2. ADMINISTRATIVE: Organization and Activities of BureauThe Bureau of Indian Affairs, or the Indian Service as it is frequently called, performs most of the functions of the Government with respect to Indians. Its principal work is performed in 26 states and Alaska. It provides educational facilities through the operation of about 250 day schools and 50 boarding schools. The Bureau furnishes medical services to Indians through about 60 hospitals and many clinics. It also assists tribal officers in maintaining law and order and furnishing social services. An important part of its program is to provide assistance for agriculture and stock raising (extension work and loans), buildings and utilities, land management, soil, forest and wildlife protection and management, and the development and conservation of natural resources.
The Bureau's functions are mainly exercised through more than fifty field offices, each covering one or more reservations comprising about eleven thousand employees, under a Central Office in Washington, D. C., of about two hundred employees. In recent years the policy has been to delegate increased powers to the field officials. A typical field office is headed by a superintendent. His principal aides are the heads of the larger divisions, such as administration, education, health, engineering, which covers irrigation, construction and roads, welfare, low and order, and resources, which includes forestry, soil and moisture conservation, land and extension and credit. Thus, an Indian agency virtually duplicates the principal public services rendered by the Federal, state and local governments for non-Indians. The administrative offices, hospitals, schools, water and heating plants, and employees' homes furnished by the Government are usually grouped together in a little settlement located in a small town near the center of the reservation. Ten schools and five hospitals are located off the reservation aside from Alaska, which is organized as a single jurisdiction.
3. ADMINISTRATIVE: Source of Services to Indians
Many of the Federal services to Indians grew out of treaty provisions. Most of the treaties, even the earliest, contained Government promises to help the Indians learn the white man's culture by affording the benefits of general education or training in mechanical or industrial arts like blacksmithing, forming and milling. A much cited provision in the treaty with the Navaho provides that in return for the Indians bringing their children to school the Federal Government would furnish for 10 years one teacher for every 30 pupils. The Federal expenditures for Indian education rose rapidly after the Civil War when many non-Indian reservation schools were first established. About a third of the Bureau's budget is now spent for educational purposes.
Appropriations for health services to Indians, which is the most costly Bureau function next to education, began in 1832. While the army medical staff provided some treatment to Indians during the army control, the first hospitals were established under civilian administration between 1880 and 1890. In 1924 a division of health was established in the Indian Bureau. While the regulations permit the charging of fees for medical, dental and hospital service, if the Indians cannot afford to pay such charges, they need not be charged. Such charges amount to only a few thousand dollars per year. Indigent Indians recognized as tribal members are admitted without cost to hospitals, and in tribal hospitals supported by the tribe all tribal members are entitled to free hospitalization. Priority of admission is based on the necessity for hospitalization and the degree of Indian blood. White wives of Indians, Indian children from Government schools, Indian widows of whites or of non-restricted Indians, if residing on reservations, are eligible for admission. Indian wives and children of white men are not admitted unless residents on reservations and participants in tribal affairs.
The common belief that Indians receive rations from the Federal Government is false. At the present time, when relief is given in the form of food and supplies, labor is required of the recipients wherever possible. Relief is frequently given in the form of supplies, food and clothing, rather than cash. All the stores except New Mexico and Arizona provide the Indians with social security benefits. Direct aid is thereby furnished for needy who are aged, children or blind.
The first Government irrigation project on Indian land was begun in 1867 at the Colorado River Indian Reservation in Arizona. At first the Government paid for all these costs. In 1914, however, construction charges for irrigation work became reimbursable on the basis of individual benefits received. To meet the difficulties of collection of these assessments, a statute known as the Leavitt Act was passed in 1932 which authorized the Secretary of the Interior to adjust and eliminate reimbursable charges due from Indians or tribes of Indians. All uncollected irrigation construction charges were
cancelled and no more assessments of construction charges should be made so long as the Iands remain in Indian ownership.
The Indians are liable for operation and maintenance charges, but under an act passed in 1914 an agency superintendent may secure their deferral if the Indian is indigent. Such charges become a lien on the land and makes sale more difficult if the Indian later secures a fee patent.
Credit and forestry management services had their inception in 1908. Federal credit to the Indian was greatly expanded by the Indian Reorganization Act. The revolving credit fund was then established. which is used for loans to Indian tribes and organizations and to a lesser extent to individual Indians. Loans are made for various business, industrial and agricultural purposes. Several tribes have supplemented this fund by establishing tribal loan funds. The Government's loan system to enable Indians to receive a high-school or college education has also been similarly supplemented.
The major divisions which direct the Bureau's economic program were founded in the 1930's.
