XIV. Status and Needs of Unrecognized and Terminated

California Indian Tribes

The Government, which in many instances actively participated in the destruction of tribal communities in California, now sits in critical judgment, through its agencies and the federal acknowledgment process, of the tribal status of these groups. This absurd situation must be changed through effective intervention of Congress. –– Stephen Quesenberry, California Indian Legal Services attorney

Fairness is not our eighth criterion. –– Branch Chief of the Bureau of Acknowledgement, Department of Interior

Introduction

Tribal existence and identity do not depend on federal recognition or acknowledgment of the tribe. Federal recognition does not create tribes, but rather recognizes social/political entities that predate the United States. It creates a trust relationship between the tribe and the federal government, entitles tribes and their members to certain federal benefits, and triggers the operation of a whole body of U.S. law involving respect for tribal sovereignty. In practical terms, it allows tribes to make claims under federal law for the repatriation of their skeletal remains and sacred objects, and to develop gaming and other forms of economic development that take advantage of the tribes' sovereign status. In addition, tribes can receive start–up funds and continuing federal support for their tribal governments, including law enforcement and courts. Federal recognition both introduces federal authority and enables tribes to gain control over their affairs.

More than fifty–five tribes in California remain unrecognized by the federal government. In addition, twelve tribes were terminated during the period of the 1950s–1960s and have not been restored. Over 80,000 individuals are affected. This is the largest group of unrecognized tribal groups and individuals of any state in the United States.[1] The federal government's failure to recognize these groups perpetuates unfair policies directed toward California tribes since the 1850s. Moreover, nonrecognition has produced harmful social and economic consequences for these tribes and their members.

Detailed descriptions of the problems and needs of seven nonrecognized tribes and one terminated tribe are available from responses to a survey that we distributed to groups throughout the state.[2] These responses indicate that tribes seek recognition for four primary reasons: first, and most important,to gain the capacity to protect their sacred and culturally important sites; second, to gain a land base and access to federal Indian job–training and education programs that would benefit their youth and bring employment opportunities to their communities; third, to gain greater control over the quality of life in their communities, especially matters involving child welfare and environmental hazards, but not necessarily through a formal court system; and fourth, to establish eligibility for federal programs designed to relieve poverty within their communities, especially housing and health care programs. Contrary to some widely held views among non–Indians, the desire to establish casino gaming is not driving efforts to achieve recognition. Indeed, many of the groups surveyed began petitioning for recognition before gaming became a lucrative opportunity for some federally recognized tribes.

Current federal administrative procedures for achieving tribal recognition do not provide adequate recourse for California Indian groups. These procedures create a burdensome, time–consuming, and expensive process that most tribes cannot afford to undergo. Moreover, the special history of California groups warrants special procedures tailored to their unique experience. The current set of procedures, designed as a generic package for all tribes, fails to take account of the distinct forms of injustice wreaked upon California tribes that impedes their success in petitioning for recognition and supports a simpler and expedited process.

A Distinctive History

Five sets of events in the history of California Indians created distinct conditions relevant to the question of recognition: (1) the federal government's negotiation of eighteen treaties with California tribes during the 1850's and Congress's refusal to ratify those treaties; (2) creation of lists or "rolls" of California Indians for purposes of distributing land claims judgments during the 1940s and 1960s; (3) creation of public domain allotments for many California Indians who were not settled on rancherias or reservations; (4) provision of services to California Indians; and (5) the termination of 44 California tribes during the 1950s and 1960s. This distinctive history suggests that California tribes should not be subjected to the standard federal process for achieving tribal recognition. Rather, a process should be established that takes the unique needs and special circumstances of California Indian groups into account.

Past Treaty Relations and the Failure to Ratify Treaties[3]

The failure of the United States to ratify treaties with the California Indians creates a moral obligation to recognize the descendants of this mistreatment as Indians. It also provides evidence of formal relations between the United States and certain unrecognized tribes and sets in motion certain mechanisms that should facilitate such recognition.

Before the United States acquired California in the war with Mexico, colonial policies and the mission system significantly disrupted tribal living patterns and populations in California. Soon after California statehood, approximately one–third to one–half of the remaining tribal groups negotiated eighteen treaties with the United States. According to these treaties, the Indians were to settle in large tracts (totaling 8.5 million acres) set aside for their permanent occupation and use, and cede all aboriginal claims to their ancestral lands. Simultaneously, Congress passed two laws that effectively passed all Indian aboriginal lands into the public domain.

In keeping with these treaty provisions, and at the behest of federal officials, large numbers of California Indians moved to the tracts that were set aside for them. Unbeknownst to them, however, pressure from the California congressional delegation prevented ratification of the treaties. Left homeless and vulnerable to starvation, these Indians were further assailed by armed bands of vigilantes who hunted them down as if they were game. The Indian population plummeted by 85 percent between 1850 and 1890, leaving no more than 15–20,000 California Indians.

The unratified treaties were withheld from the American public until 1905. Following disclosure of these treaties, a large public outcry led Congress and the President to establish sixty–one small reservations or rancherias, totaling approximately 7,500 acres, for the settlement of homeless Indians. With passage of the Indian Reorganization Act in 1934, the Indians on each of these tracts were empowered to vote on whether to establish a constitution. Effectively, each of these settlements was recognized as a tribe, regardless of the fact that some included members of different ethnographic/linguistic groups, and many had not continuously functioned as a single social–political system.

