DOCUMENT: DELACRUZ.TXT TESTIMONY OF JOSEPH B. DELACRUZ, CHAIRMAN, QUINAULT INDIAN NATION BEFORE THE SENATE SELECT COMMITTEE ON INDIAN AFFAIRS HEARING ON SENATE CONCURRENT RESOLUTION 76 DECEMBER 2, 1987 I appreciate the privilege and honor to testify today before the Senate Select Committee on Indian Affairs on Senate Concurrent Resolution 76 which acknowledges the contribution of the Iroquois Confederacy of Nations to the development of the United States Constitution and reaffirms the continuing government-to-government relationship between Indian Tribes and the United States established in the Constitution. I certainly hope this Congressional resolution will serve to educate the American public as to American Indian Tribal sovereignty as embodied in the U.S. Constitution and create meaningful improvements in the relationship between American Indian Tribes and the United States. I recently participated in a forum hosted by the Alliance of American Indian Leaders and the Indian Rights Association in Philadelphia, in commemoration of the bicentennial of the Constitution to explore the topic: "In Search of 'A More Perfect Union': American Indian Tribes and the United States Constitution." It was an enlightening and saddening experience to refresh my knowledge of the United States and American Indian Tribes at the time of the Constitution and the historic relationship established between sovereign nations. American Indian people have suffered, endured, and survived over the last 200 years despite the assurances of the Constitution, the Northwest Ordinance of 1787, and solemn agreements between leaders of nations. I quote an appropriate statement by a presenter at the Philadelphia forum, Milner S. Ball, in the introduction to his fascinating American Bar Foundation Research Journal presentation: CONSTITUTION, COURT, INDIAN TRIBES. He states: We claim that the "constitution, and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land." But we also claim to recognize the sovereignty of Native American nations, the original occupants of the land. These claims -- one to jurisdictional monopoly, the other to jurisdictional multiplicity -- are irreconcilable. Two hundred years have produced no resolution of the contradiction except at the expense of the tribes and the loss to non-Indians of the Indians' gift of their difference. American Indian Tribal governments are unique to the Federal system by virtue of their treaty-trust relationship with the United States. Unfortunately, the historical evolution of the United States-Tribal relationship has allowed a dominating Federal bureaucracy to permeate and control most aspects of Tribal government operations. AMERICAN PUBLIC NEEDS TO BE EDUCATED ABOUT AMERICAN INDIAN TREATIES, GOVERNMENTS, AND CULTURES The Congress, Federal bureaucrats, and the general American public have minimum common knowledge about American Indian Tribal governments, their distinct cultural heritages, their sovereign status as dependent nations, their contributions to society, the meaning of their treaties, and their clear legal right to existence in modern society. Generally, we are understood in the context of Hollywood and the brief historical anecdotes included in High School American history textbooks. This limited public knowledge creates obvious opportunities for political mischief and negative racism. In the Congress, we are constantly involved in the education process whether promoting positive policies or opposing negative legislation in Indian Affairs. With the Federal bureaucracy, we daily confront policies, regulations, and program requirements promulgated for the general system of governments, but which negatively impact our sovereign Tribal status. And, the general public is most susceptible to an ever-present network of anti-Indian hate groups fed by greed and racism whose public agenda is to destroy Tribal treaty rights and steal Tribal resources. As Tribal governments have more assertively protected their rights and resources in Congress and the courts in recent years, these anti-Indian organizations have grown proportionately spreading negative misinformation. Sadly, there continues to be politicians at all levels most willing to capitalize on these negative elements within their constituencies. I am heartened in my travels to experience general public interest and support for American Indian people when they are informed on the issues. In Washington State many misunderstandings have been resolved and a spirit of mutual respect and cooperation is prevailing due to a process of public dialogue and education. I believe Senate Concurrent Resolution 76 should serve as the cornerstone to fully inform the American public through research, media, and public forums as to our rightful place in history and in the modern world. A GOVERNMENT-TO-GOVERNMENT POLICY SHOULD PROMOTE TRIBAL SELF-GOVERNMENT AND TRIBAL SELF-SUFFICIENCY The difference between stated public policy and its actual implementation is an excellent measure of misunderstandings and misconceptions. This is certainly true for the United States Congress and Administrations in American Indian Affairs. President