IX. Case Study in Funding Inequity
The uncertain [land] tenure [of the California Indians] and enforced removals has largely prevented missionary and school work among them, while race prejudice has for the most part debarred their children from the public schools (1904).
California Indian people find themselves in a "no mans" land regarding Indian education. At the Federal level, except for a few programs, the Federal Government has taken the position that the education of California Indian people is not its responsibility. At the State level, control of educational programs is basically in the hands of the dominant society and the Indian's cultural and special needs are largely ignored (1984).
In 1851, eighteen treaties were negotiated with California Indians establishing reservations and promising economic aid, schoolteachers, and vocational training in return for ceded lands. Although the Indians kept their part of the bargain by vacating the ceded lands, Congress refused to ratify the treaties. The reservations never were established, and the educational benefits never provided. This denial of federal education benefits established a pattern that prevails to this day.
During the second half of the nineteenth century, the federal government set aside a few small areas of land for the occupation of California Indians. Most tribal members remained scattered about the state, living in destitution. By 1881, a small number of federal day schools had been founded, but they were too few and too far apart to serve the needs of Indian children. In their 1883 report to the Commissioner of Indian Affairs, Helen Hunt Jackson and Abbot Kinney wrote of the need to create real reservations for the California Indians, and further stated,
We recommend the establishment of more schools. As the reservations are gradually cleared, defined, and assured for the Indians' occupancy, hundreds of Indians who are now roving from place to place, without fixed homes, will undoubtedly settle down in the villages and more schools will be needed....The isolated situation of many of the smaller settlements is now an insuperable difficulty in the way of providing education for all the children....In every village that we visited we were urged to ask the Government to give them a school....In this connection we would suggest that if a boarding and industrial school, similar to those at Hampton and Carlisle, could be established in Southern California, it would be of inestimable value....
Between 1891 and 1935 Congress did allocate funds to create reservations for the landless California Indians. But the reservations that were established were usually tiny, arid, inaccessible, and too mountainous to cultivate. As a consequence, many California Indians chose to live elsewhere. When the federal government established day schools on those reservations, it was difficult to assemble a critical mass of school children. Accordingly, most of these day schools were closed by 1895. To implement the prevailing federal policy of assimilation, the federal government replaced many of the day schools with boarding schools in Tule River, Round Valley, Middle Town in Lake County, the Hoopa Valley Reservation, Perris, and Fort Bidwell. Another boarding school, the Sherman Institute, was set up in Riverside County in the 1890s, but for many decades it was closed to California Indians, mainly serving tribal members from Arizona and New Mexico. The first Indian from a California tribe entered Sherman in 1968.
The Meriam Report of 1928, a federally sponsored report on the status of Indian programs nationwide, was extremely critical of the boarding school system and the quality of education rendered within its schools. According to the Report, removing Indian children from their families and communities, forcing them to adopt non–Indian ways, and punishing them for practicing their cultures was damaging to Indian children. Moreover, the personnel and facilities were of distinctly inferior quality. The Report recommended that Indian students remain with their families and with their communities while being educated. To help assimilate the Indian students, the Report suggested that they be educated in public schools along with non–Indian children. A similar proposal emerged from the influential Indian Section of the Commonwealth Club of California, which urged cooperation between state and federal agencies to provide a variety of services to California tribal members. The outgrowth of these recommendations was the Johnson–O'Malley Act of 1934, which allowed the federal government to contract with states to provide public education for Indians.
From 1935 to 1953, the state of California received a substantial sum through the Johnson–O'Malley program for Indian education. Although this money went to the state largely for assimilative purposes, the federal government was simultaneously pursuing policies more focused on advancement of tribal self–determination. The Indian Reorganization Act of 1934 was the most conspicuous display of that competing federal thrust. After World War II, however, significant changes took place both in federal policy and in Indian education. The common sentiment of that time among federal legislators was that Indian children would be "better off" if they were to progress even more rapidly towards a "white man's way of life." The educational implication of that policy was simple: Prepare Indian children for full and immediate integration into non–Indian society. Eliminate as many special federal Indian programs as possible.
