Amicus Curiae Brief — Morton v. Ruiz

In THE | Supreme Court, U.

SUPREME COURT OF THE UNITED STATES 1 L E D

G 7 19

OcToBer Term, 1973 ” 3

MICHAEL RODAK, oR.

72-

No e #-1052

Rocers C.B, MorTON, SECRETARY

OF THE INTERIOR,

PETITIONER

Vv,

Ramon Ruiz AND ANI Ta®Ruiz,

RESPONDENTS,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR CALIFORNIA INDIAN

LEGAL SERVICES, AMICUS CURIAE

Lee J. Sclar

Bruce R. Greene

Herbert A. Becker

CALIFORNIA INDIAN LEGAL ~

SERVICES

2527 Dwight Way

Berkeley, California 94704

j : Amicus Curiae In

Support of Respondents

PPR Te LOL ENTE PEN TNE. og OY, FINS RR IIAT Fe ani meee Lacy PURE CUE

INDEX

Page

INTEREST OF AMICUS CURIAE 1

STATEMENT OF THE CASE 3

“SUMMARY OF ARGUMENT : 5

ARGUMENT 7

I. THE SNYDER ACT MAKES EVERY

INDIAN ELIGIBLE FOR BIA .

PROGRAMS EXCEPT WHERE AN

APPROPRIATION ACT LIMITS

THE CLASS OF BENEFICIARIES 7

II. NEITHER THE FISCAL 1968

INTERIOR DEPARTMENT APPRO-

PRIATION NOR SUBSEQUENT

APPROPRIATIONS LIMIT BIA

GENERAL ASSISTANCE TO ON-

RESERVATION INDIANS 14

A. The Lack Of A Geographic

Limit On Recent General

Assistance Appropriations

Contrasts Sharply With

Geographic Limits On Other

Programs In The Same Laws

And On The General Assis-

tance Program In Prior BIA

Appropriations. 14

B. Congress Has Not Ratified

The BIA's General Assis-

tance Policy By Not

Expressly Repudiating It 22

C. The Legislative History Of

Recent BIA Appropriations

Does Not Support A Reser-

vation Only Policy For BIA

General Assistance

SISTENT WITH THE SNYDER ACT,

UNAUTHORIZED BY APPROPRIA-

TION STATUTES, AND THERE-

FORE VOID — 39

Iv. 66 BIAM 3.1.4(A) ARBITRARILY

EXCLUDES OFF-RESERVATION

INDIANS FROM BIA GENERAL

ASSISTANCE IN VIOLATION OF

THE FIFTH AMENDMENT 43

CONCLUSION 55

TABLE OF AUTHORITIES

Page

CASES

Acosta v. San Diego County, 272

P.2d 92 47, 48

Alaska Pacific Fisheries v.

United States, 248 U.S. 78 38

Berends v. Buttz, 357 F.Supp. 143 25

Begay v. Sawtelle, 88 P.2d 999 48

Board of County Commissioners v.

Seber, 318 U.S. 705 6, 43, 48, 50, 52

Borak v. Biddle, 141 F.2d 278 25

Brown v. Board of Education,

' 347 U.S. 483 53

Choate v. Trapp, 224 U.S. 665 38

Croy v. Morton, No. S-2305

(E.D.Cal) 2

Dandridge v. Williams, 397 U.S. 471 54

_ D. C. Federation of Civic Asso-

ciations, Inc. v. Airis, 391

F.2d 478 31

Ex Parte Collett, 337 U.S. 55 ll, 38

=ii-

Ex Parte Endo, 323 U.S. 283 29, 30

Federation Maritime Commission

v. Seatrain Lines U.S.

(1973) 42

Frontiero v. Richardson, U.S.

(1973) 55

Graham v. Richardson, 403 U.S. 365 52

Greene v. McElroy, 360 U.S. 474 30

Gutknecht v. United States, 396

U.S. 295 13

Leecy v. United States, 190 Fed.

289 40

Manhatten General Equipment

Company v. Commissioner of

Internal Revenue, 297 U.S. 129 39

Mescalero Apache Tribe v. Jones,

U.S. (1973) 49

NLRB v. Brown, 380 U.S. 278 39

New Jersey Welfare Rights

Organization v. Cahill,

U.S. (1973) 55

Order of Railway Conductors v.

Swan, 329 U.S. 520 23

Organized Village of Kake v.

Egan, 369 U.S. 60 40

Piercy v. Tarr, 343 F.Supp.