Reagan in his White House Indian Policy Statement of January, 1983 spoke eloquently of his support for government-to-government relations with Indian Tribes. Just last week Presidential proclamation 5745 of November 19, 1987, proclaimed November 22-28, 1987, as "American Indian Week." In his proclamation, President Reagan stated: The Constitution affirmed the special relationship of the Federal government with American Indians when it stipulated: "the Congress shall have Power To...regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes;..." This unique government-to-government relationship continues today and has been reinforced through treaties, laws and court decisions. During the Bicentennial of the Constitution, it is especially fitting that we recognize and celebrate the many contributions of American Indians. I certainly agree with this policy statement in principle, but certainly not in its current practice. The current administrations of the Bureau of Indian Affairs and Indian Health Service have been consistently criticized by American Indian leadership for their unwillingness to meaningfully consult on planned policies and programs. Poorly conceived policies are created behind closed doors and then promoted with Congress. We have been forced to constantly stop or alter these negative polices with Congress. But this is the "government-to-government" relationship which evolved historically and remains entrenched in practice to protect bureaucratic self- interest. Since the enactment of the Indian Reorganization Act of 1934, United States policy has attempted to promote social and economic self-sufficiency in Indian Nations. How the U.S. government carries out this policy has remained an issue of contention. This is due, in part, to the widely divergent views of U.S. administrators and legislators over what the outcome of this policy should be. To some, self- sufficiency means the perpetual social, economic and political existence of Indian Nations exercising the full powers of self-governance. To others, self-sufficiency means the elevation of social and economic standards on Indian Reservations equal to neighboring, non-Indian communities; and, the ultimate elimination of Indian Nations through assimilation. Self-sufficiency among Indian peoples means that Indian Nations are able to govern their country and peoples without external interference; Indian peoples can renew their natural creative abilities to feed themselves, house themselves, and clothe themselves, relying on their own labor and natural resources; Indian peoples can freely decide how to best serve their social and health needs; and, as self-sufficient societies Indian Nations expect the United States of America to uphold its agreements and treaties to "preserve, protect and guarantee the rights and property" of Indian Nations against encroachments and fraud. Clearly, Indian Nations believe self-sufficiency must lead to their perpetual existence as distinct social, economic, and political societies. In response to the extensive dislocation among Indian peoples caused by the General Allotment Act of 1887, and observing the extreme poverty of Indian Nations, the U.S. government enacted the Indian Reorganization Act of 1934 as a kind of "New Deal" for Indian Country. Indian Nations were to have an economic and political relationship with the U.S. that would "maximize political democracy and self- government" among Indian peoples and ensure sufficient economic support to achieve social and economic self- sufficiency. As a practical matter, the IRA which promoters thought would liberate Indian Nations and promote their social, economic and political self-sufficiency became the instrument by which the U.S. government assumed autocratic rule in Indian Country through the Bureau of Indian Affairs. Felix Cohen observed in his 1942 HANDBOOK OF FEDERAL INDIAN LAW: "Self-government is the Indians' only alternative to rule by a government department." He noted that the principle of self-government "includes the power of an Indian tribe to adopt and operate under a form of government of the Indian's choosing, to define conditions of tribal membership, to regulate domestic relations of members, to prescribe rules of inheritance, to levy taxes, to regulate property within the jurisdiction of the tribe, to control the conduct of members by municipal legislation, and to administer justice." All of these are the attributes of political sovereignty - the exercise of inherent powers. The Bureau of Indian Affairs effectively undercut the exercise of these and other natural powers of governance. To these conditions, Indian Nations responded by pressing to "reaffirm the desire of Tribal governments to have direct control over all funds within the reservation" - (National Congress of American Indians [NCAI] Resolution #21 - 1948). Through individual actions of Indian governments and through inter-tribal organizations, economic self-determination was further promoted over succeeding years. Their collective effort culminated in the National Congress of American Indians Concurrent Resolution No. 3 in 1957. This became the