pronouncements have sometimes articulated an "on reservation" requirement. For example, in 1970, Assistant Secretary of the Interior Harrison Loesch wrote to the Commissioner of the Bureau of Indian Affairs, "It is a long-standing general policy of the Bureau of Indian Affairs and the Congress that the Bureau's special Federal services are to be provided only to the reservation Indians." ⁶ Where such limitations found their way into BIA manuals, tribal members who were living near reservations and functioning as part of tribal communities brought lawsuits challenging denials of benefits. In one of these cases, Morton v. Ruiz ⁷, the Supreme Court declared that the federal trust responsibility to Indian tribes required clear articulation and justification for any policy that excluded groups of Indians from benefits under the Snyder Act.

The upshot of Morton v. Ruiz was that the Bureau formalized and expanded its eligibility and priority criteria to include Indians living "near" reservations as well as those living within reservation boundaries. ⁸ In addition, the Bureau established procedures for officially designating particular areas as "near" reservations, including application of specified criteria, ⁹ and requirements of consultation with the relevant tribe and publication in the Federal Register. ¹⁰ Consequently, when the Bureau does its biannual determinations of service population and labor force, it directs tribes to identify the "Total Resident Indian Population" by adding together the Indians "within the reservation" and those "adjacent to the reservation." ¹¹

Oklahoma Indians and (more recently) Alaska Natives have received special treatment under these Bureau policies regarding geographic eligibility. In each case, the special treatment responds to a distinctive history of legal actions affecting the existence of reservations in that state. For example, the Bureau has taken account of the fact that Oklahoma reservations (but not tribes) were abolished near the turn of this century, by defining "reservations" to include "former reservations in Oklahoma." ¹² Furthermore, the Bureau has accommodated the fact that Congress in 1974 established a regime of regions and Native villages in Alaska in lieu of reservations, by defining the term "reservations" to include "Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act." ¹³ As a consequence of such special treatment, there is a close approximation between the census statistics for Indian population in those states and the Bureau's figures for service population. ¹⁴

In California, by contrast, the BIA service population statistics and the census figures for all Indians in the state diverge widely. For 1990, the census shows 236,078 Indians living in California. For 1989 (service population is compiled in odd years only), the Bureau's service population is only 12 percent of that figure, or 28,815. This discrepancy has existed for many decades. Thus, while the census counted 91,018 Indians in California in 1970, approximately 45,000 of them native California Indians, the Bureau's 1971 service population was only 6,100, or 7 percent of the census figure. Why have so many Indians in California been excluded from the Bureau's service population?

One hypothesis is that the Bureau's counting methods are seriously biased toward members of local tribes, leading to understatement of the total number of Indians. The standard protocol is for the Bureau to circulate forms to individual tribes, asking tribal leaders to identify the resident Indian population on and adjacent to the reservation. Tribal leaders may indeed find it easier to identify tribal members than non-member Indians. While these non-member Indians may be eligible for federal services, they may simply not be counted for service population purposes because the tribal counters don't know who they are. The difficulty with this hypothesis is that a count of California Indians from the 1990 census still produces a figure that is more than double the 1989 Bureau service population count, or 59,011. ¹⁵ Thus, even counting only California tribal members, the service population numbers should be considerably higher than they are. One significant reason why the Bureau's service population figures do not include even all tribal members is that tribes lack staff and resources to undertake their population surveys. If resources were provided and tribes were given incentives to count all Indians, the numbers would doubtless rise even higher.

Another hypothesis that might explain the disparity between service population and census figures in California is that large numbers of California's Indians do not live "on or near" a reservation. ¹⁶ In fact, the census allows us to determine the number of Indians who live in rural parts of counties in which reservations are located, an approximation of the "on or near" reservation category. For 1990, that figure is 70,860, or approximately two and one half times the 28,815 service population for 1989. Thus, even accepting the Bureau's definition of service population areas, there is a serious undercount in California. This undercount means, in turn, that California Indians are denied their appropriate share of federal benefits, at least when such benefits are allocated on the basis of population numbers. ¹⁷