1120 24

Shapiro v. Thompson,

394 U.S. 618 52

Smith v. Director of Internal

Revenue, 332 F.2d 671 13, 14

Social Security Board v.

Nierotko, 327 U.S. 358 39

Squire v. Capoeman,

351 0.8. 1 38

-iii-

State Board of Public Welfare v.

Board of Commissioners of

Twain County, 137 S.E.2d 801

Townsend v. Swank, 404 U.S. 282

United States Department of

Agriculture v. Moreno,

U.8~ (1973)

United States Department of

Agriculture v\, Murry,

U.S. (1973)

United States v. Vulte,

233 U.S. 509

United States v. Wise,

370 U.S. 405

Weber v. Aetna Casualty &

Ins. Co., 406 U.S. 164

40,

22,

CONSTITUTION, STATYTES, AND REGULATIONS:

Fifth Amendment

5 U.S.C. §552

25 U.S.C. §2

§9

§13 (Snyder Act)

42 U.S.C. §2000d

44 U.S.C. §1507

54 Stat. 611

55 Stat. 303

60 Stat. 237

81 Stat. 59

82 Stat. 425

83 Stat. 147

2, 4-14, 19,

39, 40, 42,

14, 15,

15,

15,

50

50

24

16

21

24

16

16

16

84 Stat. 669 ¢ 15, 16

85 Stat. 229 15, 16

86 Stat. 508 15, 16

25 C.F.R. §31.1 41

§32.1 41

O BIAM 1.2.A 23

66 BIAM 3.1.4(A) 65 60°F, Bi 345 OO.

39-43, 46, 47, 51-55

Indian Affairs Manual (superseded),

Vol. VI, Part VI, Ch.3,

Section 301.03 53

66 IAM 3.1.3 (superseded) 53

LEGISLATIVE HISTORY:

H.R. 4590, 77th Cong., lst Sess. 16, 21

H.R.- 9621, 87th Cong., 2d Sess. 22

H.R. 6279, 88th Cong., lst Sess. 22

H.Rpt.No. 275, 67th Cong., lst Sess. 8

H.Rpt.No. 1405, 89th Cong., 2d Sess. 35

H.Rpt.No. 1538, 89th Cong., 2d Sess. 35

H.Rpt.No. 206, 90th Cong., lst Sess. 35

H.Rpt.No. 343, 90th Cong., lst Sess. 35

H.Rpt.No. 1395, 90th Cong., 2d Sess. 35

H.Rpt.No. 1664, 90th Cong., 2d Sess. 36

H.Rpt.No. 361, 9lst Cong., Ist Sess. 36

H.Rpt.No. 570, 91st Cong., lst Sess. 36

H.Rpt.No. 91-1095, 9lst Cong., 2d Sess. 36

H.Rpt.No. 91-1321, 91st Cong., 2d Sess. 36

H.Rpt.No. 92-308, 92d Cong., lst Sess. 36

H.Rpt.No. 92-386, 92d Cong., lst Sess. 36

~

\

H.Rpt.No. 92-1119, 92d Cong., 2d Sess. 37

H.Rpt.No. 92-1250, 92d Cong., 2d Sess. 38

H.Rpt.No. 93-322, 93d Cong., lst Sess. 38

.S.Rpt.No. 294, 67th Cong., lst Sess. 8, 9

S.Rpt.No. 366, 77th Cong., lst Sess. 21

S.Rpt.No. 2664, 84th Cong., 2d Sess. 46

S.Rpt.No. 1154, 89th Cong., 2d.Sess. 35

S.Rpt.No. 233, 90th Cong., lst Sess. 35

S.Rpt .No. 1275, 90th Cong., 2d Sess. 35

S.Rpt.No. 420, 9lst Cong., ist Sess. 36

S.Rpt.No. 91-985, 91st Cong., 2d Sess. 36

S.Rpt.No. 92-263, 92d Cong., lst Sess. 36

S.Rpt.No. 92-921, 92d Cong., 2d Sess. 37

61 Congressional Record 4659-4660,

4671-4672, 4684, 6529 8, 9, 13

87 Congressional Record 4671 21

108 Congressional Record 74 22

109 Congressional Record 8544 22

117 Congressional Record $2409 44

119 Congressional Record H5490 35, 37

Hearings on the Interior Department

Appropriation Bill, 1924, before

the House Committee on Appropriations,

67th Cong., 4th Sess. 28

Hearings on Department of the Interior

-and Related Agencies Appropriations

For 1969 before a subcommittee of

the House Committee on Appropriations,

90th Cong., 2d Sess. 32

Hearings on Department of the Interior

and Related Agencies Appropriations

For 1970 before a subcommittee of

the House Committee on Appropria-

tions, 9lst Cong., ist Sess. 44

-vi-

REN Siem TREO 29 ARATE CR YORE NA OS SN | ON EET MONE ENN

Hearings on Department of the Interior

and Related Agencies Appropriations

for 1972 before a subcommittee of

the House Committee on Appropriations,

92d Cong., lst Sess. 33, 34, 42, 45

Hearings on Department of the Interior

and Related Agencies Appropriations

For 1973 before a subcommittee of

the House Committee on Appropria-

tions, 92d Cong., 2d Sess. 28, 37, 45

Hearings on H.R. 4590 before a sub-

committee of the Senate Committee

on Appropriations, 77th Cong.,

lst Sess. 21

Hearings on H.R. 3838 before a sub-

committee of the Senate Committee

on Appropriations, 8lst Cong., lst

Sess. 27

Hearings on Department of the

Interior and Related Agencies

Appropriations For Fiscal 1965

before a subcommittee of the

Senate Committee on Appropri-

ations, 88th Cong., 2d Sess. 31

Hearings on Department of the

Interior and Related Agencies

Appropriations For Fiscal Year

1968 before a subcommittee of

the Senate Committee on Appro-

priations, 90th Cong., lst Sess. 31, 32

Hearings on Department of the

Interior and Related Agencies

Appropriations For Fiscal Year

1969 before a subcommittee of

the Senate Committee on Appro-

priations, 90th Cong., 2d

Sess. 32, 35

Hearings on Department of the

Interior and Related Agencies

Appropriations For Fiscal

-vii-

ee ———

Year 1971 before a subcommittee

of the Senate Committee on

Appropriations, 9lst Cong.,

2d Sess. 32

Hearings on Department of the

Interior and Related Agencies

Appropriations For Fiscal Year

1972 before a subcommittee of

the Senate Committee on Appro-

priations, 92d Cong., lst

Sess. 32, 37, 45

Hearings on.Department of the

Interior and Related Agencies

Appropriations For Fiscal Year

1973 before a subcommittee of the

Senate Committee on Appropria-

tions, 92d Cong., 2d Sess. 28, 29, 34

MISCELLANEOUS :

Cahn, Our Brother's Keeper: The

Indian In White America 44

Commissioner of Indian Affairs,

Report For The Year 1866 11

Commissioner of Indian Affairs,

Report To The Secretary Of

The Interior, 1908 11

Deschler, Constitution, Jefferson's

Manual and Rules of the House of

‘ Representatives of the United

States, Ninety-Second Congress,

H.Doc.No. 439, 9lst Cong., 2d

Sess. Ze. Oe. Be ae

Goodrich, The gal Status Of The

California mee Tq Calit.

L.Rev. 157 50

Johnson, American Indians in Rural

Povert in Toward Economic Devel-

opment For Native American Com-

munities, A Compendium of Papers

Submitted to the Subcommittee on

-viii-

DD) cehaninaaiie tse Peete ee

Economy In Government of the

Joint Economic Committee, Con-

gress of the United States,

9lst Cong., lst Sess. (Comm.

Print 1969) : 43, 44

Memorandum from the Assistant

Solicitor, Division of Indian

Affairs, Department of the

Interior to the Commissioner

of Indian Affairs, Dec. 9,

1971 10

President Nixon's Message To

Congress On Indian Affairs

of July 8, 1970, 6 Weekly

Compilation of Presidential

Documents 894 44

Random House Dictionary of the

English Language 10

Rule XXI.2 of the House of

Representatives 7

Rule XVI.2 of the Standing

Rules of the Senate 9

Sclar, pertact perros Lo off-

Reservation ans r ams

Of The Bureau Of Indian

Affairs And The Indian Health

Service, 33 Mont.L.Rev. ISI” 11, 37, 42°

een ere 44, 45, 49, 50

Senate Manual, S.Doc.No. 92-1,

92d Cong., . 9

United States Department of

riculture, Economic Research

rvice, Rural Indian

Americans in Poverty (Agri-

cultural Economic Report

No. 167) 44

United States Department of Commerce

Bureau of the Census, Fourt@@hth

Census of the United States

-ix-

tthe te tee te

Taken in the Year 1920,

Population, Vol. II 12

United States Department of the

Interior, Federal Indian Law 45, 48

Eee

+

: In THE

SUPREME COURT OF THE UNITED STATES

OctoBer Term, 1973

No. 72-1052

Rocers C.B. MorTON. SECRETARY

OF THE INTERIOR,

' PETITIONER

Vv,

RAMON RuIzZ AND ANITA Ruiz,

RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR CALIFORNIA INDIAN

LEGAL SERVICES, AMICUS CURIAE

INTEREST OF AMICUS CURIAE

This case will decide whether

statutes and ‘the Constitution empower the

Bureau of Indian Affairs to exclude off-

reservation Indians from the Bureau's

general assistance program.