most comprehensive statement of Indian government policy opposing termination and advocating Indian self-government and economic reconstruction. NCAI President Joseph Garry further spelled out Indian government endorsement of Concurrent Resolution No. 3 in his testimony when he noted that efforts to terminate Indian Nations by private citizens and the Bureau of Indian Affairs "kept the Indians so busy defending themselves they had no time or even energy for constructive planning or actions" which would enhance self-sufficiency. By 1959, the National Congress of American Indians was compelled once again to issue a comprehensive statement of Indian government policies concerning the social, economic, and political development of Indian Nations reaffirming resolutions adopted in 1956, 1957, and 1958. In NCAI's STATEMENT OF NATIONAL POLICY (NCAI, 16th Annual Convention, Phoenix, Arizona), the U.S. government was offered a "guide to administrative action:" A plan of development be prepared for each Indian group, whose lands or other assets are held in trust, whether such lands or assets are fully defined or not, such plans to be designed to bring about maximum utilization of physical resources by the dependent population to its full potential, such plans to be prepared by the Indians of the respective groups with authority to call upon the agencies of the federal government for technical assistance, and the ultimate purpose of such planning to be the growth and development of the resources of the people, rather than the heedless termination of federal responsibility for such people; That requests for annual appropriations of funds be based on the requirements for carrying into effect these individual development plans, and the annual operating budget for the Bureau of Indian Affairs to include sufficient funds to carry out the program needs of each planning group; That such annual budgets include adequate funds to provide for the credit needs and for capital investment, required for the full development of Indian resources; That determination with respect to the disposition of property or actions which may affect treaty rights or agreements be based on agreement between an Indian tribe or group and the United States; That any transfer of service now provided by the United States for the benefit of Indians be jointly planned with the Indians; * * * That a concentrated effort be made to retain, rather than dispose of, Indian lands in order to allow the Indians sufficient economic units upon which to improve their economic conditions; and that administrative regulations and practices be reviewed, modified, and amended to bring about such result. The American Indian Chicago Conference reaffirmed the NCAI Resolution in 1961. By 1966 the patterns of the past continued, and Earl Old Person, Chairman of the Blackfeet Tribe and President of the National Congress of American Indians, reacted to heavy handed Bureau of Indian Affairs efforts to undermine Indian Nations. He spoke before a Conference in Spokane, Washington: Again, I say, "Let's forget termination and try a policy that has never been tried before - development of the Indian reservations for Indians and development of Indians as human beings with a personality and a soul and dreams for a bright future." Why is it so important that Indians be brought into the "mainstream of American life?" What is the "mainstream of American life?" I would not know how to interpret the phrase to my people in our language. The closest I would be able to come to "mainstream" would be to say, in Indian, "a big wide river." Am I then going to tell my people that they will be "thrown into the Big, Wide River of the United States?" Just as President Joe Garry before him called for a new Indian Affairs agenda "setting aside the idea that Indian Nations should be terminated," President Earl Old Person called for Indian Nations and the United States to focus on "rebuilding Indian Country" - and insuring the perpetual social, economic and political existence of Indian Country. Both NCAI Presidents called upon the United States to recognize the inherent intelligence of Indian people and "their ability to decide for themselves what future they shall have." After more years of Tribal insistence, President Richard Nixon finally announced a U.S. policy of "Indian Self- determination." The Indian Self-Determination and Education Assistance Act, P.L. 93-638, soon became law. The principle of Indian Self-Government had been finally agreed to by the United States government, but the practices of Bureau of Indian Affairs dominance and intrusion persisted. At the conclusion of the American Indian Policy Review Commission's two-year study in 1977, it was apparent that while the principle of Indian self-governance and the promotion of Indian self-sufficiency functioned as "buzz words" in the U.S. bureaucracy, the practical reality was far from being achieved. Contracting U.S. government functions to Indian governments had the practical effect of "handing the responsibility of providing services and assistance to Indians over to Indian governments, but holding back the authority