Some of the homeless Indians did not choose to move to these reservations or rancherias, however, because the lands were too arid, inaccessible, steep, or remote. Others, like the Gabrielino and the Chumash, did not wish to leave their ancestral areas, even if they lacked a federally protected land base in those areas. Somehow the Indians living outside the rancherias scratched out a living, many of them squatting on national forest lands or working as migrant farmers. Some tried to minimize public awareness of their Indian identity, in order to avoid hostility and discrimination. Yet the individuals and their descendants who failed to achieve recognition by virtue of living on the reservations or rancherias were no less Indians. In many instances, lineage–like "families" continued to live in close proximity to one another, sharing limited resources. Cultural traditions and community leadership were sometimes maintained, albeit with low visibility to the outside world.[4]

Congress's failure to ratify treaties with the California Indians altered tribal organizations and decimated tribal populations. Creation of small reservations and rancherias, followed by the Indian Reorganization Act, reestablished a semblance of tribal organization for some of the affected Indians, but not for all. Many of these remaining groups are the ones now seeking federal recognition. If Congress could authorize recognition for groups via the Indian Reorganization Act, it can do so again, to compensate for the unscrupulous and ruthless means by which it upset tribal patterns. Tribal life was not extinguished altogether in this process; and it is imperative that the federal government recognize the more disguised and subtle forms that tribal organization was forced to take in the wake of nonratification of the treaties.

Furthermore, the fact that the California groups seeking recognition descend from groups that made treaties with the federal government indicates that the federal government acknowledged their tribal existence at one time. Most of the tribes presently seeking federal recognition are named in at least one of the eighteen unratified treaties of 1851–52, and some tribes were even named in up to four of these treaties.[5] Given this prior act of recognition, which is usually a firm basis for treating a tribe as federally recognized, California Indian groups should not be forced to undergo the full rigors of the administrative process.

Establishment of Judgment Rolls

One of the most troublesome problems in establishing recognition of Indian groups is distinguishing truly indigenous peoples from individuals who seek some advantage by falsely presenting themselves as Native American. While this problem is commonly raised with respect to southeastern groups seeking federal recognition, it poses little if any difficulty for groups in California. As a consequence of the claims cases that have been brought by California Indians against the United States in the twentieth century, there are judgment rolls listing the individuals who can rightfully claim to be indigenous to this state. These judgment rolls, which were established for purposes of distributing the judgment funds, purport to list all individuals who "were residing in the State of California as of June 1, 1852, and their descendants now living in said state." The United States Court of Claims rejected all arguments that "the Indians of California," as so defined, were not an "identifiable" group of Indians within the meaning of the claims legislation.

Accordingly, one of the strongest forces impelling California Indian groups to seek recognition is the fact that their members can point to federal government certification of their Indian status. Every nonrecognized tribe we surveyed indicated that a substantial number of their members were listed on the California Indian rolls. It is baffling to these individuals that the federal government can at once affirm their status as Indians and simultaneously force them to petition the government to achieve recognition of that self–same status. Indeed, it is precisely because of this anomaly that Congress has authorized some limited benefits, such as health services, to California Indians who can trace their ancestry to these rolls, regardless of whether these individuals are members of recognized tribes.

Creation of Public Domain Allotments

The General Allotment Act of 1887 provided for the allotting of tribal land to individual members of a tribe or, where there was no tribal land, allotting of land out of the public domain. By the end of the 19th century, there were small areas of tribal lands in California as a result of Presidential executive orders and the Mission Relief Act of 1891. A large number of California Indians remained landless, however. Accordingly, 2,580 public domain allotments were made to California Indians, mostly in parts of the state that were unsuitable for agriculture. Over the years, these lands, like so many other allotted lands, have found their way into non–Indian ownership. Fewer than 200 remain in trust.

Yet the Indians who kept hold of these public domain allotments used the land to maintain cultural ways. If one family in a tribe possessed an allotment, a larger group of that family's relations would separate from the rest of the tribe and settle there. Subgroups were established, with their own patterns of leadership and organization.

Some of the California Indians who have retained public domain allotments are not members of federally recognized tribes. They find it odd and distressing that they can be the beneficiaries of trust land, as well as identified as Indians according to the California Indian rolls, yet have no official status as Indians in the eyes of the federal government. Of course, there can be a difference between recognition of a tribe and recognition of an individual as being of Indian descent. Yet the existence of the public domain trust allotment offers some evidence of a federal responsibility and relationship. It also provides a location for the practice of tribal culture and the gathering of group members. The fact that the group may have splintered in order to survive on smaller, more dispersed lands should not matter for purposes of recognition under these circumstances.

Scott Keep, an attorney in the Office of the Solicitor, Department of Interior, recently told Anne Marie Sayers of the Indian Canyon Nation, an unrecognized group,

In California there are in excess of 3,000 California Indians who are not federally recognized who hold in excess of 18,000 acres of land in trust. The legal opinion in Washington, D.C. is that if you are not a member of a federally recognized tribe, this government cannot hold land in trust for you.

Thus, so long as the federal government exerts the control and provides the services associated with public domain trust allotments, it should carry through on the logical extension of that relationship –– full provision of federal benefits through recognition.

Provision of Services

California Indians have received some services under federal statutes benefiting Indians for many decades, regardless of their membership in nonrecognized groups. For example, the B.I.A.'s Higher Education Grant Program was established 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."[6] 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."[7] Under this definition, members of unrecognized tribes who are at least one–fourth degree "Indian blood" were qualified to receive educational grants, and California Indians who were members of unrecognized tribes received such benefits until 1986, when the B.I.A. amended its regulations to require enrollment in a federally recognized tribe. Past provisions of such benefits is strong evidence of the kind of relationship between the tribes and the federal government that supports recognition.