California Indian Legal Services

“je

Le. TT LS 7 SNe SeESRES En

——

- -y

(CILS) has a twofold interest in the out-

come. e

First, CILS represents the plaintiffs

in Croy v. Morton, Civil No. S-2305,

United States District Court for the

Eastern District of California, Those

plaintiffs assert the right of off-reser-

vation rural California Indians to share

in the BIA's housing improvement program.

Housing improvement, like general assis-

tance, is part of the BIA welfare program

funded under 25 U.S.C. §13.

Croy was filed December 22, 1971.

The district court has suspended all pro-

ceedings pending the disposition of this

case. |

California Indian Legal Services

also has a more general interest in this

case. Over 85,000 Indians in California

live off-reservation -- a higher number

than in any state except Oklahoma. Less

than 15% of native California Indians and

only 6% of all Indians in California

live on reservations. Among those states

with 20,000 or more Indians only Alaska

and Oklahoma have a lower percentage of

reservation residents. Morton v. Ruiz

thus has enormous significance for poor

California Indians to whom CILS provides

-2-

cee

free legal assistance.

STATEMENT OF THE case?

Respondents Ramon and Anita Ruiz are

husband and wife and members of the Papago

tribe.”

In 1940 they left the Papago Reser-

vation to find employment. Ramon Ruiz was

hired by a mining company in Ajo, Arizona,

a town 15 miles away. The Ruizes settled

in the part of Ajo populated almost entirely

by Papagos and known as “Indian Village."

The Ruizes have 1ivéa in Indian Village ever

since. They have a minor daughter. Their

principal language is Pagago.

-¥rom July 1967 to March 1968 a strike

closed the mines where Ramon Ruiz is and

has been employed continuously since 1940.

Mr. Ruiz was unable to find other work.

His sole income was $15 per week in union

strike benefits. Mrs. Ruiz added $8 per

week by working four hours per day, two days

a week at $1 per hour. (A. 18-19.) _

Mr. Ruiz sought state welfare.

Because his $15 per week was from a union,

tevin

1. This statement of facts is based

upon the Agreed Statement of Facts (A.45-

48) and the Court of Appeals’ opinion, Peti-

tion For A ‘rit Of Certiorari, Appendix A.

-~3-

SY PA PY SSS SSNSLe HPSS ATONE RPE

the Arizona Department of Public Welfare

ruled Mr. Ruiz ineligible.

The Ruizes then applied for general

assistance benefits from the Bureau of

Indian Affairs. On December 13, 1967,

the Bureau turned the Ruizes down. The

sole reason was that Part 66, Section

3.1.4(A) of the Bureau of Indian ‘Affairs

Manual (hereinafter cited as BIAM) re-

quires a general assistance recipient to

live on a reservation except in Alaska

and Oklahoma. An Indian striker and his

wife residing on a reservation with a

child and receiving Mr. Ruiz' union bene-

fits plus the eight dollars a week Mrs.

Ruiz received at her dollar an hour job

would have been granted BIA general assis-

tance. (A-21.)

After two fruitless administrative

appeals the Ruizes filed suit on February

19, 1968. They claimed that 66 BIAM

3.1.4(A) is illegal and unconstitutional.

The district court granted the Government

a summary judgment without any opinion.

The court of appeals reversed. It held

that 66 BIAM 3.1.4(A) is inconsistent

with the unambiguous terms of the Snyder

Act, 25 U.S.C. §13, and is not sanctioned

by later appropriation laws.

=g-

SUMMARY OF ARGUMENT

The Snyder Act, 25 U.S.C. §13, directs

the Bureau of Indian Affairs to expend

appropriations for “assistance of the

Indians throughout the United States."

The act gives the BIA no discretion to

restrict that class of assistance recipi-

ents. The act's sole purpose was to stop

individual Congressmen from striking,

without a vote, parts of BIA appropriation

bills which, contrary to House rules, had

not been previously authorized. The

Snyder Act supplies the needed all-inclu-

sive authorization by making all Indians

the beneficiaries of all appropriations.

