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

VII. Case Study in Funding Inequity
General Assistance Welfare


Before Congress enacted the Snyder Act of 1921, the federal government appropriated funds to Bureau of Indian Affairs agency superintendents on an ad hoc basis to supply basic needs of Indians under their purview. Sometimes these payments for food, clothing, and supplies fulfilled treaty obligations; sometimes they simply addressed pressing human needs. California Indians were among the beneficiaries of these allocations, although every year the demand for funds for care of the old, destitute, sick, and helpless Indians in the state exceeded the allowance. 2 Sometimes California counties were willing to take up the burden of care for local Indians; more often, they declined, especially if the Indians resided on trust land. The state and counties felt little or no responsibility for the federal "wards."

The Snyder Act ushered in an era of more regularized federal appropriations, provided under the terms of that statute for "the benefit, care, and assistance of Indians throughout the United States" and for "relief of distress and conservation of health." In fact, the Snyder Act was designed to provide general authorization for such appropriations. For the next 23 years, however, amounts appropriated for California Indians continued to be unsystematic and inadequate. 3 Moreover, by BIA fiat, off-reservation Indians were excluded from benefits, leaving the largely landless California tribes bereft of help.

In 1944, the Bureau began to grant cash payments, using Snyder Act funds, as part of a general assistance program. 4 The program was known as "general assistance" to distinguish it from "categorical assistance," which is available through joint federal-state programs only to people who fit into carefully defined categories such as the elderly, the disabled, and families with dependent children.

For its first thirty years, this Bureau general assistance program was administered without formal regulations. Only an unpublished BIA manual set forth the eligibility requirements. According to these manual provisions, the program was residual in nature -- only when other federal, state, or tribal programs failed to provide benefits would Bureau general assistance become available. 5 Other important limitations on Bureau assistance were the requirement that recipients live on reservations (a large obstacle for California Indians), and the use of state formulas to establish benefit levels. 6 In 1974, the Supreme Court decided Morton v. Ruiz, 7 a case that challenged the restriction of benefits to Indians living on reservations. The plaintiff's claim was that if the Snyder Act authorized benefits for Indians without regard to their place of residence, the Bureau's policy must be equally inclusive. In ruling against the Bureau, the Court refused to go that far. Instead, it focused on the absence of regulations promulgated in accordance with appropriate procedural formalities, and sent the matter back to the agency.

In the late 1970s, not long after the Court's decision in Morton v. Ruiz, the current regulations governing Bureau general assistance were instituted. 8 While widening the eligible group to Indians living "on or near" reservations, it retained the concept of residual benefits. Benefits were to be denied if the state has "a general assistance program available to meet the needs of eligible citizens, including the needs of Indians." 9 And a state general assistance program was deemed "available" if payments could be extended to reservation Indians throughout the state; the state either appropriated necessary funds or mandated counties to appropriate such funds taking into account their resources; and payments were directed to meeting "monthly minimum essential needs on a continuing basis." Benefit levels were to be determined in accordance with the standard for Aid to Families with Dependent Children (one of the categorical programs) in the recipient's state.

General Assistance Welfare and California Indians

For the last 42 of its 50 years of existence, the Snyder Act general assistance program has not benefited a single California Indian. The 1995 fiscal year was the first to see even a trickle of such money into the state. Given that over $50,000,000 in general assistance was distributed in 1990 alone, 10 and this amount has risen to $105,000,000 in FY 1995, the significance of excluding California Indians is tremendous. The saga of how this came about is instructive.

At the time the Snyder Act general assistance program was inaugurated, non-Indians concerned with the plight of California tribes were advocating decreased federal administration of benefits. To take the place of federally administered benefits, they supported increased federal support for state-administered programs. This movement found justification in high federal overhead expenses that seemed to duplicate state bureaucracies; the relative prosperity of California as compared with many other states; the high percentage of landless, off-reservation California Indians; and (related to the preceding point) the extent of assimilation already "achieved" by Indians in the state. Federal "wardship" was viewed not only as an obstacle to Indians' progress, but also as a cruel hoax in view of the meager assistance offered by the federal "guardian." 11 An organization founded by non-Indians and Indians in Southern California, called the Mission Indian Federation, actively espoused these same positions. 12

By 1940, California had begun assuming responsibility for many of the social services previously provided by the Bureau, and the number of Bureau staff positions had been stripped down to almost nothing. 13 Over the next decade, the two agencies of the Bureau in Southern California were abolished, and a subcommittee on the Interior Department of the House Appropriations Committee even voted to delete from the appropriations bill to the Interior Department the sum of $2,647,871, the total necessary for operations of the Bureau in California for fiscal year 1950-51. 14 Indians and non­Indians alike seemed to be orienting themselves toward a future in which tribes would be terminated or at the very least the state would assume civil and criminal jurisdiction on reservations. In that environment, the Bureau ended all welfare payments to indigent California Indians in 1952. 15