Two federal statutes and one B.I.A. program that effectuated this new policy had a significant impact on Indian education in California. Public Law 280, enacted in 1953, transferred federal criminal and civil jurisdiction on reservations to certain designated states, including California. Although this law did not dictate cessation of services to California Indians, the B.I.A.'s central office as well as its Sacramento Area Office took the law as a signal to decrease services drastically. Withdrawing scholarships, vocational education, Johnson–O'Malley aid, and other programs, the Sacramento Area Office cut the majority of all federal education funds for California Indians.
One year after passage of Public Law 280, Congress passed a "termination" act that purported to terminate the reservation and tribal status of forty–one California groups. Indians belonging to tribes touched by the termination statute lost their eligibility for federal programs altogether. What little was left in the way of federal support was denied them. Although most of the terminated tribes have been reinstated through litigation or special federal legislation beginning in the 1970s, the loss of organization and momentum during the period of termination has made it difficult for these groups to press for needed federal support.
The B.I.A.'s Voluntary Relocation Program, begun in the early 1950s, encouraged reservation Indians to move to urban areas, by offering them financial assistance, social services, and training. In response to these promises (many of which proved illusory), quite a few California Indians left their reservations for job training in urban areas throughout the Midwest and East, and Indians from outside California were sent to the Los Angeles and San Francisco areas. An estimated 60,000 to 70,000 Indians relocated to these two metropolitan regions by 1969, overwhelming the number of indigenous Californians living there. These non–indigenous tribal members eventually competed for federal benefits with California Indians, often prevailing over the less numerous California group.
Although some education programs have been reinstated in California since the Nixon administration, the level of federal education benefits has never caught up with the true service population. The remainder of this section will demonstrate how California Indians are treated under a variety of federal education programs, both those administered by the B.I.A. and those administered by other federal departments.
California Indians receive Bureau education benefits at a far lower level than Indians nationwide (see Table IX–1). In the largest Bureau funding category, ISEP, where $259,762,903 was spent in 1995, the California allocation was only $4,589,448. In per capita terms, using the Bureau's own service population counts, the national per capita expenditure was $219.40, while in California it was only $100.72. If more appropriate, yet still conservative, service population counts are employed, the disparity is even greater. The "real" per capita spending from ISEP funds in California for 1995 was only $50.36, or less than one–fourth the national per capita spending. This pattern repeats throughout all the areas of Bureau spending on education (see Table IX–1).
California was the first state to receive funds under the Johnson–O'Malley Act of 1934 (hereafter JOM), which enabled the federal government to contract with states to provide public education for Indians. For almost twenty years, California received an annual appropriation of approximately $318,000 in JOM funds. In 1953, the federal government began to phase out California JOM programs. Support for California under that Act was eliminated altogether in 1958. Meanwhile, JOM funding for other states grew. In 1967, for example, California had an Indian population of 39,047 and received no JOM monies. Colorado, by contrast, with its 4,288 Indian people, received over $100,000.
The B.I.A. gave four reasons for its decision to end California's JOM funding: (1) under Public Law 280 and termination statutes, California Indians would soon lose all eligibility for services; (2) California was constitutionally obligated to provide equal education for its Indian citizens; (3) California Indian students were "better off" than other Indians; and (4) funds under a separate program, known as Impact Aid, would adequately replace JOM funds. For these same reasons, in 1953 the California State Advisory Commission on Indian Affairs recommended phased elimination of JOM programs over a five-year period.
These four justifications for cutting JOM funding in California never matched actual developments. With respect to the first reason, termination never affected all the California tribes, and most of those that were targeted for termination have reversed the process since the 1970s. For all intents and purposes, Congress abandoned Public Law 280 as public policy in 1968, as a new era of self–determination dawned. While California's Public Law 280 jurisdiction remained in place, national efforts to strengthen tribal sovereignty had effects in California as elsewhere. Thus, Public Law 280 did not usher in the demise of California tribes. With respect to the second reason, while California does indeed possess a constitutional obligation to educate its Indian citizens, the state has never provided equal education to meet the needs of Indian students. The California Legislature has effectively conceded that this inequity existed. With respect to the third reason, that California Indians fared better than Indians elsewhere, the documentation was never sound. Once federal funds were withdrawn from California, the relative condition of its Indians deteriorated markedly, especially as massive amounts of money were directed elsewhere in the nation under Great Society programs of the 1960s. Finally, with respect to the fourth reason, Impact Aid program funds never served as an adequate substitute for JOM funds, because the funds that local school districts received under Impact Aid became part of the districts' general funds and were not earmarked for special Indian programs. Furthermore, Impact Aid is available only where Indians live on tax–exempt federal lands. Because such a high proportion of California Indians live off reservations, the school districts where many California Indian children were educated were not entitled to Impact Aid funds.
