September 8, 1972
Page 28888
REVENUE SHARING ACT OF 1972
The Senate continued with the consideration of the bill (H.R. 14370) to provide payments to localities for high-priority expenditures, to encourage the States to supplement their revenue sources, and to authorize Federal collection of State individual income taxes.
AMENDMENT No. 1459
Mr. METCALF. Mr. President, I call up my amendment, No. 1459.
The PRESIDING OFFICER. The amendment will be stated.
The amendment was read as follows: On page 41, between lines 15 and 16, insert the following:
(e) INDIAN TRIBES.– One-fourth of 1 percent (0.25 percent) of the amount available for allocation among the States under this section shall be set aside for allocation and payment to Indian tribes and Alaskan native villages which perform governmental functions. The Secretary shall prescribe regulations for the division of the funds among such tribes and villages which shall generally reflect the policies embodied in this subtitle.
Mr. METCALF. Mr. President, this amendment is cosponsored by the Senator from Montana.
Mr. ROBERT C. BYRD. Mr. President, may we have order in the Senate so that the Senator may be heard on his amendment?
The PRESIDING OFFICER. The Senate will be in order.
Mr. METCALF. Mr. President, this amendment is cosponsored by Senators MANSFIELD, JACKSON, BURDICK, HARRIS, HUMPHREY, PACKWOOD, GRAVEL, KENNEDY, MOSS, MONDALE, BIBLE, MUSKIE, CHURCH, and STEVENS. In addition, Senator HART has asked to be named a cosponsor.
Mr. President, our amendment would provide that Indian tribes, on Federal or State reservations, and Alaskan native villages that perform governmental functions be included in the units of government to receive allocations under the Revenue Sharing Act.
Our amendment is a logical extension of the recognition given tribal governments since the passage of the Wheeler-Howard Act, when we acknowledged the tribes as quasi-municipal corporations for purposes of participation in State, local, and Federal level governmental activities.
We would provide that one-fourth of 1 percent of the total amount available for allocation be set aside for allocation and payment to Indian tribes and Alaskan native villages which perform governmental functions. One fourth of 1 percent is the ratio of Indians to non-Indians. If our amendment is adopted, the allocations would amount to approximately $13 million.
Mr. ROBERT C. BYRD. Mr. President, may we have order in the Senate?
The PRESIDING OFFICER. The Senate will be in order.
Mr. METCALF. Mr. President, in 1960 when I was a Member of the House of Representatives, Senator MANSFIELD and I went over to the old Supreme Court chamber and appeared before Senator Douglas, who was conducting hearings on an area redevelopment bill. We pointed out to him that Indians met every criteria set up in the bill, multiplied several times.
We told of the horribly depressed economic conditions on the seven Indian reservations in the State, conditions that were identical to these found in Appalachia and other areas of the Nation.
The committee recommended and the Senate agreed that Indian tribes should be included. The provision was incorporated in the bill that finally passed.
And in all bills that have been passed since then, such as OEO, and Urban Renewal, the Indian tribes have been declared eligible to participate on the same basis as other municipal corporations.
The Indians need the same help today. According to the 1969 report of the Special Subcommittee on Indian Education, the Indian dropout rate in the Minneapolis public schools was 62 percent; in California it was 70 percent. One-third of the 123 Yakima Indians in a Washington school were reading two to six grades below the median level. In Nome, Alaska, there was a 90 percent dropout rate and in an all-Indian public school near Ponca City, Okla., the rate reached 87 percent at the sixth grade.
The direct effect on the future of these young Indians is graphically illustrated by the rate of Indian unemployment and by their average income.
The Joint Economic Committee's Subcommittee on Economy in Government in its print, "Toward Economic Development for Native American Communities" found that among reservation Indians the average unemployment rate in 1967 was 37.3 percent as compared with 2.3 for non-Indians at the time. Statistics compiled the year before by the Bureau of Indian Affairs showed that unemployment was as high as 79 percent – Fort Berthold in North Dakota – on some reservations.
It stands at 40 percent today, nationwide.
We have to remember, too, that much of the employment on reservations is seasonal. This means, of course, that incomes are lower. The report of the Subcommittee on Economy in Government said:
The vast majority of reservation Indians are living in poverty.