Termination

In 1954, Congress decided to abandon its trust relationship with a group of tribes that it determined, unilaterally, were ready for full assimilation into non–Indian society. Termination meant an end to federal recognition and the distribution of tribal lands in fee to individual tribal members. By 1958, through the California Rancheria Act, 44 California tribes were identified for termination, with Congress promising them improved roads, water systems, sanitation facilities, and vocational schools before the termination would become effective. While it went about distributing tribal assets and denying federal recognition to these groups, the federal government failed to live up to its promises. Because of inadequate water and sanitation, the lands were rendered uninhabitable and were later sold or passed out of Indian ownership through tax sales or sales born of economic desperation. As a result, the terminated groups brought lawsuits challenging termination on a variety of theories. In 1983, in the case of Hardwick v. United States, 17 northern California tribes were restored through the settlement of a class action. Through other individual cases, all but twelve of the originally terminated groups have been restored. The federal government has not yet, however, fully aided these restored tribes to reestablish their governmental functions.

The policy of termination has been repudiated by Congress and the Executive Branch. Yet the harsh lingering effects on twelve California tribal groups remain. They should not be forced to undergo the rigors of litigation in order to achieve restoration to the status of federal recognition.

Special Difficulties and Requirements of California Tribes in the Federal Recognition Process

In 1978, the Department of Interior adopted new regulations that set forth procedures for establishing a group as a federally recognized Indian tribe, and that authorized the Secretary to publish a list of tribes that were already federally recognized.[8] Before the adoption of these regulations, recognition was accomplished through informal executive branch action, by judicial decree, or by general or special Congressional enactment. Thus many tribes that might have been able to satisfy the pre–1978 criteria are now subjected to a more rigorous process. Designed to regularize the mechanism for recognition, these new regulations presented seven criteria that Indian tribes must satisfy. Since 1978, the policy has been amended and somewhat relaxed at various times, with the most recent and far–reaching amendments in March, 1994. Administration of the regulations is in the hands of the Bureau of Acknowledgment and Research (BAR) within the Department of Interior.

Only twenty–two cases have been resolved through the post–1978 recognition process, commonly known as the Federal Acknowledgment Process (FAP). Over half of the 55 unrecognized tribes in California have initiated FAP petitions, including six of the eight tribes that responded to our survey (see Table XIV–1). None has succeeded, and only one (outside our survey response group) has been denied, the Kaweah Indian Nation. Pursuant to an ongoing legal action, the BAR recognized one other California tribe. Commissioner of Indian Affairs Ada Deer, using her administrative authority, short–circuited the FAP and recognized the Ione Band of Miwok Indians. Thus it is fair to say that no California Indian tribe has successfully navigated the FAP.

The seven criteria set forth for recognition under the FAP provide that a tribe must

(a) be identified as an Indian entity by anthropologists, historians, or other scholars on a substantially continuous basis;

(b) live in a distinct community;

c) submit proof of political influence over its members as an autonomous entity throughout history until the present;

(d) present a copy of the tribe's governing document;

(e) list all tribal members showing that they all descended from a historical Indian tribe;

(f) prove that its members do not belong to any other tribe; and

(g) not be barred, by law, from a formal legal relationship with the United States.

The bureau chief of the BAR has explained that although a petitioning group may once have existed as a tribe and been dispersed or abused by federal policy, the acknowledgment process does not make up for that. According to the regulations, a tribe is a tribe only if it can prove its continuous and cohesive existence since at least the early nineteenth century.[9]

The federal government has taken the position that all Native Americans should fit the criteria set forth in the FAP in order to achieve federal recognition. However, many California Indian tribes should have been recognized previously in accordance with recognition procedures that predate the 1978 regulations. For example, before the 1978 regulations, the federal government extended recognition to tribes if the government had established a reservation for the group, had treaty relations with the group, or had some continuing political relationship such as by providing services to the group.[10] Because of their distinctive history, described above, many nonrecognized groups in California fit this description.

Thus, with promulgation of the 1978 regulations, the federal government has switched the burden of proof from the government to tribes in proving descent from a historical tribe without interruptions from historical times to the present. It is important to note that in California there is a diversity of recognized tribes whose history is analogous to present–day nonfederally recognized communities. Recognized tribes include historic tribes, Indian Reorganization Act tribes, "unterminated" (restored) tribes, (un)organized tribes, (non)reservation based tribes, and tribes with reservations created by act of Congress or federal executive order. Recently the Interior Department attempted to limit the sovereignty of those recognized groups that it denominated "non–historic" tribes, meaning they were often amalgams of members of different ethnographic tribes. But once Congress caught wind of this practice, it firmly directed Interior to cease distinguishing among recognized tribes on that basis.[11] If the recognized tribes in California have these characteristics, it is difficult to understand the exclusion of very similar nonrecognized groups.

It is time–consuming, burdensome, and expensive for a tribe to document how it satisfies the FAP's seven criteria. Expert witnesses, such as anthropologists, and extensive historical research are essential because of the difficulty and complexity of the proof process. Thus, a successful petition usually costs hundreds of thousands of dollars and takes from eight to ten years.

Limited funds are available to unrecognized tribes through a competitive grant process administered by the Department of Commerce's Administration for Native Americans (ANA). Two of the tribes surveyed had indeed received such grants. Yet such support is not always available, and rarely is it sufficient for the task. Thus many unrecognized tribes do not have the resources required to complete the petition. The San Luis Rey Band of Indians in Southern California, for example, has not been able to secure funding for recognition purposes.[12] Another tribe, the Mono Lake Indian Community, has been denied funding through ANA. Indeed, all of the tribes we surveyed complained that they lacked sufficient funds to conduct the background work necessary to support their petitions.