The promise of state jurisdiction was realized in 1953, when Congress passed Public Law 280. Although the new law did not abolish the federal trust status of tribal lands, federal recognition of tribal governments, or the federal trust responsibility toward Indian people, federal and state practice effectively denied these ongoing federal duties, including duties to provide income maintenance and social services. This consequence was felt with particular force in California, even though Public Law 280 identified four other states that would also assume civil and criminal authority. Two factors likely contributed to the stronger effect of Public Law 280 in California. First, of all the states named in the Act, California was the only one that constituted an entire subdivision of the Bureau. In contrast, other states named in Public Law 280 were part of Bureau subdivisions that encompassed several states, some of which were not covered by Public Law 280. Thus, it was easier for Bureau officials in California to reshape their concepts and practices radically in the wake of Public Law 280. For example, the Sacramento Area Office of the Bureau could be allocated no general assistance money at all, whereas the area office in Portland (serving Oregon, a state named in Public Law 280 and Washington, a state that was not named) would be allocated some general assistance funds regardless of the passage of Public Law 280. Second, Public Law 280 was originally fashioned as a bill for California alone. Only as the bill made its way through the legislative process did members of Congress determine that it ought to be more comprehensive. Since California was the model and motivator for Public Law 280, Bureau officials naturally would seek to achieve the law's objectives most fully in that state.

Thus, although Public Law 280 did not require that general assistance to California Indians be denied, it came to be used (improperly) as an explanation for the absence of such benefits. 16 Simultaneously, Public Law 280 negated some excuses that the state and its counties had offered for refusing to provide services to tribal members. In the case of general assistance, which is a state-mandated but county-supported program, Public Law 280 countered an argument that some counties had been advancing to justify refusing aid. San Diego County, for example, had argued that local reservation-based Indians did not qualify for general assistance because they were not "residents" of the county, by virtue of their status as federal "wards." San Diego's argument rested in part on the claim that the federal government's authority over reservation Indians ousted state and local jurisdiction over activities within the tribal territory. The passage of Public Law 280 drained all force from this argument, by conferring civil and criminal jurisdiction on the state; and in 1954, a California appellate court decided Acosta v. San Diego County, which ordered the county to include reservation-based tribal members within its general assistance program. 17 The fact that Public Law 280 figured into this decision reinforced the erroneous view that Public Law 280 had nullified federal obligations to provide welfare benefits. In fact, all that the court had done was to make county benefits available. Federal benefits were displaced only if the availability of county benefits satisfied federal requirements.

For decades following the Acosta decision, federal and state officials assumed that the existence of California's county general assistance program meant that California's Indians had "available" to them general assistance to meet their needs, within the meaning of the federal regulations. Thus, presumably, California Indians were not eligible for federal general assistance. Two federal court decisions of the 1980s, however, signaled that state and local general assistance programs would be scrutinized carefully to determine whether their eligibility standards were in fact "comparable" to the requirements for B.I.A. general assistance. 18 If an Indian eligible for federal assistance could not meet the standards for county assistance, then county assistance would not be deemed "available" to such an individual. In one such case, for example, county general assistance was available to pregnant women and to the disabled, but not to "employables." Because B.I.A. assistance was available to "employables" so long as they were actively seeking employment, the court ruled that the Bureau must extend its welfare benefits to such individuals.

Soon thereafter, California tribes began pressing for B.I.A. general assistance funding. The Southern Indian Health Council, as well as several individual tribes, passed resolutions in 1991 requesting the B.I.A. to allocate general assistance money for California. In response, the social services officer for the Bureau's Sacramento Area Office decided to canvas the county general assistance programs operating in those California counties with reservations, to determine whether the programs actually were "comparable" to the Bureau program. What he learned was surprising: All but one of the counties required that the recipients of county general assistance repay the benefits, at least if they were not participating in a county work relief program (i.e., working for the county in exchange for their benefits). The Bureau official in Sacramento transmitted these findings to the central office in Washington, D.C. In October, 1993, at the request of the Bureau's central office, the Solicitor for the Department of the Interior issued a memorandum confirming that county general assistance in California was not "comparable" to federal assistance, at least for unemployables, because of the repayment provisions. 19 Thus, for at least some indigent Indians in California, there is no state assistance equivalent to the federal welfare that is "available" to California Indians; and thus federal general assistance ought to be directed to California Indians. Finally, for fiscal year 1995, an initial allocation of $510,000 was made for California. This amount was allocated for direct service only and did not include funds for administration. The Sacramento Area Office had to reprogram funds for administration to hire agency social workers, who were eventually hired in March, 1995.