In 1964, the income of reservation Indians was only 32 percent of that of non-Indians, $1,800 annually, as compared with $5,710 annually, for non-Indians.
In 1970 the average Indian per capita income had dropped to $950 as compared to 1970 non- Indian income of $3,900.
Despite the desperate circumstances that the foregoing figures describe, Indian tribes are nevertheless performing governmental functions. There is the Agricultural Extension Service; the Indian Forest Service; these are services performed under contract with the Bureau of Indian Affairs. Then there are law and order functions including courts and policemen, there are schools – under BIA contract using Johnson O'Malley money – and there is welfare and there are roads and sewer systems and housing handled locally where possible.
Out of tribal funds the tribes have sponsored Headstart, Community Action, and other Office of Economic Opportunity programs, they have organized themselves and used tribal funds to match Federal funds to construct housing, sewers, and so forth.
While the non-Indian populations enjoy appropriations for the Agricultural Extension Service and for substantial subsidies to agriculture and at all levels for laws and courts, the Indian tribes as a community have to finance their programs out of Federal appropriations, from the Bureau of Indian Affairs, or out of tribunal funds.
So we have a distorted view of how much we are spending at the present time on Indian people. If we added everything we spend for non-Indian government services, including those that are local such as police and fire protection, sewer and water systems, schools and roads, I think the picture would change substantially.
When we require Indian tribes to perform some of these special functions that they take over from the Federal agencies and local governmental groups, in maintenance of law and order, welfare and other special services that the governmental bodies perform, it seems to me that equity demands that Indian governments share as do other units of government, in the Revenue Sharing Act.
Mr. President, we know the desperate conditions that prevail on Indian reservations respecting employment, income, and education. We know that the tribal governments are nevertheless performing vital government services. Our amendment to the revenue-sharing bill would enable them better to perform their functions for high priority expenditures and place them on an equitable footing with non-Indian units of government.
I urge the adoption of the amendment. Mr. President, Senator MANSFIELD has already called our attention to the support of the National Tribal Chairmen's Association for our amendment. I ask unanimous consent that the endorsement of the National Congress of American Indians be printed at the conclusion of my remarks.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
NATIONAL CONGRESS OF AMERICA INDIANS,
August 4, 1972.
Hon. Lee METCALF,
U.S. Senate, Washington, D.C.
DEAR SENATOR METCALF: We wish to take this opportunity to thank you, once again. for your interest in Indian people and for your attempts to secure a fair shake for our people in various bills which have been introduced in the Congress. In particular, we wish to express our appreciation to you and Senators Mansfield, Jackson, Burdick, Harris, Humphrey, Gravel and Kennedy for the introduction of Amendment No. 1459 to H.R. 14370.
If the revenue sharing legislation becomes law, it is of extreme importance that Indian tribes be included in the concept if the promise of "Self-determination without Termination" is to have real meaning.
We have corresponded with each of the members of the Finance Committee of the Senate asking them to support the adoption of your amendment and to support its passage in the final bill.
Again, thank you. Sincerely yours,
LEO W. VOCU, Executive Director.
Mr. GOLDWATER. Mr. President, will the Senator yield?
Mr. METCALF. I am delighted to yield.
Mr. GOLDWATER. I wanted to ask a question of my friend. This applies to Indian tribes, as I understand it.
Mr. METCALF. This applies to every Indian group that exercises a government function.
Mr. GOLDWATER. I was wondering if the measure might be more easily applied if we confined it to reservations that come under the supervision, control, or observation of the Federal Government. These tribes range in numbers from less than 20 to 150,000. Twenty-five percent of all of our Indians belong to the Navaho Tribe that lives in Arizona, New Mexico, and Utah.
Many tribes are so small that they have no government, and government would be difficult to achieve. The moneys that would come to them under the Senator's amendment I do not believe would do the good the Senator feels it would.
I would suggest that if the Senator changed the word "tribes" to "reservations," the measure would be more readily accepted by those of us who have lived with this problem all our lives.
Mr. TUNNEY. Mr. President, will the Senator yield to me?
Mr. METCALF. May I yield to the Senator from California, who has a similar problem?