Petitioning for recognition is nearly an endurance contest for tribes. Only 1.5 to 2 petitions are completed each year through FAP. With more than a hundred groups seeking recognition, the process will extend far into the twenty–first century. Exacerbating this problem is the fact that many unrecognized Indian groups have not yet pursued their petitions. Tribes that we surveyed indicated that years passed between the time of filing a petition and receiving a "deficiency" response from the Bureau, and that it was difficult to secure a timely response to their inquiries about the recognition process and criteria.

Out of the seven criteria set forth in FAP, four are especially troublesome for California tribes: (a) being recognized on a continuous basis; (b) living in a distinct community; (c) maintaining political influence over tribal members; and (e) descending from a historical Indian tribe. These criteria are unsuited to the experiences of California tribes as a result of the government policies and distinct history described above. Although the government participated in the disruption of tribal communities while continuing to deal with the Indians of California, it has not intervened to re–recognize the tribal groups.

Section (a) of FAP states that the petitioner must be recognized on a continuous basis from historical times to the present as an American Indian entity. "On a continuous basis" does not take into account the manner in which the federal government intervened in individual community affairs, established reservations and rancherias, reneged on treaties, failed to protect Indian lands, or established public domain trust allotments. Because of such intervention, many groups were broken up and later reorganized. "Continuously" does not allow for a period of interruption greater than forty years. However, there have been no pauses in government policies to remove,relocate, assimilate, or terminate California tribes. As a result, many tribes today have a solid government, but they lack the recognition on a continuous basis. In spite of all the federal policies, the tribes existing today managed to endure.

Another problem California tribes face when petitioning for federal recognition is establishing that tribal members live in a "distinct community." Section (b) of FAP states, "A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present." Again, the continuousness of community life is difficult to document because of previous federal policies. In addition, many tribal members are spread throughout their respective counties or the state because there is no land base set aside for them and there are few jobs available in their respective communities. One example of this problem is the Juaneño Band of Mission Indians. They were scattered by the federal government, and other members have spread out to locate jobs for the purposes of establishing security.[13]

In March 1995, Michael Anderson, Acting Deputy Assistant Secretary of Indian Affairs, wrote that under FAP "there is no requirement that a petitioner for federal acknowledgment have a land base and not having a land base does not have a negative impact upon the petitioner's case."[14] However, without a land base, it is difficult to find a majority of tribal members residing in the same geographic community. The criterion should be interpreted to take account of the informal social networks established within California tribes because there have been no large land bases since the 1800s. The absence of such land bases is, of course, a consequence of Congress's refusal to ratify the treaties of 1851–52.

Another problem with criterion (b) is proving lineage from a specific historic tribe. The insistence on tracing tribal progenitors clearly represents a misunderstanding on the part of the United States government concerning survival of Indian communities through continuous interaction and intermarriage with other Indian peoples. Indian communities (including federally recognized tribes) have been intermarrying with other tribal groups for hundreds, perhaps thousands, of years. The whole notion of tracing one's lineage and proving the lineage is a white concept. Certainly some recognized tribes have similar histories of intermarriage with other Indian people.

Within many California Indian groups, there is an amalgam of many ethnologic tribal groups or individuals. Many tribal groups were decimated by the effects of continuous white encroachment. Many tribes were also weakened due to the expansion of the United States following the mission system. However, the tribal groups have continued to maintain their identity as Indian people and distinct tribal affiliations. Thus, this requirement fails to recognize the assimilation and termination policies that California Indians have had to overcome in the course of maintaining their identities.

FAP's third problematic criterion (c) concerns political influence. Section (c) states, "The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present." In order to establish criterion (c), the tribe must prove direct lineage from a historical tribe as listed in section (b) of FAP. Thus, the problem with (c) is that it is a continuation of (b). Also, the "continuous" phenomenon remains for tribes to prove although their livelihoods were continuously interrupted. This is not to say that California Indian tribes lack traditional governments, but that their governments have been altered by the vast policies of federal and state legislation.

The final criterion that poses a problem is (e), which insists that the tribe descend from a historical Indian tribe. According to (e), "The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity." Although Indian identity can be verified "without doubt or question," the petitioning tribe must descend from a specific historical tribe or historical tribes that combined and have continued to function as a single entity. Acting Deputy of Assistant Secretary of Indian Affairs, Michael Anderson writes that "it is the administration's policy to recognize tribes that have continued to exist." The fact that historic tribes have combined with other tribes does not count for the purposes of federal recognition. "The Federal Acknowledgment Procedure is expressly designed to avoid the splintering of existing tribes." Additionally, most tribes do not have documented histories and the researcher spends many years searching for information.[15]

Because of the complexities, contradictions, and inappropriateness of the criteria, California Indians cannot fairly petition for federal recognition considering the special circumstances they have faced. Many tribes have been displaced throughout the state, changing their geographic areas and influencing them to take measures for survival. For all of these reasons, California Indians should be entitled to a greater than forty-year gap if they are to petition under the current regulations.

Revised Regulations

The latest development in FAP regulations has been the revised Rules and Regulations adopted by the Department of the Interior and the Bureau of Indian Affairs on the "Procedures for Establishing That an American Indian Group Exists as Indian Tribe," 25 CFR Part 83. The effective date was March 28, 1994. The new regulations include substantial changes in the administration process for federal acknowledgment of Indian entities as tribes. These changes were made to clarify the mandatory requirements for federal recognition and to define more clearly the evidence permitted in petitioning to receive acknowledgment.

These new regulations allow the BIA to base its findings on only one of the seven mandatory criteria. The seven criteria basically remain the same. With the revised regulations, less time is needed to evaluate a petition because the BAR does not fully research the petition. "The new regulations have reduced the amount of time and work needed to complete a petition evaluation in cases with little merit, according to BIA officials.[16] It also hopes to reduce the burden of proof in the area of Previous Federal Acknowledgment.