The current allocation of Bureau general assistance to California is tentative and uncertain. No one knows how many eligible Indians there are. Yet since general assistance benefits are tied to the state's AFDC payment levels, and California pays one of the nation's highest AFDC benefits, it is reasonable to expect that BIA general assistance payment levels in California will be relatively high for each eligible Indian. A major objective in the first year or two will be to determine needs and eligibility, so funds have been allocated to support social workers and secretaries. Because of these high overhead costs, at present only $80,000 is available for each of the three California agencies to distribute to needy Indians, and this money has been reprogrammed from other vital tribal needs. Although Bureau officers have represented that the program will grow, currently less than 1 percent of all general assistance funds is going to support California Indians, who comprise approximately 12 percent of all Indians nationwide. Efforts to develop more equitable formulae for distributing the funds, centered in the Bureau's general assistance work group, have been thwarted within the B.I.A. Moreover, initiatives underway within the Bureau to shift general assistance funds from the "other recurring programs" category to the tribal priority budgeting system appear to be operating to the disadvantage of California tribes, because they freeze allocation levels at a time when the needs of California tribes are still undetermined. 20

  1. Unpublished report of Dr. A. F. Gillihan to State Board of Health on certain Indians of northeastern California 2 (1921), quoted in Goodrich, "The Legal Status of the California Indian," 14 California Law Review 83, 175 n.115 (1926).
  2. Fifty-first Annual Report of Board of Indian Commissioners 59 (c. 1920).
  3. John Rockwell, The Status of the Indian in California Today (Sacramento Indian Agency, 1944).
  4. Wolf, "Needed: A System of Income Maintenance for Indians," 10 Arizona Law Review 597, 607 (1968). The general assistance program is part of the larger BIA social services program, which also includes burial and disaster assistance as well as payments to reservation-based foster parents. Like general assistance, these other programs are residual to other federal or state benefits. Overall, general assistance forms by far the largest portion of the BIA social services program.
  5. Id.
  6. See Morton v. Ruiz, 415 U.S. 199 (1974).
  7. Id.
  8. 25 C.F.R. secs. 20.1-20.30 (1995).
  9. 25 C.F.R. sec. 20.21(b) (1995).
  10. R. Walke, Federal Programs of Assistance to Native Americans: A Report Prepared for the Senate Select Committee on Indian Affairs of the United States Senate 170 (1991).
  11. See Goodrich, "The Legal Status of the California Indian," XIV California Law Review 157 (1926).
  12. See M. Mazzetti, Historical Overview of PL-280 in California 13 (Office of Criminal Justice Planning: Indian Justice Program, Sacramento, CA, 1980).
  13. J. Young, D. Moristo, and G. Tenenbaum, An Inventory of the Pala Indian Agency Records 5 (UCLA American Indian Studies Center, 1976).
  14. California Joint Assembly Resolution No. 11, Statutes and Amendments to the Code of California, 1950 First Extraordinary Session 575 (1950). The subcommittee took this action after hearing supportive testimony from the Mission Indian Federation, which had falsely represented that it spoke on behalf of the Southern California tribes. After receiving a memorial from the California legislature protesting this action, the full Appropriations Committee refused to approve the recommendation.
  15. E. Castillo, "The Impact of Euro-American Exploration and Settlement," p. 122 in Handbook of North American Indians (1978).
  16. Conversation with Kevin Sanders.
  17. Acosta v. San Diego County, 126 Cal.App.2d 455, 272 P.2d 92 (4th Dist. 1954).
  18. Wilson v. Watt, 703 F.2d 395 (9th Cir. 1983); Kalispel v. Swimmer, Civ. No. 88-126 (E.D. Wash., August 4, 1988).
  19. Memorandum from Michael J. Anderson, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior to Carol Bacon, Director, Office of Tribal Services, Bureau of Indian Affairs, October 20, 1993. This memorandum analyzes the significance of the work relief requirement for employable recipients, pointing out that individuals who engage in work relief are exempted from the repayment obligation. Therefore, the memorandum concludes, only "unemployable" individuals or individuals "unable to work" are precluded from access to "comparable" county general assistance. Accordingly, only individuals with those characteristics should be eligible for federal assistance. Bureau officials have questioned whether it is feasible to determine whether individuals are truly "unemployable" or "unable to work," and have suggested that the Bureau requirement of actively seeking employment should be the only one applied. Furthermore, in some counties, such as San Diego, welfare officials have excluded individuals in remote parts of the county from work relief, leading tribal members to argue that they should be eligible for BIA assistance because they are unable to work off their county obligations. Resolution by Southern California Indian Tribes, April 7, 1994.
  20. See letter from Virginia Hill, Southern Indian Health Council Director, Social Services, to Crow Munk, Ka-ruk tribe, March 22, 1995; Southern California Tribal Chairmen's Association, Resolution on General Assistance, October 27, 1995.

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