In 1968 the B.I.A. conducted a study of the need for restoration of JOM funds for California. Although JOM funding was reinstated for California in 1969, the level of assistance was considerably below the pre–1953 level. In 1970, for example, the B.I.A. established ten programs with the JOM allocation of $90,000 for California, a far cry from the $318,000 in 1953, especially adjusting for inflation. By 1973 the funding level had grown to $248,000. But that was still only 1 percent of the total B.I.A.'s JOM budget of $24.5 million. Had the Bureau matched the proportion of total JOM funds directed to California as of 1953, California would have received $2.9 million, or 12 percent of the total.
Before 1970, the Bureau made its JOM contracts in California with the state's Department of Education. From 1970 to 1975, the Sacramento Area Office administered the funds. Since enactment of the Indian Self–Determination and Education Assistance Act of 1975, the B.I.A., in the spirit of making federal services more responsive to the needs of Indian communities, has entered into many JOM contracts with tribal organizations. Tribes use these funds to provide tutors, for cultural field trips, school supplies, and clothes for needy Indian children. So long as the funds are used for education–related purposes, the tribes have considerable discretion.
Under this new regime, the amount of program money available to California Indians on a per capita basis has not kept pace with the level of per capita funding for Indian students nationwide. Funding for the JOM program increased for California from $733,200 in 1992 to $1,057,100 in 1995. Nonetheless, the allocations pale in comparison with the amounts directed to other states. In 1995, national per capita spending for JOM was $23.15, while the "real" California per capita spending was $14.54. In 1994, while California had JOM funding of $1,020,500, Oklahoma had a budget of $5,592,400.
The explanation for this disparity between California and other states may be found in the difference between the percentage of eligible Indian children in each state who are actually served by JOM programs. In Oklahoma, for example, almost all the eligible children are served by JOM. In California, only one-third are served. According to the 1990 census, Oklahoma had 57,107 Indian children between the ages of 5 and 18 living on its one reservation and in what are called "tribal jurisdiction statistical areas." These latter areas are former reservations with considerable numbers of trust allotments. Almost all the Indians in Oklahoma are counted by including these areas. In 1994, 55,707 of the 57,107 Indian children in Oklahoma were served by JOM.
In California, the most appropriate way to count eligible Indian children is to use the service population figures provided by the Indian Health Service, which has been mandated to serve many California Indians who live off reservations and who are not members of federally recognized tribes. That 1994 IHS service population figure for California is 113,465. Extrapolating from the Oklahoma data, an estimate would be that 27 percent of that number reflects the number of California Indian children between the ages of 5 and 18. Thus at least 30,635 California Indian children should be deemed eligible for JOM benefits. Yet only 8,700 Indian children were served by JOM programs in California in 1994, that number rising to 11,175 in 1995.
Using the IHS-based population figures, the JOM benefits for California for 1994 were $33.31 per Indian school–age child. The comparable figure for Oklahoma was $100.39 per Indian school–age child. Thus Oklahoma's JOM 1994 allocation per eligible child was almost three times the allocation for California. An allocation more in line with the sum allotted to Oklahoma would have yielded $3,060,000 to California, using the 1994 figures.
One might argue that the Indian population in California is more likely to be urban, non–indigenous to the state, and unrecognized than Indians elsewhere. With many JOM contracts going to tribal organizations, the likelihood is that only tribal Indians living on or near reservations will be served, and funding should be greater to states with a higher proportion of such Indians. Yet JOM serves a high proportion of the Indian children in Oklahoma despite the small amount of reservation land there. Furthermore, the primary intent of the JOM program was to aid "those states in which tribal life is largely broken up and in which Indians are to a considerable extent mixed with the general population." California is a prime example of such a state. Driven from ancestral lands and denied the reservation lands promised to them, many California Indians had no alternative but to merge with the general heterogeneous population of California. Although JOM contracts do not limit services to reservation Indians, the funds have been consistently elusive for many off–reservation tribal members and members of unrecognized California tribes. That is why an equitable allocation of JOM funds for California would include all Indians eligible under criteria such as those set out in the Indian Health Care Improvement Act amendments of 1988.