Many unrecognized tribes in California can qualify for recognition by petitioning under previous acknowledgment in the revised regulations, sec. 83.8–Previous Federal Acknowledgment. Tribes can qualify to petition in this manner if they were named in the unratified treaties or listed on federal rolls, i.e., California Indian Rolls.[17] According to Holly Reckord, a group was considered a tribe from the point when either of the previous events occurred. Under sec. 83.8–Previous Federal Acknowledgment, the tribe need only establish identity (sec. 83.7 a), community (sec. 83.7 b), and political influence (sec. 83.7 c) from the point of last recognition. In addition, a tribe must have continued to maintain a relationship with the federal government since the last period of recognition. Although these changes promise to ease the burden of petitioning for California groups, they have not yet yielded any successful outcomes.

Importance of Federal Recognition

It is important that the federal government take responsibility for its past actions towards California Indian tribes. The responsibility must begin with the restoration and acknowledgment of all California Indian tribes. In most cases, unrecognized tribes receive no funding at all from the federal government. All nonrecognized tribes who participated in the survey conducted by the UCLA American Indian Studies Center stated that they need funding to establish networks within their communities, to raise their poverty levels through job training programs and scholarship funds, and to provide health services and economic development. Most tribes have some form of government and maintain traditional values and ceremonies within their community. However, they need recognition to gain land and water rights, to instill pride in their youth, and to exercise fully their religious freedom. Most important, however, is becoming recognized and respected as a (limited) sovereign nation. The experience of the Fernandeño Tataviam tribe, described below, illustrates the problems and needs of unrecognized California tribal groups that responded to the Center's survey.[18]

Fernandeño Tataviam

"We are a small group of Native American Indians trying to survive in a disastrous economic situation."[19]

The 300-member Fernandeño Tataviam tribe was unaware of its status as an unacknowledged Indian group until they were denied the allocation of federal grant funds for their people. They have lived as a community of people and are recognized by other Indian communities as Indian people. They are listed on the California Indian rolls and have a tribal organization. Because the tribe has been unaware of its nonrecognized status, the Tataviam tribe has not sought to obtain recognition. They have only recently mobilized to work on federal recognition. The Fernandeño Tataviam tribe needs to upgrade its community's standard of living. With recognition and the consequent federal grant monies, the tribe hopes to establish funds for education, job training programs, food supplements, and decent clothing for their people.

The Fernandeño Tataviam tribe's greatest strength lies in unity. Through reliance on the community for support and survival, the tribe has been able to endure the lack of government funding. Families play an important part in tribal affairs. All members of the Tataviam are entitled to vote and have a voice in everything that is brought before the tribal council. Although the tribe has a contemporary tribal council, traditional forms of government also remain.

The tribe uses traditional forms of settling disputes among its members. In dispute resolution, the parties involved notify the tribal council of the disagreement. The tribal council then appoints someone to initiate the process of mediation, notifying the persons involved to schedule the time and location. In the mediation process a neutral third person helps the two parties to resolve their differences and to arrive at an agreed–upon solution. The parties are immersed in resolving the dispute, creating ownership in the solution, and producing an agreement they both can accept. The role of the third party is to encourage open and honest communication while remaining neutral throughout the process. The Tataviam do not want a formal court system because the mediation process has been very successful among them and closely follows the rules of a tribal court system. Although dispute resolution is not funded, the tribal council ensures the existence of this method of solving problems.

Despite being unrecognized, the Tataviam tribe maintains a tribal organization and holds monthly meetings. The tribe conducts a powwow, makes presentations in the surrounding communities, deals with dispute resolution, and ensures equality among the members. Every member of the Tataviam tribe has an opportunity to speak on every resolution brought forth at tribal meetings, or to make a written submission. Decisions are made by a majority vote.

Although the Fernandeño Tataviam tribe is not recognized by the federal government, all of its members are listed on the California Indian rolls. Thus individuals are recognized by the government as Indians, but not as a specified tribe. For this reason, Tataviam is eligible to petition for federal recognition under 25 CFR Part 83.8–Previous Acknowledgment. Members of the Tataviam tribe are identified by other Indian people and the surrounding community as Indians. They are recognized as an Indian tribe/community through their participation in public appearances, powwows, parades, etc.

The Tataviam are very poor. They have always had difficulty securing funds, but have survived through community support, special appearances, and private donations. Members of the Tataviam community do not receive federal aid because they are not members of a federally recognized tribe. The tribe does not receive any other monies from other resources or groups. Many members donate their time and money to projects and activities. In addition, the tribe generates money by performing for the general public and by participating in parades and powwows with other Indian tribes in California. Although there are no federal monies or programs available for the tribe, some individual members qualify for some type of aid from federal, state, and county agencies: Tribal leaders estimate that 25 percent receive federal aid, 15 percent receive state aid, and 5 percent receive county aid.[20]

Twenty percent of the members of Tataviam live below the poverty level, and over 35 percent are currently seeking work. According to tribal members, job opportunities are very rare for the Tataviam people because tribal members have neither the experience nor the education needed to compete in today's difficult job market. The only available employment for Tataviam tribal members is retail, and there are no Indian–owned and operated businesses. Consequently, the tribe's most pressing problem is lack of employment opportunities. The tribe's highest priority is job training for their people. If federally recognized, the tribe would hope to obtain federal funds to promote business development. The primary goals of the Tataviam tribe are to educate their youth and to help members find job training programs.