to decide with flexibility how to meet the needs of Indian communities." Indian Nations were achieving "self-determination in name only," while the Bureau of Indian Affairs became more intrusive. As NCAI President, I proposed in a speech before the Fortieth Annual Convention of the National Congress of American Indians in Green Bay, Wisconsin (1983), "that we make a decisive departure from the recurring issues that divert our attention from the most important priorities of initiatives necessary to establish meaningful government-to- government relations with the United States." I proposed to Indian leaders that we take "the next logical step beyond the Indian Self-Determination Act" with the enactment of a TRIBAL GRANT-IN-AID ACT, to include: The Act would authorize five year financial agreements between Indian Nations and the United States, negotiated to cover Tribal government operations, economic development, housing, health and human services, and other Tribally-determined needs. The Grant-in-Aid would require a line item appropriation from Congress for each Indian government concluding an agreement with the United States as disbursed through the Department of the Treasury. The Act would include a transition clause allowing Tribal governments a supportive bridge from PL 93-638 contracting to grant- in-aid management. Each agreement, of course, would provide that the trust relationship and obligations of the United States will be upheld. Although a Tribal Grant-in-Aid Act has not been achieved, I believe substantial progress has been made in the Senate Indian Self-Determination Act Amendments of 1987 to streamline the contracting process. The administration's amendment establishing a "Funding Flexibility Demonstration Project" is viewed with both skepticism and hope. Although apparently well-intentioned, this new government proposal was conceived behind closed doors and offered for Senate consideration with little Tribal participation. We hope these demonstration projects will result in a revenue neutral expansion of Tribal control and program operation with a corresponding decrease in BIA involvement and personnel. As history is our guide, we are skeptical with reason. Some suggest that if Indian governments had sums of revenue which they can appropriate through their own institutions for needs defined inside their own nation there will be graft, waste, and resultant Indian government instability. Of course, these same people ignore the generations of graft, waste, and resultant Indian government instability caused by the Bureau of Indian Affairs; well documented by the ARIZONA REPUBLIC'S "Fraud in Indian Country" series of 10/4-11/87 and the TULSA TRIBUNE'S "A Vanishing Trust" series of 11/9-18/87. As Felix Cohen once observed, Indians should be permitted to decide for themselves what is right and wrong, and they should be permitted to make their own mistakes. That is the nature of self-government. The idea of direct aid to Indian Nations by the United States government will make both the policy of self- determination and government-to-government relations meaningful in practical terms. Indian governments and the nations they represent have won acceptance of the principle of self-determination, now it is time to put the principle into practice. AMERICAN INDIAN TRIBAL GOVERNMENTS, THE UNITED STATES GOVERNMENT, AND CONGRESS SHOULD ENGAGE IN CONSULTATIONS ON THE RESTRUCTURING OF THE FEDERAL ADMINISTRATION OF INDIAN AFFAIRS I firmly believe it is appropriate for American Indian Tribal leadership, the Federal government, and Congress to begin consultation and dialogue on the possible restructuring of the Federal management of American Indian Affairs. I don't expect that a new Federal mechanism to protect the trust responsibility and deliver resources or services to be a major expansion of Federal expenditures. I envision that an independent, separate, or autonomous Federal structure would consolidate functions and resources, reduce the size of the Indian Affairs bureaucracy, increase appropriations and management capacities at the Tribal government level, and maximize the utilization of Federal appropriations designated for Indian Country. This new Federal Indian Affairs structure, designed by American Indian leadership and established through formal agreement between Indian Tribes and the United States, could feasibly accommodate the broad spectrum of development needs in Indian Country from those Tribes most dependent on a Federal presence to Tribal governments seeking the greatest degree of self-government. The Bureau of Indian Affairs is the oldest Federal agency in the United States. In fact, just eight days short of one- year before the Declaration of Independence from England (July 12, 1775), the Continental Congress established three independent Departments of Indian Affairs - the first "executive agencies" of the infant confederation of colonies. [Journal, Continental Congress, Vol. 2, p. 175.] There was a Northern Department, Middle Department and Southern Department. Twelve Commissioners were appointed to make treaties with the Indian Nations to promote "peace and