The future of JOM funds for California is uncertain due to a potential change in policy within the B.I.A. It is currently being proposed that JOM funds be included within the Tribal Priority Budgeting System (TPBS). If this proposal comes to pass, tribes will determine whether education is a priority in composing their budgets. JOM funds can be diverted to other areas as the tribe may see fit. A shift of JOM funds to the TPBS is opposed by most California Indian educators, because they fear that the lack of adequate funding for other tribal programs will lead tribes to “raid” JOM funds to support basic tribal government operations.
The Indian Higher Education Grant Program administered by the B.I.A. was established by the Bureau in 1949 pursuant to the Snyder Act of 1921, which authorized the Bureau to "direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians of the United States...for support...including education." In 1957, the B.I.A. published regulations defining the eligible class of recipients as Indian "students of one–fourth or more degree Indian blood." Under this definition, members of unrecognized tribes who are at least one–fourth degree Indian blood were qualified to receive educational grants.
In 1989, the Bureau changed the eligibility criteria through an internal memorandum. The new criteria required membership in a federally recognized tribe or at least a one–fourth degree Indian blood quantum and descent from someone who is a member of a federally recognized tribe. Soon thereafter, Gene and Greg Malone, both 5/16 Wintun Indians (a nonrecognized tribe), brought suit against the Bureau when their applications for higher education grants were denied. In 1994, the United States Court of Appeals for the Ninth Circuit invalidated the new criteria on the basis that the agency had not followed the proper rule-making process. The Court directed the Bureau to reformulate the criteria, and strongly suggested that the agency take account of the more expansive California eligibility criteria set forth in the Indian Health Care Improvement Act Amendments of 1988. The rule-making process is still underway.
Many California Indian college students were rendered ineligible for higher education grants by the Bureau's 1989 criteria. Additional numbers of California Indians are excluded from grants by virtue of the Bureau's preference for qualified students who live on or near reservations areas. Not surprisingly, California has received a disproportionately small amount of higher education grant monies.
In 1995, for example, California received only $569,125 of more than $29,000,000 allocated nationwide for Bureau scholarships. Per capita spending nationwide on this program was $25.05, compared with California per capita spending of $12.49, or $6.24 using the "real" service population figures. Thus the California per capita allocation was only one–fifth of the allocation nationwide.
B.I.A. Day Schools and Boarding Schools
The Bureau of Indian Affairs operates or contracts to support 185 day schools and boarding schools for Indian children nationwide. While many other states have sizable education budgets to support such schools, California is funded for only two: Noli School on the Soboba Reservation and Sherman Indian High School in Riverside, California. For 1994–95, Noli received $188,000 and served 20 students. Sherman received $4.4 million and served 445 Indian students, approximately 35 of whom were from California. This total of approximately $4.6 million for California represents 1.8 percent of the total $259,000,000 spent nationwide on Bureau schools in that year. Taking into account the percentage of California funds actually spent on Indians from California, the percentage falls to a meager .2 percent. In contrast, California Indians represent 4 percent of the national Indian population based on the most conservative estimates, and 6–9 percent under more appropriate (but still conservative) calculations.
If California Indian children were thriving in the public schools of the state of California, one might argue with some force that there is no need for Bureau–funded schools. Data from the 1990 census indicate, however, that Indian children in California suffer from high drop–out rates and low achievement. These recent data continue a pattern that has existed for many decades. Inadequate attention to culturally appropriate curricula and teaching methods in California public schools contributes to the problem. Inequities in funding for California under the Johnson–O'Malley program are probably also a factor in the low performance of California Indian children compared with Indian children elsewhere in the country. Funding for Sherman Indian School increased to $5.9 million for 1995, but the number of California students remained below 40.
Tribally Controlled Community Colleges
Tribally controlled community colleges are chartered by tribal governing bodies and funded under special Congressional authorization. Most funding is calculated on the basis of the number of student credit hours.