The economic situation of the Fernandeño Tataviam tribe should be reversed. They receive no federal money or programs because they are unrecognized by the federal government. The tribe would like to obtain recognition to protect their sacred sites and way of life, to improve their overall economy, to generate funds for education and job training, which would improve economic well being within their community.

Termination and Its Consequences for California Tribes

Adopted by Congress in the 1950s, termination is the policy of abolishing Indian reservations and removing all governmental power from the Indian tribes. Termination nullifies the federal trust relationship between a tribe and the federal government. As a result of termination, tribal members are expected to assimilate into American society and thus become ineligible for special services provided to Indians by the federal government. A terminated tribe is not listed in the Federal Register as a federally recognized tribe and is ineligible to petition for recognition through FAP.

Although terminated tribes may be, and sometimes have been, restored to recognized status, there are no set criteria for restoration. Terminated tribes have gone through various mechanisms in order to regain recognition (see Table XIV–2). For example, because the government had violated the California Rancheria Act of 1958 by failing to provide promised services, 17 rancherias were restored in the case of Hardwick v. United States.[21] Most of the terminated rancherias have been restored through judicial decisions or settlements guided by California Indian Legal Services. Yet the restored tribes have not received sufficient federal support to enable them to reinstate their land bases and reactivate their governments. And twelve tribes remain terminated. Clearly termination has impeded tribal sovereignty, community and economic welfare.[22]

Pre–termination

Congress was considering terminating the federal relationship with California Indian tribes as early as 1947. There were several bills floating about Congress regarding termination before the policy was actually implemented. From these bills and the California Rancheria Act, it seemed the goal of Congress was to expedite termination in California.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that it is hereby declared to be the policy of the Congress to provide for a termination as quickly as possible of federal supervision over Indian affairs in the State of California, and to place the Indians living in California in the same status as other citizens living in the State. In furtherance of that policy it is the purpose of this Act to facilitate termination of federal supervision over the trust and restricted property of Indian tribes, bands, and groups, and individual Indians in California, and a termination of federal services furnished such Indians because of their status as Indians (Bill 10/25/51 p.1).

The purpose of this 1951 proposed bill was to facilitate the termination of supervision in California regarding all property in trust or restricted status belonging to individuals or tribes.

Regarding the land, Congress was well aware of the implications of termination. Congressional members acknowledged that Indians might well lose or sell their land because of their inability to pay taxes. Furthermore, at least one member noted that when an Indian leaves the land, he has ceased any connection he may have had to that land. To justify termination, this member asserted that California Indians are living on the land by sufferance, and they have no rights to remain on the land. The lands were not bought and not held in trust for any particular Indian or group of Indians, but rather were set aside for California Indians based on their locality.

This characterization of the rancherias does not hold for at least some. For example, the Ruffey Rancheria was purchased for the Ruffey Band of Indians and is referred to as the Ruffey Allotment by the Indians in the area.[23] Thus, this rancheria was established for a specific group of Indians. In addition, when land was set aside for Indians of a particular area, this group would then become a particular assemblage of Indians who have a unique community brought about by the actions of the federal government. Thus, the rancherias established according to location would comprise particular Indians of the locality and would have been bought for certain Indians residing in that location.

In addition to land, the federal government was well aware of funding issues concerning California Indian tribes at the time termination policies were discussed and implemented. Congressional member Sisk stated,

I think it is important that some consideration be given to the fact that California Indians as a whole, over a period of a great many years, have not shared to any substantial measure in federal expenditures.

Congress amended the proposed termination act to ensure that terminated tribes would not receive any federal Indian services. Sisk challenged this amendment by stating that California Indians have been denied most benefits by the Bureau for years and it is not necessary to include provisions that ensure that terminated tribes are not entitled to any services provided by the United States because of their status as Indians. Thus, Congress was fully aware that California Indian tribes were inequitably funded at the time the Rancheria Act was implemented.

One other goal of the Rancheria Act was to terminate Indian tribes without their consent or knowledge of termination. In a letter from Commissioner Myer to the Area Director of the Sacramento Indian agency, Myer emphasized that it is essential to keep section five regarding termination nonconsensual to accomplish "their" (the Bureau's) purpose. Section five includes, "authorizing the issuance of patents in fee to individual Indians after notice but without application or consent."

Provisions of the Rancheria Act

The Rancheria Act, PL 85–671 as amended by PL 88–419, terminated forty–one California Indian rancherias (see table XIV-2). In addition, three other rancherias were terminated as a result of the act. In exchange for the forced distribution of their lands to tribal members, tribes were promised various services. There would be special programs for education and training and improvements of roads, and water systems would be installed or fixed. In addition, individuals who received land distributions would be required to pay taxes and be ineligible to receive federal services.

The promised benefits did not materialize. Almost 160 of the 225 members of the Big Valley Rancheria were terminated without land distributions. Only 67 Indians at this rancheria received homesites.[24]

In the case of Smith River Rancheria, the distribution plan was voted down four times. Hence, the termination act should not have gone into effect according to the Rancheria Act. Section 2 (b) of the Rancheria Act states, "[I]f the plan is approved by a majority of such Indians who vote in a referendum called for that purpose by the Secretary the plan shall be carried out." No reference is made to the acceptance of termination if the distribution plan is not approved.