Even a figure that is two and one-half times the service population count in California would not necessarily provide the most appropriate tally of Indians for purposes of assessing funding equity, however. There is good reason to question whether the "on or near" limitation ought to be applied at all to members of indigenous California groups. And if that limitation were relaxed, the number of Indians moves closer to the 236,078 figure for statewide Indians in the census or, if one excluded the 54,440 Indians in Los Angeles, San Francisco, and Alameda (Oakland) counties, 181,638. Excluding these large cities makes some sense if the focus is on indigenous California Indian groups, because masses of Indians from tribes outside of California were relocated to the Los Angeles and San Francisco Bay areas during the 1950s. It is also true, however, that members of indigenous California groups live in these cities as well. ¹⁸

Should the "on or near" limitation be applied to California Indians? As discussed above, such a criterion was not in force in the early years of federal responsibility for California Indians. Indeed, in 1970, a Bureau official filed a sworn affidavit in the course of litigation, in which he stated, "There has been no instance where a California Indian, otherwise eligible, was denied available federal boarding school or scholarship assistance by the Sacramento Area Office for failure to meet the 'on or near' criteria in the regulations." ¹⁹ In the post-Snyder Act period, however, the Bureau has in fact invoked the "on or near" limitation to restrict service population counts and eligibility for California Indians. As a consequence, many federal officials and Indian advocates have argued that special treatment is warranted for California Indians, just as it has been instituted for Oklahoma Indians and Alaska Natives. This special treatment could be provided either by an expansive interpretation of the terms "on or near" (for example, to include all counties in the state where trust lands are located, or even to include the entire state), or by dropping the requirement of "on or near" altogether.

The case for such special treatment rests on the distinctive and tragic history of loss of California Indian lands. California Indians left their traditional homelands between 1851 and 1853 and moved to eighteen large areas, comprising over 8 million acres, promised as reservations in treaties that tribal representatives and federal agents had signed. The Senate refused to ratify the treaties, however; and non-Indians soon laid claim both to the traditional Indian homelands and to the lands promised the Indians in the unratified treaties. Courts then failed to protect the Indians who sought to remain on or return to their historic lands. Thus the tribes were left homeless, dispersed, and starving. Between 1870 and 1930 the federal government created approximately one hundred small reservations and established numerous public domain allotments as homelands for the native California population. But these areas were too small, too remote, too arid, and too unsuitable for occupation or habitation to accommodate the entire native population. As Senator Henry Jackson stated in 1971,

[B]ecause of the events of history, California Indians are dispersed throughout rural areas of the State rather than being concentrated on several clearly defined reservations. Those historical circumstances also limited the number of acres of trust land available to the Indian people. Thus, only a small percentage actually live on trust land, and [thousands of other] Indians whose socioeconomic problems are no less severe, do not relate to a trust land base." ²⁰

In 1970, for example, the Sacramento Area Director recommended that eligibility be extended to "all Indians (outside of those residing in the San Francisco Bay Region and the Los Angeles Area) presently resident in the State of California who are descendants of Indians residing in the State on June 1, 1852." ²²

In 1972, Senator John Tunney of California testified before the Subcommittee on Interior of the Committee on Appropriations that the Interior Department should serve all California Indians, regardless of residence. "At the very minimum," he said, "California rural off-reservation Indians should immediately be declared eligible for services by the Bureau of Indian Affairs." ²³

A 1973 Interior Department Task Force concluded that all native California Indians were eligible for BIA services, but were being served on a budget that was designed to reach a target population consisting of reservation Indians only -- one-sixth of the statewide native California Indian population. According to this report, "It is obvious that the true target population [of all native California Indians] must be formally recognized and the appropriations allocated to permit services on a realistic level. ²⁴

A 1984 directive from the Assistant Secretary, Indian Affairs to the Sacramento Area Director charged the Area Director with conducting "a total reassessment of the California BIA Indian service population estimates assuring use of the 'on or near reservation' concept," and declared the Assistant Secretary's belief that "in most instances the 'near reservation' population in California could well be defined as that located within the county in which the reservation or rancheria is located." ²⁵