D–Q University, the only tribally controlled community college in California, was established in Davis in 1971. In 1995, D–Q served over 300 students and received $595,434 in funds from the Bureau, out of a total of $24,359,385 allocated nationwide. National spending of $20.57 per capita in this category contrasts with California per capita spending of $13.07, or $6.54 using the "real" service population figures. Exacerbating the disparity for California is the fact that education costs are likely higher in California than in most other areas of the country. Thus, the approximately $3,000 per student that D–Q received covered less than one-third of the $10,780 cost of educating a student at D–Q for the entire year. Of the 22 tribally controlled community colleges in the United States, D–Q is in the top five in terms of number of students graduated per year.
It is also B.I.A. policy to "[a]ssist tribes in their planning, designing, construction, operation, and maintenance of tribally controlled community colleges, consistent with all appropriate legislation." A 1984 Bureau task force recommended the allocation of three separate planning grants for tribally controlled community colleges in California. However, the Bureau has provided no planning funds or technical assistance to any California tribe interested in founding its own reservation–based community college other than D-Q. University. Given California's large Indian population, more facilities are needed to serve college age students.
Department of Education Programs
The Department of Education administers both Title IX of the 1994 Improving America's Schools Act (amending and supplementing the Indian Education Act) and the Impact Aid program.
Indian Education Act (Title IX)
Title IX, whose purpose is to meet the special educational and culturally related academic needs of Indian students, includes a formula grant program directed at local school districts; a grant program for state, tribal, and Indian–controlled entities to improve educational opportunities for Indian children; a fellowship program for Indian students to study in graduate and professional programs in specified fields; a grant program for tribes to help them build their administrative apparatus for education services; and a grant program for the development of educational opportunities for adult Indians. By far the largest of these Title IX programs, the formula grant program, is based on the number of Indian students that a local school district can identify through certification forms filled out by their parents. If the school district does not initiate the parent certification process or the parents do not wish their children to participate, the amount of money available under the program will be reduced under the formula.
In 1995, California was awarded over $4 million in Title IX formula grant funds which supported 117 projects. That budget was over four times the amount of JOM funds allocated to California and reflects the fact that the Office of Education is more inclusive than the Bureau of Indian Affairs in defining its service population. Although JOM served only 11,175 Indian students in California in 1995, Title IX formula grant funds served over 33,000. Eligible students include those who are members of tribes, descendants in the first or second degree of such members, members of tribes terminated since 1940, and members of state–recognized tribes. No distinction is made between members of tribes indigenous to the state and other tribal members.
Impact Aid funds are distributed to local school districts on the basis of the number of children residing on or whose parents work on "Indian lands." The funding formula includes both Indian and non–Indian children, and the term "Indian lands" includes individual Indian trust lands, reservation trust lands, and tribal lands subject to restrictions against alienation. These funds compensate for the fact that Indian lands are not subject to state and local property taxes, which normally serve to support public education. Districts may use Impact Aid monies for general operating expenses, and often these funds constitute a large percentage of the total operating budget of districts encompassing Indian reservations or trust lands.
Under 1978 amendments to the Impact Aid program, local school districts receiving funds must insure that Indian children participate on an equal basis in the school program with all other children in the district, and that Indian parents are afforded an opportunity to participate in the planning and development of programs supported with Impact Aid monies. The promise of these amendments has not been realized in California, however. Parents and tribal officials regularly complain that they have practically no input into the management of Impact Aid funds.
California seems to be underfunded within the Impact Aid program, despite the relatively mechanical formula for providing assistance. In fiscal year 1993, for example, California received $7,625,175 while Oklahoma received $18,858,117. Yet California has approximately 580,000 acres of Indian land compared with approximately 1,100,000 in Oklahoma. Thus with 53 percent the amount of Indian land as Oklahoma and almost the same size Indian population, California received only 40 percent as much funding.
This difference in Impact Aid funding requires some explanation. The presence of large numbers of Indians from unrecognized tribes in California cannot explain the disparity between California and Oklahoma, because the Impact Aid law does not differentiate between Indians and non–Indians, so long as the individuals live on Indian lands. Given the formula for Impact Aid funding, however, an obvious hypothesis is that fewer people (non–Indian as well as Indian) live or work on the Indian lands in California than in Oklahoma. The remoteness, inaccessibility, and arid quality of Indian lands in California make this hypothesis quite plausible. Census data cannot be used to verify it, however, because the census does not differentiate between residents of trust and non–trust lands in Oklahoma.