Conditions Once Terminated

In the 1970s when the Commissioner of Indian Affairs, Louis Bruce, visited California, he saw the hopeless conditions of terminated California Indians resulted from the Rancheria Act. Neither state nor federal governments helped these groups of Indians because each government laid the responsibility upon the other. For example, states reasoned that it was the federal government's responsibility to provide services to Indians while the federal government distributed their funds to those who were legally under their jurisdiction. Thus, it was felt by some that termination was enacted "without even bringing the basic necessities of community living up to a reasonable standard".[25]

As a result, the California Rancheria Task Force was established to investigate the living conditions of terminated Indians. Failure of the government to abide by the Rancheria Act can be established from the reports submitted by two task force teams on the conditions of twenty–six terminated tribes. Through these reports it becomes evident that the government allowed substandard domestic water systems and, in most cases, provided substandard water systems at the time of termination. In addition, the Bureau allowed termination to occur knowing that substandard housing existed in most areas. Due to the negligence of the Bureau of Indian Affairs, terminated tribes were unaware of the opportunities for education and training under Section 9 of the Rancheria Act.

The task forces evaluated 187 households on twenty–six terminated rancherias. Their basic conclusion was:

The majority of homes inspected were substandard in most respects, including but not limited to: poor or no foundation, deteriorated floor joists, siding and roofing; inadequate electrical service or unsafe house wiring; inadequate plumbing often lacking hot water, and insufficient heating equipment that does not provide adequate service throughout the house.

The majority of homes were considered unsafe and unsanitary with inadequate space for the number of occupants living there.

Under the terms of the Rancheria Act, land was distributed to Indians, but water and sanitation were either inadequate or not provided at all in nearly every circumstance. The Indians' housing needs were not addressed either. Most lands distributed to the Indians were either rendered uninhabitable or passed out of their control. Many Indian families sold parcels of their land to pay taxes or failed to pay taxes and risked losing their land through tax defaults. Many families surveyed did not want to make improvements on their land because of the increase in taxes they would have to pay. These improvements would lift their taxes to a level that they would not be able to afford.

Unsanitary health conditions as a result of termination seemed to be one of the largest problems encountered by terminated rancherias. Unsanitary health conditions throughout the rancherias consisted of: substandard homes, open septic tanks, plugged drain systems, inadequate living quarters, lean–to added on to lean–to, people living in storage sheds, and three and four families living together in one- and two-bedroom shacks. Moreover, task force members indicated that virtually every person interviewed was in need of dental attention.

In terms of housing for terminated Indians, most houses were in bad condition and were reported as being eligible for condemnation at any time. Neither Pinoleville nor Redwood Valley Rancheria could comply with any housing code. At Redding Rancheria there was a two-bedroom shack that housed fourteen people with one outdoor privy. One woman at Robinson Rancheria declared that "a good strong wind would blow her house down." In addition, the task force found that only one rancheria, Table Bluff Rancheria, was connected to any approved sewer district out of the 26 rancherias in the study. These are only a few examples of the inadequate housing conditions that the California Rancheria Task Force found on the terminated rancherias.

Water on many rancherias was found to be contaminated. This was the case on Chicken Ranch Rancheria. The water on Chicken Ranch came from an old mining tunnel located in the back of the rancheria. Big Valley Rancheria also had a very serious water problem. Consequently, there were numerous cases of diarrhea and hepatitis. Task force members reported, "The water is not fit for animals." Thus, the federal government failed to implement Section 3 (c) of the Rancheria Act: To install or rehabilitate such irrigation or domestic water systems.

Likewise, the federal government failed to meet Section 3 (b) of the Rancheria Act which promised construction and improvement of roads to meet state standards. The government also failed to convey rights–of–way for roads on terminated rancherias. Inadequate roads and no roads at all presented another problem for the tribes after termination.

Currently houses on the terminated rancherias, as a whole, have inadequate driveways from the main service roads. Very few houses have sidewalks from the driveway to the house entrance. Existing conditions show a need for proper planning and construction of access roads, driveways and sideways to the rancherias.[26]

An example of the federal government's failure to meet Section 3 (b) was found on Graton Rancheria, a nonrestored rancheria. On Graton, the original road to the rancheria property was blocked off by a private owner who would not give a right–of–way.

In addition to inadequate living conditions, other difficulties result from termination. One woman from Auburn Rancheria was fired from the Bureau of Indian Affairs office in Sacramento when the Bureau learned that her tribe was terminated. Another young woman, the granddaughter of Virginia Buck, a member of Cloverdale Rancheria, was visiting her grandmother at the time the list of tribal members was prepared for purposes of termination. As a result, she was included as one of the Indians who lost their eligibility for federal Indian programs due to termination. In fact. however, the granddaughter was a member of a different rancheria that remained recognized. Nevertheless, she lost her eligibility for BIA education benefits. These examples were directly linked to termination and display how the termination policy, when enacted, went beyond the terms of the act.

The termination process was implemented with the assumption that the tribal members were ready to accept full responsibility for their affairs, that they were also ready to become integrated into the mainstream society, and that termination would not pose any federal hardship upon them. These views may have resulted from the testimony of one Frank Quinn, who testified that all of the Indians involved in the process, except for a few, were in favor of termination. However, many tribes were not informed of the termination process and felt that they were being forced into the process. At Elk Valley Rancheria, the people stated that the B.I.A. gave them the choice either to terminate or to move. They were not fully informed of the process and were unaware that they were giving up the rights of their children. Furthermore, even if the Rancheria Act had been fairly implemented, it was never enforced to the full extent of its provisions.

Lower Lake

Although, Lower Lake Rancheria was sold in a termination statute (PL 443), the Indians of Lower Lake Rancheria were not terminated according to the statute or by any other government action. In 1916, funds were appropriated to buy lands under the Act of August 1, 1914, 38 Stat. 583, 589 specifically for the Koi Pomo. These lands were also bought for Lower Lake and Sulphur Bank Indians. Thereafter, the land became called Lower Lake Rancheria. In 1956, the 84th Congress passed Public Law 443, "Conveyance to Lake County, California, of Lower Lake Rancheria." In this act, Congress sold all but one forty-acre lot of the Lower Lake Rancheria to the county of Lake "for the purpose of establishing an airport" (Pearce Airport). Nowhere in the language of these acts is the tribe(s) for whom the rancheria was established terminated, nor is any federal relationship to such tribe(s) forbidden.