Mr. TUNNEY. It is a similar problem, but I take almost exactly the opposite tack from the Senator from Arizona. I was prepared to offer an amendment to add after the word "tribes" a comma followed by "bands, groups, pueblos, and communities." The reason for that is that
in California, and I am sure in other States as well, we have a unique problem. In the 1850's, the Indians in California were promised by the Federal Government reservation lands. Many Indians moved from the place of their habitation in reliance upon the Federal Government's promise of landed areas which they expected would be reservations. The Government never gave them reservation lands except in certain few instances in the late 19th and early 20th centuries. But the great majority of our California Indians were not given reservation land.
We now have approximately 6,000 Indians in California living in rancherias and reservations at least and 25,000 non-urban Indians not living on rancherias and reservations. There are approximately 9,000 urban native California Indians living in California today, and clearly the amendment of the Senator from Montana, as amended by my amendment, would not apply to them.
With respect to those Indians who live in bands, groups, pueblos, and communities and perform governmental services, and live on rancherias, or otherwise, it seems only fair that they should be able to participate in this revenue-sharing bill.
Mr. METCALF. I yield now to the Senator from Arizona.
Mr. GOLDWATER. Mr. President, I am well aware of the problem in California, and I am not very proud of the way our Government has acted in that case. If we made the wording "Indian tribes," I do not think it would take care of the situation. However, if we made it "reservation," which I strongly recommend, then I think some language along the lines the Senator from California suggests, relating "reservations" to these people who have been terminated, would be in order. I think it is going to be extremely difficult to even allocate money among the hundreds of tribes that we have, all of whom have different problems and are located all the way from the north of Alaska to the tip of Florida. Each one of these tribes has a different problem, but if they have no government I do not know to whom it is going to be allocated.
I think all reservations – I do not know of any that does not – have governments. I think this is a good idea, but I am worried about the hundreds of tribes that have no governments that are more or less family affairs. How are we going to handle the allocation of those funds and feel that the good that could come from them will come? That is what puzzles the Senator from Arizona.
Mr. METCALF. May I respond to the Senator from Arizona by saying that is why we wrote into the measure those Indian groups that are exercising governmental functions. There are urban Indians, and may live in Los Angeles, Seattle, Minneapolis, and all over the Nation, who are members of tribes, but they do not participate in or exercise governmental functions. But there are Indians under the Wheeler-Howard Act, and there are bands of Indians with responsibility over sewers and other services, law and order, maintaining Indian courts, and those people exercise the same functions that the municipality nearest them exercises for the non-Indian population. That is why we have said, not reservations, but those groups that are governmental in fact as well as in law.
Mr. GOLDWATER. Mr. President, if the Senator will continue to emphasize that language, so that when the Bureau of Indian Affairs deals with this measure, as they do with everything else – to the detriment of the Indians, I might say – there will be no question about it, then I think he will be performing a good service.
I understand that language, and I think it is exactly the kind of language we should emphasize if we want to make sure that this money goes to those groups, tribes, and bands performing a governmental function.
I want to make this perfectly clear because, frankly, the BIA, like all Government agencies, rather scares me as to what they will do with this well-intentioned piece of legislation after they get their hands on it.
Mr. METCALF. I certainly concur. I want to make it crystal clear that the persons who get the benefits of this bill are those who perform the same functions that States and municipalities are filling. They have courts, they have water and sewage systems, they have schools to support, they have jails, and they have all the problems of other units of government. This is not a bill for the relief of individual Indians; it is a bill to recognize our responsibility to those Indian tribes which do some of those jobs the adjacent communities are doing.
Several Senators addressed the Chair.
Mr. METCALF. I yield to the Senator from Kentucky.
Mr. COOK. Mr. President, obviously we do not, in my State, have any of the problems the Senator is talking about. The thing that bothers me, and I wish someone would try to explain it, is that everything else in this book – the State, the county, the city – has a boundary. It is a specific unit of government established statutorily, under the respective sovereignty of the States, according to the statutory law of the respective States that established the boundary lines of the county or the boundary lines of the city. So we know that there is a specific legal entity that is established and created.
The thing I am puzzled about, and would hope that some language could be gotten together on – I must say, in my own mind, that if in fact there is a unit of government that is run by an Indian tribe, that has a school system or a sanitary sewer problem, or a health department, it has got to be an established form of government under the respective laws of the State or those provided by the Federal Government for a territorial jurisdiction.