friendship." The Articles of Confederation vested in the Congress "the sole and exclusive right and power of...regulating the trade and managing all affairs with the Indians..." [Articles of Confederation, Para. 4 of Article 9] Writing 50 years later, Joseph Blunt commented in his HISTORICAL SKETCH - THE JURISDICTION OVER INDIAN TRIBES on the powers of the government. All our intercourse with the Indians, so long as they continued to be independent, was in the way of trade, or in making treaties, and these were placed under the control of the general government. It was not contemplated...that Congress should have any legislative power over the Indians; but that it should have the exclusive power to regulate the trade, and to make treaties with them. [Blunt, 1825: 93] In light of this observation, it may be fairly concluded that the separate Departments of Indian Affairs, and their successors immediately after the establishment of the U.S.A. functioned like a "foreign ministry" extended "directly from the Parliament." Since there was no executive department or executive branch of government under the Articles of Confederation, the Departments of Indian Affairs stood on an institutional plain similar to committees - legislative instrumentalities. The revolt against the English Crown had begun and the Congress's dependence on aid from Indian Nations - particularly in the North - gave rise to the need to delegate certain Congressional powers over Indian Affairs to the Board of War headed by a Secretary of War. Both the Northern and Southern Departments of Indian Affairs were required to consult with the Board of War. By 1779, the Congress made a much more explicit directive to the Northern Department of Indian Affairs, that it consult with General George Washington in treaty matters and to follow his direction. [Journal of the Continental Congress, Vol. 14, p. 600] By virtue of the "Ordinance for the Regulation of Indian Affairs," [August 7, 1786] the Continental Congress reorganized the Departments of Indian Affairs into two agencies - one in the North and one in the South, divided by the Ohio River. Each Department was headed by a superintendent. By 1789, the Continental Congress appropriated funds for Governors of various territories to serve ex officio as Superintendent of Indian Affairs. Agencies of the Departments of Indian Affairs were first established, somewhat casually, in 1792 with "special agents" who were charged with diplomatic missions to "reside among the Indians." By 1818, there were 15 agents and 10 assistants or sub-agents. In that year, Congress passed a law [3 Stat. 428] requiring that all agents be appointed by the President with the advice and consent of the Senate. Indian Affairs remained a responsibility of the Board of War and its successor under the United States Constitution, War Department, for sixty years. The War Department created a Bureau of Indian Affairs on March 11, 1824. In 1832, the Congress officially authorized a Bureau of Indian Affairs in the War Department, and the Commissioner of Indian Affairs was described as having "the direction and management of all Indian affairs and of all matters arising out of Indian relations" under the direction of the Secretary of War. From the end of the revolt against England, Indian Affairs policy began to shift from mutual dependence to an undeclared war by the U.S. government on Indian Nations. While the newly created U. S. government (1789) regarded trade and treaty- making with Indian Nations still necessary, its interest turned more in the direction of displacing Indian Nations and expanding its territory. During its tenure in the War Department, the Bureau of Indian Affairs functioned as a diplomatic agency. It negotiated treaties, regulated trade, and administered treaty responsibilities. The primary concern was with matters of war and peace, and "civilizing the savages." By the middle of the 19th Century, these concerns shifted to the administration of land transfers and less so war and peace. This shift in concern resulted in a shift of administrative responsibility. The U.S. had taken or acquired massive territories under its control as a result of wars and treaties with Indian Nations and colonizing European states. Following the establishment of the Department of the Interior, the Bureau of Indian Affairs was transferred from the War Department to the Interior Department (1849). The charge of the new Interior Department was to administer "the transfer of public lands into the possession of private owners." The Bureau of Indian Affairs assumed a major responsibility in the new department since most of the "public lands" and potentially public lands were in the possession of Indian Nations or formerly under the control of Indian Nations. Despite the charge of its "parent department," the Bureau of Indian Affairs acquired additional responsibilities involving the delivery of services and assistance to Indian Nations. Indeed, while the Bureau of Indian Affairs was mainly an agency for transfer of land from 1849 to the 1920s, it assumed quasi "governing authorities and responsibilities" in just the last 