Although the Indians of Lower Lake were never officially terminated, they currently are not listed in the Federal Register as a recognized tribe. In a letter to the Sacramento Area Director on October 21, 1980 concerning the non–terminated rancherias, John Geary of the BIA revealed his intention to include Lower Lake Rancheria of Pomo Indians and Strawberry Valley Rancheria of Maidu Indians. Although no objections were found, Lower Lake Rancheria remains without recognition status.

As a result, ACCIP Executive Director Pauline Girvin addressed this issue in a letter to the Assistant Secretary of Indian Affairs in June, 1995. She pointed out that the Lower Lake Rancheria of Pomo Indians "Koi" were slated for publication in the 1981 Federal Register as having a "government to government" relationship with the United States. Furthermore, the Koi tribe qualifies for administrative recognition under the criteria enumerated in the sec. 83.8–Previous Federal Acknowledgment. In this case the tribe need only prove identity (sec. 83.7 a), community (sec. 83.7 b), and political influence (sec. 83.7 c) from the point of last recognition. In this letter, Pauline Girvin presented evidence that the tribe meets each of these criteria and reiterated why they should be recognized in addition to the intention letter sent by John Geary of the BIA.

Coyote Valley

The Coyote Valley Band of Pomo Indians’ situation is analogous to that of Lower Lake. The Act of July 10, 1957 (71 Stat. 283), which transferred the lands of the Coyote Valley Rancheria from the Secretary of the Interior to the Secretary of the Army for use in connection with the Coyote Valley Dam of the Russian River Basin Project, did not terminate the Coyote Valley Band for purposes of eligibility for Bureau services. Although the federal government appropriated Coyote Valley's land in a similar manner to Lower Lake, Coyote Valley is federally recognized.

The status of Coyote Valley was confirmed in a 1977 letter written by the Acting Deputy Commissioner of Indian Affairs to Ira Campbell, Chairman of the Coyote Valley Tribal Council. The act transferred lands from the Coyote Valley Rancheria to the Coyote Valley Dam of the Russian River Basin Project "did not terminate the Coyote Valley Band for purposes of eligibility for Bureau services. They are recognized as a tribe.”

CONCLUSION

Federal policies should be changed and legislation should be enacted to alleviate the problems and unfavorable conditions of unrecognized and terminated California Indian tribes. The past and present policies implemented by the federal and California state governments hinder the development and livelihood of these tribes. Past policies continue to affect individual California Indian communities. Because of this history, there should be legal action to change the status of unrecognized and terminated tribes so they can gain the respect, privileges, religious freedom, and land and water rights that they need in order to reestablish themselves within their communities.

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[1] In 1977, the American Indian Policy Review Commission identified 133 unrecognized communities throughout the United States.

[2] The tribes are Costanoan Rumsen Carmel tribe, Esselen Nation, Fernandeño Tataviam, Indian Canyon Nation, Maidu Nation, Mono Lake Indian Community, Ohlone Mutsen–Rumsen, and Tolowa Nation.

[3] This history is documented in Flushman & Barbieri, "Aboriginal Title: The Special Case of California," 17 Pacific Law Journal 391 (1986). The authors were both Deputy Attorneys General for the state of California.

[4] See Slagle & Davis, "The Special Circumstances of California Indians," Report prepared for the Advisory Council on California Indian Policy, June, 1995.

[5] The 1990 Reservation Field Directory of the California Indian Community, Indian Assistance Program, Department of Housing and Community Development, state of California, 1990.

[6] 25 U.S.C. sec. 13.

[7] 25 C.F.R. sec. 40.1.

[8] See 25 Code of Federal Regulations Part 83.

[9] C. Brown, "The Vanished Native Americans: Unrecognized Tribes," The Nation 384 (October. 11, 1993).

[10] Strickland et al., eds., Felix Cohen's Handbook of Federal Indian Law 80–82 (1982 ed.)

[11] Public Law 103–263 (1994), amending section 16 of the Indian Reorganization Act of 1934.

[12] Information obtained in an interview with tribal member Carrie Lopez.

[13] Interview with Song Johnson, tribal member.

[14] Letter from Michael Anderson to Mr. Russel Peters.

[15] Roessel, "Federal Recognition: A Historic Twist of Fate, 154 NARF Legal Review (1989)

[16] Anquoe, "Mowa Band Denied Federal Recognition," Indian Country Today, Dec. 22, 1944, A2.

[17] Presentation by BAR Chief Holly Reckord at UCLA, October, 1994.

[18] The Center received seven responses from unrecognized tribes.

[19] The following information regarding the Fernandeño Tataviam tribe was gathered by project assistant Patty Ferguson from tribal leaders and community members.

[20] Most of this aid is not directed to them by virtue of their status as tribal members, however.

[21] No. C–79–1710 SW (N.D. Calif.) 7/20/83.

[22] Walch, "Terminating the Indian Termination Policy," 35 Stanford Law Review 1181 (1983).

[23] K. Engalbratson, Report on Ruffeys Rancheria, U.S. Dept. of Inter., B.I.A., December 1958.

[24] V. Johnson, California Indian Rancheria Task Force Report, Calif. Rural Indian Health Board 1972.

[25] California Rancheria Task Force Report, Feb. 2, 1972.

[26] Id. at 19.