The Indian Health Service of the Department of Health and Human Services (IHS), has promulgated expansive criteria for California Indians in order to implement 1988 amendments to the Indian Health Care Improvement Act of 1980. ²⁶ In those amendments, Congress defined eligible "California Indians" to include members of federally recognized tribes, holders of trust allotments, and distributees under the California Indian land settlement and their descendants, regardless of their geographic residence within the state. Not surprisingly, the service population calculated by the IHS is significantly larger than the BIA-calculated service population. In 1991, for example, when the IHS service population in California was 88,675, the BIA's was only 36,511. By 1994, the IHS's figure for California had risen to 113,465, while the BIA's 1993 service population number was only 45,565. This wide discrepancy even predates the 1988 amendments to the Indian Health Care Improvement Act, largely because the IHS has been authorized to designate states, counties, and towns as "Health Service Delivery Areas (HSDA's)," rather than reservations, where reservations are nonexistent or so small and scattered and the eligible Indian population so widely dispersed that it is inappropriate to use reservations as the basis for defining the HSDA. ²⁷ IHS estimates are made by counting those Indians (as identified during the Census) who reside in the geographic areas in which IHS has responsibilities, including "on or near reservations" and HSDA's. ²⁸ Thus, in 1985, the IHS counted 73,893 Indians in its service population for California, and the BIA's comparable figure was only 25,263. While the IHS does not distribute funds solely on the basis of service population, ²⁹ it is evident that the figures it takes into account are quite different from and much higher than the Bureau's.

The Department of Health and Human Services also provides expansive coverage of California Indians in its recent regulations for block grants for child care services. According to these regulations, in determining whether a tribe has 50 or more children (the amount needed to qualify for a block grant), the agency "will include children who live on or near a reservation, with the exception of Tribes in Alaska, California, and Oklahoma." ³⁰

In the Department of Education, the Office of Educational Research and Improvement administers the Direct Grant Programs for Indian Tribes and Hawaiian Natives, which operate under the Library Services and Construction Act. According to the statute, "The provisions of this title requiring that services be provided on or near Indian reservations, or to only those Indians who live on or near Indian reservations, shall not apply in the case of Indian tribes and Indians in California, Oklahoma, and Alaska." ³¹ Thus California Indians, like those in Oklahoma and Alaska, are included regardless of where they reside within the state.

Also in the Department of Education, the Indian Controlled Schools Enrichment Program, authorized by the Indian Education Act, provides funding to schools serving Indian children. Ordinarily, these schools must be located "on or near" a reservation. In 1988, Congress amended the Indian Education Act to exempt schools serving Indian children in California, Oklahoma, and Alaska from that geographic constraint. ³²

                                                              #                  %*

1989 BIA Service Population for CA                          28,815              3.0

1993 BIA Service Population for CA                          45,568              3.8

1990 Census Indians in CA from CA tribes                    59,011              6.0

1990 Census Indians in rural parts of CA counties           70,860              7.2

1991 IHS Service Population for CA                          88,675              8.3

1994 IHS Service Population for CA                         113,465              9.0

1990 Census Indians in CA outside LA & SF Bay Area         181,638             16.5

1990 Census Indians in CA                                  236,078             20.4

Any descendant of an Indian who was residing in California on June 1, 1852, but only if such descendant is living in California, is a member of the Indian community served by a local program of the [Indian Health] Service, and is regarded as an Indian by the community in which such descendant lives.

Any Indian who holds trust interests in public domain, national forest, or Indian reservation allotments in California.

Any Indian in California who is listed on the plans for distribution of the assets of California rancherias and reservations under the Act of August 18, 1958... [the statute that attempted to terminate numerous California rancherias], and any descendant of such an Indian. ³⁹