Congress may limit. the class of assistance

recipients in an appropriation act; but

if it does not do so, the BIA must assist

“the Indians throughout the United States,"

i.e. all Indians.

No recent BIA appropriation, including

that for fiscal 1968, has limited BIA

general assistance to on-reservation

Indians. Congress has imposed express

geographic limitations, however, on other

programs funded in the same acts and on

previous BIA welfare appropriations. BIA

testimony to Congress on the Bureau's

-S-

service population has not been consistent;

and even if it had been, the legislative

history does not evidence Congressional

ratification of the BIA's position.

House and Senate committee reports do not

support an on-reservation — for BIA

general assistance. ab

66 BIAM 3.1.4(A) which limits BIA

general assistance to Indians on-reserva-

tion and in Alaska and Oklahoma is there-

fore void. It is not sanctioned by 25

U.S.C. §§2 and 9. Those laws do not

authorize the BIA to assume substantive

powers not granted by the Snyder and appro-

priation acts.

66 BIAM 3.1.4(A) is also unconstitu-

tional. It denies BIA general assistance

to off-reservation Indians, except in

Alaska and Oklahoma, even though the

constitutional basis for discrimination

in favor of Indians is that “the United

States overcame the Indians and took

possession of their lands, sometimes by

force, leaving them uneducated, helpless

and dependent people" (Board of County

Commissioners v. Seber, 318 U.S. 705).

66 BIAM 3.1.4(A) arbitrarily establishes

a conclusive presumption that all off-

" Ae arenas. Ae mere ta PR nr —

reservation Indians (outside Alaska and

Oklahoma) are not needy despite their

actual need. Section 3.1.4(A) may be con-

stitutional to the extent that it assumes

the state's on-reservation welfare burden,

but this case does not involve BIA as-

sistance which is in lieu of state gen-

eral assistance. If the Ruizes were to

prevail, the BIA would continue pro-

viding reservation Indians with an amount

of general assistance equal to what the

state would otherwise have to provide.

Only BIA general assistance appropriations

in excess of substitute-for-state payments

would be redistributed among on and off-

Yeservation Indians.

ARGUMENT

Bg

THE SNYDER ACT MAKES EVERY

INDIAN ELIGIBLE FOR BIA

PROGRAMS EXCEPT WHERE AN

APPROPRIATION ACT LIMITS

THE CLASS OF BENEFICIARIES

A general appropriation bill is out

of order in the House of Representatives

if it provides funds for anything not pre-

viously authorized except public works

and “objects already in progress." (Rule

XXI.2 of Rules of the House of Represen-

tatives in Deschler, Constitution,

ey

Jefferson's Manual and Rules of the House

of Representatives of the United States,

Ninety-Second Congress, H.Doc.No. 439,

9lst Cong., 2 Sess. (1971): (hereinafter

cited as Deschler).) This was also true

in 1921. (Deschler at 465.)

Prior to passage of the Snyder Act,

25 U.S.C. §13, in 1921, no authorization

law existed for most Bureau of Indian

Affairs programs. (S.Rpt.No. 294, 67th

Cong., lst Sess. (1921).) As a result,

unauthorized appropriations had to be

struck out if any Congressman raised a

point of order. (Remarks of Representa-

tive Kelly, 61 Cong. Rec. 4659-4660

(Aug. 4, 1921); Remarks of Representative

Carter, 61 Cong. Rec. 4671-4672 (Aug. 4,

1921) .) ,

The purpose of the Snyder Act was to

immunize Indian appropriation bills from

points of order based on lack of authori-

zation. (H.Rpt.No. 275, 67th Cong., lst

Sess. (1921); S.Rpt.No. 294, 67th Cong.,

lst Sess. (1921); Remarks of Representative

Kelly, 61 Cong. Rec. 4659 (Aug. 4, 1921).)

The law effectuates that purpose by ennu-

merating a long list of authorized pro-

grams” and requiring the Indian Bureau to

2. General assistance welfare is

clearly [footnote continued on next page]

Scaieneniiaaeimentinaaaianbaneamamtammenats Rn canna rg

“direct, supervise, and expend... [{appro-

priated funds)... for the benefit, care,

and assistance of the Indians throughout

the United States."