A second hypothesis is that California Indians are disadvantaged by eligibility requirements within the Impact Aid law that allow funding only when a local school district has at least 400 students who live on Indian lands or at least 3 percent of the total district population. Thus, if the children living on Indian lands in California are scattered among more school districts than the children living on Indian lands in Oklahoma, it may be possible that fewer California districts are eligible for Impact Aid. A careful study is required to determine whether California Indians are disadvantaged by this provision.
A large portion of the federal Indian budget is devoted to education. Thus if one is trying to explain disparities in the allocation of federal funds for California tribes, differences in funding for education programs are likely to account for those disparities.
Indeed, California Indians have not received an equitable share of federal education funds for Indian education, particularly if the focus is on Bureau of Indian Affairs programs. The Johnson–O'Malley program, the Bureau's day and boarding schools systems, and the Higher Education Scholarship program are the three worst cases. Under Johnson–O'Malley, the biggest problem is an undercounting of Indians eligible for service. If the service population were properly counted, California would receive almost three times the amount of Johnson–O'Malley funding it currently receives. Interestingly, the Office of Education, which administers funds available under the Indian Education Act, serves a California Indian population approximately three times larger than the population designated by the Bureau under Johnson–O'Malley.
With respect to day schools and boarding schools, the greatest source of difficulty is the failure to locate and operate schools in areas convenient for California tribes. The Bureau has almost completely abdicated Indian education in California to the local public schools. Yet California's schools have not built a record of effective service to Indian children.
Under the Higher Education Scholarship program, restrictive eligibility definitions are the most serious obstacle to equity for California Indians. Regulations promulgated by the Department of Interior have disqualified California Indians who are members of unrecognized tribes. These regulations have been challenged in court and may be revised in the future to create more favorable eligibility standards for California Indians.
 Memorial of the Northern California Indian Association, Praying that Lands Be Allotted to the Landless Indians of the Northern Part of the State of California, reprinted in R. Heizer, Federal Concern about Conditions of California Indians 1853 to 1913: Eight Documents at 96 (Ballena Press 1979)
 Report of the California Indian Task Force, Bureau of Indian Affairs, October, 1984 at 29.
 "A Report on the Condition and Needs of the Mission Indians of California, Made by Special Agents Helen Jackson and Abbot Kinney, to the Commissioner of Indian Affairs, in H. Jackson, A Century of Dishonor 468 (University of Oklahoma Press, 1995)
 See Section III of this report, supra.
 Final Report to the Governor and the Legislature by the [California] State Advisory Commission on Indian Affairs, 1969.
 See Senate Joint Resolution No. 3 –– Relative to the reinstitution of federal services for California Indians, filed with the Secretary of State of the state of California, April 2, 1968.
 "The Status of the Indian in California Today: A Report by John G. Rockwell, Superintendent of the Sacramento Agency to the Commissioner of Indian Affairs" (1944).
 See Section III of this report, supra.
 According to the 1990 census for all Indian areas in the United States, 42 percent of the residents are under the age of 18.
 This figure of 24,500 is lower than the 43,459 figure compiled by the California State Department of Education in identifying Indian students for purposes of state programs. See California Advisory Committee, 1995. It is also lower than the 33,000 Indian students served by the Title IX Indian Education Act programs in 1995. See page 64 of this section, infra. It should be noted that the state and Indian Education Act programs do not differentiate between members of California tribes and members of out–of–state tribes.
 This figure is very close to the $98/child national average for JOM expenditures in 1995.
 Letter to the President from Senator John Tunney, May 31, 1972.
 See Section III of this report, supra.
 25 U.S.C. sec. 13.
 25 C.F.R. sec. 40.1.
 See Section XII of this report, infra.
 See Final Report to the Governor and the Legislature by the State Advisory Commission on Indian Affairs at 19–20 (Sacramento, CA, 1969).
 20 U.S.C. sec. 7881(4).
 B.I.A. Central Office document, 1994.
 See 20 U.S.C. sec. 238(c).