1. Funds for some federal Indian programs, such as programs for forestry management and land conservation, should not be distributed on the basis of population. Rather, distribution should depend on the presence or absence of resources as to which the federal government has a trust obligation. See infra.
2. Since California comprises an entire area office of the BIA, it is possible to juxtapose the federal dollars that reach California Indians with the federal dollars that reach Indians in other parts of the country.
3. For references to and discussion of these reports, see Section II of this report, supra.
4. Report of the Commissioner of Indian Affairs for 1866 at 94.
5. 1973 Interior Department Task Force, Ernest Stevens and John Jollie co-chairs at 12-14.
6. Loesch ascribed this policy to treaty provisions and to the inability of states to raise funds for benefit programs by taxing reservation lands. In fact, few Indian treaties prescribe the range of benefits provided under the Snyder Act. Furthermore, many Indians who live on reservations, such as members of California tribes, have no ratified treaties with the federal government.
7. 415 U.S. 199 (1974).
8. See, e.g., 25 C.F.R. secs. 20.20(a)(3) (social services programs); 26.5 (employment assistance services); 31.1 (enrollment in BIA boarding schools). The Bureau's choice of "on or near" the reservation echoes legislation that Congress passed in 1956 regarding vocational training programs for Indians. The purpose of this statute, 25 U.S.C. sec. 309, is "to help adult Indians who reside on or near reservations to obtain reasonable and satisfactory employment...." See 25 C.F.R. sec. 27.5 for the implementing eligibility criterion.
9. The criteria set forth are are follows:
(1) Number of Indian people native to the reservation residing in the area,
(2) a written designation by the tribal governing body that members of their tribe and family members who are Indian residing in the area, are socially, culturally, and economically affiliated with their tribe and reservation,
(3) geographical proximity of the area to the reservation, and
(4) administrative feasibility of providing an adequate level of services to the area.
10. See 20 C.F.R. sec. 20.1(r).
11. Form 5-2119, Department of Interior, Bureau of Indian Affairs, December 1993.
12. See, e.g., 25 C.F.R. sec. 20.1(v). Many of the tribal members in Oklahoma had been given allotments of land, carved out of the reservation land base and placed in trust for a period of years, late in the nineteenth century. Although large numbers of these allotments found their way into non-Indian ownership through fraud and tax sales, some continued in trust status even after the reservations were abolished.
13. Id.
14. The 1989 BIA service population for Oklahoma was 231,952, and the 1990 Census population for Oklahoma was 252,089.
15. This number was arrived at by compiling the number of Indians who identified themselves as belonging to an indigenous California tribe (49,254), and then adding to that number an appropriate fraction of all Indians from California who failed to report or specify their tribal affiliation (a total of 39,035). The fraction used was 25 percent, because 25 percent of all Indians in California who did identify their tribal affiliation indicated an indigenous California tribe. Adding 25 percent of 39,035 (9,758) to 49,254 yielded the figure of 59,011.
16. Since the Bureau began formally designating areas as "near" a reservation, no areas in California have secured that status. In counting service population, however, the Bureau does not seem to differentiate between "adjacent" areas that have been formally designated and those that have not.
17. To compile the service population data in California, the Bureau relies on forms filled out by the tribes themselves. Many of these tribes lack the staffing and expertise to conduct a thorough survey.
18. The Gabrielino/Tongva tribe, for example, is an unrecognized group that is indigenous to the Los Angeles basin.
19. This affidavit was introduced into the Congressional Record by Senator Alan Cranston in 1971. Congressional Record S21326 (December 11, 1971).
20. Congressional Record S21327 (December 11, 1971).
21. Memorandum from Roderick H. Riley, Assistant to the Commissioner, to the Commissioner of Indian Affairs, May 13, 1971.
22. Memorandum from BIA Sacramento Area Director William Finale to the Commissioner of Indian Affairs, August 14, 1970.
23. Congressional Record, S8591, May 31, 1972.
24. 1973 Interior Department Task Force, Ernest Stevens and John Jollie co-chairs at 33.
25. Memorandum from the Assistant Secretary, Indian Affairs to the Sacramento Area Director, January 31, 1984.
26. 25 U.S.C. sec. 1679.
27. 42 C.F.R. sec. 36.15(c).
28. Letter from Michael H. Trujillo, Director IHS to Carole Goldberg-Ambrose, November 16, 1995. Trujillo goes on to explain that service populations between census years are estimated by a smoothing or averaging technique in order to show a gradual transition between the two periods.
29. See IHS Circular 92-5.
30. 56 Federal Register 26194 (June 6, 1991), codified at 45 C.F.R. sec. 98.80(e).
31. 20 U.S.C. sec. 366, implemented in 34 C.F.R. part 771.1.
32. See 100 P.L. 297; 102 Stat. 130, sec. 5312(2)(B) (1988).
33. The words "at least" are used because the 70,860 figure is from the 1990 census, and there may well have been some population growth or decline between 1990 and 1993.
34. See, e.g., Indian Financing Act of 1974, 25 U.S.C. sec. 1452(b).
35. See, e.g., 25 C.F.R. sec. 40.1 (regarding eligibility for higher education grants and loans).
36. See, e.g., Zarr v. Barlow, 800 F.2d 1484 (9th Cir. 1986) (striking down the one-quarter degree blood quantum requirement for higher education grants and loans as applied to members of federally recognized tribes).
37. See Section XIV of this report, infra.
38. 38 F.3d 433 (9th Cir. 1994).
39. 25 U.S.C. sec. 1679(b).