I wonder whether, somehow or other, this can be defined that way. I am worried about this kind of fluid thing, that could encompass several counties, or could encompass territories in, let us say, two different States. That is what bothers me about this. If there is some way that it really could be defined, I think it would be better, because, as I said just a minute ago, everything else that is in this bill is specific to either a legal or statutorily created unit of government.
I am just wondering if something can be found. As a matter of fact, that is why I thought the word "reservation" might be appropriate, but I now find it is not, because that is a specifically defined territory. A metes and bounds description could be established. It is created as a separate unit of government.
I merely present this as a question. Can it be done that way? Can the distinguished Senators from Montana, California, and Arizona come up with some kind of language, so that we will not have some kind of a fluid form of government within revenue sharing that is going to take a percentage of revenue, so that conceivably we could get into an argument, on the Arizona- California border, where some from one State goes to it and some from another State goes to it, so that we could get ourselves into a serious extraterritorial argument?
Several Senators addressed the Chair.
Mr. METCALF. I would be delighted to respond, but I yield to the Senator from Arizona.
Mr. FANNIN. Mr. President, I express my appreciation to the Senator from Kentucky, because he has raised questions which troubled the committee. The committee had great sympathy for the amendment of the Senator from Montana, but it was very difficult to determine how it could be applied.
Further to emphasize the great problem that will accrue to the Secretary who will be administering this fund is the language which states that he is supposed to "prescribe regulations for the division of the funds among such tribes and villages which shall generally reflect the policies embodied in this subtitle."
I understand from the Senator from Montana that this would be on a per capita basis. But if it is on a per capita basis, is it really carrying through with the intent of this revenue sharing legislation? Because, as the Senator from California has set out, they may have problems as far as sewage is concerned and they may have problems as far as water systems are concerned. How do they work that out on a per capita basis? I would like to pose that question to the Senator from Montana.
Mr. METCALF. Let me assure the Senator from Arizona and the Senator from Kentucky that while perhaps it is a little bit easier to say that here is the geographical boundary of a county or a municipality or a city, these are groups of American Indians who are organized under Federal statutes, and are exercising governmental functions. These are groups of people. Sometimes they are on a reservation. As far as the Indians in California are concerned, they are not on a reservation, but they perform certain governmental activity.
We have recognized them under urban renewal, under Headstart, and under Upward Bound, and we have been able to administer those programs. When they come in and say, "Look, we are the same as any other municipal corporation, and we want a housing project," we give them
a housing project. When they say, "We want to have a community action program," we give them that.
An Indian tribe is a little more fluid than, say, a certain specific county, but it is ascertainable that these Indians, who are organized under Federal statutes and participate in organizations – we can find out what they are doing. If the Senator from Kentucky had to go into an Indian court, he would know full well where the jurisdiction of the court was, because it is defined, and they do do the things that the nearby municipalities do. They have jails, they have courts, they have law enforcement officers, they have schools – they have all the things that governmental units with definite boundaries have.
Mr. COOK. Mr. President, will the Senator yield?
Mr. METCALF. I am delighted to yield.
Mr. COOK. The Senator mentioned that they have jails, law enforcement officers, and schools. Is there a territorial basis by which they can derive income for the purpose of maintaining those facilities?
Mr. METCALF. No; and that is what is wrong with the way we are treating the American Indian today. That is something I am trying to cure by this legislation. They are being required to support many of these organizations out of private income – rental of private property, sale of private cattle, income on natural resources such as coal and oil, and so forth – that, if it were a non-Indian population, would be distributed among the owners of a corporation. They do not have any tax base, and in order to participate in community action program benefits, they have to divvy up some of the money they get from Indian claims to make up their matching funds.
Mr. TUNNEY. Mr. President, will the Senator yield?
Mr. METCALF. I am delighted to yield.
Mr. TUNNEY. Mr. President, I completely concur with what the distinguished Senator from Montana has said. I should like to reiterate to the Senator from Kentucky that the problem we have in California, as an example, is that we have only 6,000 of our 45,000 native California Indians living on rancheros or reservations. Actually, we probably have many more than 45,000 Indians in California. Recent hearings held there indicate there are at least 90,000.