67 years. I have provided this historical brief on the Bureau of Indian Affairs to outline the evolution of the Agency through this nation's history. We now experience a multi- layered bureaucracy in the BIA with bureaucratic roles and responsibilities duplicated at each government level. The Indian Health Service mirrors the multi-layers and duplications in the Department of Health and Human Services. Other Federal programs, designated to assist Indian Country, are scattered throughout the Federal bureaucracy. And the Federal government, particularly the BIA and IHS, consume a major proportion of funds earmarked for American Indian peoples. Indian leaders over the last one hundred years have sought an array of Federal structures with Cabinet-level status to manage Indian Affairs. In 1974, the National Congress of American Indians unanimously endorsed a position paper entitled, PROPOSAL FOR READJUSTMENT OF INDIAN AFFAIRS [NCAI Convention, San Diego, California, October 24, 1974] which urged "the establishment of independent federal governmental machinery to replace the Bureau of Indian Affairs." The companion statement by NCAI in 1974 was the AMERICAN INDIAN DECLARATION OF SOVEREIGNTY which proclaimed: Establish a SINGLE, INDEPENDENT, FEDERAL GOVERNMENTAL INSTRUMENTALITY WITH CONCURRENCE OF THE MAJORITY OF THE RECOGNIZED ABORIGINAL AMERICAN INDIAN TRIBES AND NATIONS, in order to implement and guarantee the treaty responsibilities and trust obligations of the United States of America under Article Six of the Constitution of said nation. (emphasis supplied) The idea of "independent, federal governmental instrumentality" persisted into discussions and hearings and the final report of the American Indian Policy Review Commission (AIPRC) in 1977. After two years of hearings across the country, and conducting its own study of the Bureau of Indian Affairs, the AIPRC recommended to the U.S. Congress: The President submit to Congress a reorganization plan creating a Department of Indian Affairs or independent agency to be comprised of appropriate functions now mainly administered by the Bureau of Indian Affairs, Indian Health Service, and agencies within the Interior and Justice Departments - Rights Protection be consolidated...[AIPRC Final Report 1977: 297] Although these proposals have all had merit, neither the Tribes, the Federal government, nor Congress have been able to come to any agreement due to Tribal concerns over the potential diminishment of trust protections, administration unwillingness to relinquish established operational patterns and powers, and Congressional apathy. As a logical extension of Senate Concurrent Resolution 76, Congress should initiate a consultation process with Tribal leaders to determine options for a new, effective Federal mechanism more responsive to Indian Country needs. ESTABLISHING A CONSULTATION PROCESS BETWEEN THE UNITED STATES AND TRIBAL GOVERNMENTS Obviously, any restructuring of the Federal management of Indian Affairs will require extensive dialogue, debate, and negotiation to achieve a mutually agreeable strategy and structure. I urge consideration of establishing a formal consultation process between Tribes, the succeeding United States administrations, and Congress. It is literally essential that Tribal leadership is directly involved in improving the Federal administration of Indian Affairs. Tribal governments and their leaders, when directly involved in the development of agreements, have proven the importance of their direct involvement. A recent example is the ratification and implementation of the U.S.-Canada Pacific Salmon Treaty ratified by Congress in 1985. Twenty-four Pacific Northwest Tribal representatives were substantively involved in the treaty negotiation process involving the Departments of State, Commerce, and Interior; the States of Washington, Oregon, and Alaska; and Canadian representatives. Tribal representatives, as included in the Treaty, serve on the Commission and fisheries panels. In the State of Washington, the Timber-Fish-Wildlife Agreement also involved negotiations between Washington State Tribes, private industry, and Washington State to conclude agreements to protect, preserve, and rehabilitate the environment. As the Senate Select Committee on Indian Affairs initiates field hearings on Senate Concurrent Resolution 76, Tribal witnesses will offer enlightening concepts and ideas to improve the management of Indian Affairs. Hopefully, these hearings will prove most instructive on the importance of involving American Indian people in the policy and programmatic decision-making processes affecting their quality of life. I appreciate the opportunity to testify and would be pleased to respond to any questions. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- :: :: A service provided by :: :: The Center For World Indigenous Studies :: :: www.cwis.org :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Originating at the Center for World Indigenous Studies, Olympia, Washington USA www.cwis.org © 1999 Center for World Indigenous Studies (All Rights Reserved. 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