4. ADMINISTRATIVE: Delegation
Congress has delegated much of its power over Indians to administrative officials. The use of vague terms in Indian law, like guardianship and ward, and the fact that the relationship between the Bureau and Indians for a long time was that of conqueror and conquered have caused some officials to believe that they were in fact, dictators. It is true that Congress has delegated very brood power to administrative authorities, but they act without authority unless vested by a Federal law with express or implied authority.
One of the important ways in which the administrative power is exercised by the central office of a Bureau is by the making of rules which have the force of statutes. To be effective, rules which apply generally and do not merely concern the internal management of the Bureau must be published in a daily publication called the Federal Register. This requirement was laid down by the Administrative Procedure Act.
Another important power is to interpret the meaning of a law. The views of the executive deportment charged with its administration, will usually be followed by the courts, especially if the construction is consistent over a long period of time. This rule is especially applicable if considerable property is affected by the Interpretation.
At one time many statutes gave express power over Indian affairs to the President. Most of the recent statutes refer to the Secretary of the Interior, while some refer to the Commissioner of Indian Affairs or his authorized representative. As the functions of government increased in number and complexity, it become clear that the Secretary or even the Commissioner could not perform all the duties required of them by a statute, and that even the burden of signing many papers was excessive. Powers which are merely ministerial or routine can be delegated by the Secretary or the Commissioner even in the
absence of an express delegation statute. Discretionary authority, which often requires a difficult choice of what to do, presents a more complex problem. To remove any doubt on the question of what could and what could not be delegated, Congress in 1946 passed a law permitting the Secretary to delegate any of his power regarding Indian affairs to the Commissioner and the Commissioner to subdelegate to his principal aides in the central office in Washington and to his administrative assistants in the field. The statute requires, however, that the Secretary publish the rules setting forth how delegated powers should be exercised. It also provides for appeals to him from the decisions of his subordinates. An important power which has been delegated to field officials is the power of the Secretary of the Interior to enter into contracts with states, territories and private nonprofit institutions for the education, medical attention, agricultural assistance and relief of Indians. Federal moneys and Federal facilities may be turned over to such state or private agencies.
5. ADMINISTRATIVE: Tribal Lands
At one time the President and Secretary of the Interior, as well as Congress, were able to establish Indian reservations, but since 1927 the boundaries of a reservation created by an executive order for the use and occupation of the Indians cannot be changed except by an act of Congress. There are two laws which affect this rule. Temporary withdrawals of public land may be made by the Secretary of the Interior, and reservations may be established in Alaska with the consent of the affected Indian communities. The Secretary, except in the states of Arizona and New Mexico, may acquire lands for Indian tribes under two provisions of the Indian Reorganization Act, one permitting the restoration to tribal ownership of surplus lands on Indian reservations formerly open for sale, and the other by acquiring lands through purchase, gift or otherwise, inside or outside of reservations.
It is well recognized that the Indian tribes own land in their possession and have the right to dispose of such land. Many laws, however, prescribe the manner and terms under which Indian land may be sold, leased or otherwise disposed of. The first Indian Intercourse Act passed in 1790 provided that all alienations of Indian land shall be made through some public treaty authorized or executed by the United States. Such treaties generally provided for the sale of Indian land to the Federal Government, but in a few cases private individuals were designated as the purchasers.
Apart from treaties many laws provide for the sale or lease of Indian lands. Usually, but not always, the consent of the Indian tribe or individual owner is required for the sale or lease of Indian lands, timber or minerals. There are sometimes a few exceptions to this requirement. For example, the
Indian Right-of-Way Act of 1948 requires consent except in a few special cases as when the heirs of a deceased owner of the land have not been determined, or the owners are so numerous as to make consent impracticable.
6. ADMINISTRATIVE: Membership
The Secretary of the Interior or an administrative board, like the Dawes Commission, has frequently been granted the power to examine and determine questions of fact concerning tribal membership. In the absence of fraud or arbitrary action, the court will not issue a writ of mandamus or order against such officials if the question involves the exercise of judgment or discretion. Such an order may be issued in a proper case to compel an official to perform a ministerial or routine act.
Right of Discoverer to Land
Rights of Individual Members in Tribal Property
An individual member of a tribe cannot ordinarily sell, devise, mortgage or otherwise dispose of his share of tribal property, unless and until this property is actually divided among the membership by allotment or by distribution of funds. Thereafter it is individual and not tribal property. The individual member generally loses his right to share in the tribal property when he loses or abandons his membership or dies. Hence, if his children are not members, they cannot ordinarily share in any distribution of tribal property. There are three major exceptions to this general rule: (1) The improvements of a member on tribal land have been recognized as his. (2) In some tribes, like the Eastern Cherokee Band of North Carolina, a member who is assigned land has been granted by the tribe the right to transfer or sell his rights to another member of the tribe. (3) Some of the tribes have permitted