Mr. COOK. Mr. President, will the Senator yield?
Mr. TUNNEY. I yield.
Mr. COOK. Those who live in Los Angeles and San Francisco are citizens of those communities.
Mr. TUNNEY. And they will be treated as such, as they should be.
We are not talking about them. We are talking about the rural Indians who exercise governmental functions. I should like to emphasize and underline the phrase "governmental functions."
I think the distinguished Senator from Arizona (Mr. GOLDWATER) made the point very clearly that he feels that the people to be affected should be performing a governmental function in order to get any money, and I feel the same way. I do not think we should be handing out this money on a per capita basis to individual Indians. We are not talking about that. We are talking about giving it to a band or a tribe or a group of Indians that is legally distinguishable and which has dealt with the Bureau of Indian Affairs in the past as a legal entity.
If the distinguished Senator from Montana would yield to me for the purpose of offering an amendment to this amendment, I should like to offer the amendment at this time.
Mr. METCALF. I yield.
Mr. TUNNEY. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
On line 4 of the first page of the amendment, immediately after the word "tribes", insert a comma and the following: "bands, groups, pueblos, communities,". On line 2 of the second page of the amendment, immediately after the word "tribe", insert a comma and the following: "bands, groups, pueblos, communities,".
Mr. METCALF. Mr. President, I am delighted to accept that amendment, provided the record shows and it is clearly understood today that these tribes, bands, and other units have to be performing a governmental function.
Mr. TUNNEY. Absolutely.
Mr. METCALF. Just as the Indians on a reservation have to be. I think we should accept the Indians that the Senator from California wants to have included.
We should make it clear that we want those Indians included in this, but again let us emphasize the fact that they have to be doing something that is analogous to the governmental function of adjacent communities.
Mr. TUNNEY. Absolutely. It is on that basis that I offer the amendment.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. METCALF. I yield.
Mr. MUSKIE. I have followed the discussion with interest, because I am a cosponsor of this amendment. It applies, as I understand it, to Indian tribes in Maine.
I am disturbed with respect to the explanation of the Senator from California of his amendment. I believe it was suggested in the colloquy with the senator from Kentucky that this amendment would apply only to Indian tribes that are subject to the jurisdiction of the Bureau of Indian Affairs.
Mr. METCALF. No.
Mr. MUSKIE. If that is the intent of the amendment, I am particularly concerned about it, because the two tribes in Maine that are involved have never been acknowledged by the Bureau of Indian Affairs as a trust responsibility. As a result, they have had difficulty with Federal agencies over the years in getting the advantage of programs identified by Congress as intended to benefit Indian tribes on Indian reservations. I would like it to be explicitly clear – to coin another phrase – that the amendment is designed to cover such communities of Indians as well as those that are under the jurisdiction of the Bureau of Indian Affairs.
Mr. TUNNEY. There is no question that my amendment is intended to do just as the distinguished Senator from Maine suggests. It is not circumscribed to just those Indians that have a legal identity recognized by the Bureau of Indian Affairs. I did not intend to convey that impression. I was saying that some of the non-reservation bands in California who are exercising governmental functions have been recognized by the Bureau of Indian Affairs. But I was not attempting to circumscribe the group of Indians to be covered just to those who have been recognized by the Bureau of Indian Affairs. Under the language of my amendment, the Indian tribes in Maine, irrespective of whether they have been recognized by the Bureau of Indian Affairs, if they are performing governmental functions, would be included.
Mr. MUSKIE. I was certain that that was the Senator's intention.
Mr. METCALF. I say to the Senator from Maine that that was one of the reasons why I objected to the proposal of the Senator from Arizona (Mr. GOLDWATER) – that it would be easier just to say that we will apply this to Indian reservations. But there are areas and there are groups and there are bands and there are tribes that do not come under the Bureau of Indian Affairs which do exercise some of these governmental functions that we are trying to assist the cities and the towns in carrying out; and we should assist the Indians who are exercising analogous functions.
Mr. MUSKIE. I appreciate that explanation. It was my understanding, consistent with my understanding of the thrust of the original amendment, and now I am reassured by the Senator from California. I accept the explanation, and I appreciate the reassurance.