This does not require appropriations

for all the ennumerated programs nor for

all Indians. Congress is free to appro-

priate as much or as little as it sees fit

for any program; and Congress may, consis-

tent with its own rules, specify that no

part of a particular appropriation shall

go to recipients lacking certain qualifi-

cations (Deschler, supra, at 471; Rule XVI.2

of the Standing Rules of the Senate in

Senate Manual, S.Doc.No. 92-1, 92a Cong.,

within the authorizations for "general

support" and “relief of distress." The

Court need not decide whether the act

authorizes only those programs which the

BIA had in 1921. Supporters of the

legislation said it would authorize no

new Bureau activities. (Remarks of Repre-

senative Carter, 61 Cong. Rec. 4672 (Aug.

4, 1921); Remarks of Representative Snyder,

61 Cong. Rec. 4684 (Aug. 4, 1921); Remarks

of Senator Curtis, 61 Cong. Rec. 6529

(Oct. 21, 1921).) However, the Senate

report incorporates and adopts a letter

from the Acting Secretary of the Interior,

who wrote: "[T]he bill in question would

give Congress authority to appropriate for

the expenses of the Indian service for all

necess activities...." (S.Rpt.No. 294,

67th Cong., lst Sess. (1921) (emphasis

added) .)

aie

Bo ee ios oe ae re One RARE RO RRR AEN RANE NE

lst Sess. (1971)). The starting point,

though, is that all appropriations are for

the “assistance of the Indians throughout

the United States."

To have designated less than all

Indians as beneficiaries of all appropri-

ations would have allowed a point of order

to be raised whenever unincluded Indians

were added by an appropriation act. Thus,

as a matter of logic, the Snyder Act could

accomplish its purpose only be making all

Indians beneficiaries.

In any event, the language of 25

U.S.C. §13 is clear beyond question.

"[(T]hroughout the United States" means “in

or to every part of; everywhere in" the

United States. (Random House Dictionary of

the English Language 1480 (1967).) The

Office of the Interior Department Solicitor

wrote in 1971 that “Indians throughout the

United States" means “any and all Indians,

of whatever degree, whether or not members

of federally recognized tribes, and without

regard to residence so long as they are

within the United States." (Memorandum

from the Assistant Solicitor, Division of

Indian Affairs, Department of the Interior

to the Commissioner of Indian Affairs,

=10-

Dec. 9, 1971, reprinted in Sclar, Partici-

pation By Off-Reservation Indians In Pro-

grams Of The Bureau Of Indian Affairs And

The Indian Health Service, 33 Mont.L.Rev.

191 (1972) (hereinafter cited as Sclar).)

The statutes meaning is so plain that the

Court need look at no additional materials

to see if off-reservation Indians were

included in the phrase “the Indians through-

out the United States." (Ex Parte Collett,

337 U.S. 55, 61 (1949).)

The fact is, however, that off-reser-

vation Indians had been receiving BIA ser-

vices before the Snyder Act. (Commissioner

of Indian Affairs, Report For The Year

1866 at 94 (1866); Commissioner of Indian

Affairs, Report To The Secretary Of The

Interior, 1908, at 17 (1909); see also

Sclar, 33 Mont.L.Rev. 191, at 208, fn.

127.) The committee reports and debates

on the Snyder Act did not discuss which

Indians would be served under the new law,

and no indication exists that Congress

intended to cut off any then receiving

assistance. The sweep of the act's

language caused Congress no concern about

service to urban Indians, because the num-

ber of urban Indians was then insignifi-

=j}j-

cant.°

Petitioner argues that the Snyder

Act vests the Secretary of the Interior

with discretion to affix tribal and

geographic eligibility requirements on top

of those set by Congress in enacting appro-

priations. (Brief For The Secretary at 8.)

That contention is untenable.

Appropriations acts from the period

prior to 1921 bespeak Congressional deter-

minations of whether certain tribes or

classes of Indians or Indians generally

would be assisted by a particular appropri-

ation. The Interior Secretary may have

had substantial discretion over Indian

affairs, but Petitioner cites nothing

3. The total United States Indian

population in 1920 was 244,437. United

States Department of Commerce, Bureau of

the Census, Fourteenth Census of the United

States Taken in the Year 1920, Population,

Vol. II at 37 (1922).) The Indian popula-

tion in cities of 100,000 or more was 1,970

or .8 of one percent of the total Indian

population. (Id. at 47.) The Indian pop-

ulation in cities of 25,000 or more,

including those of 100,000 or more, was

4,086 or 1.7% of the Indian population.

(Id. at 75-76.) And using the census

definition of urban as towns of 2500 or

more (id at 20), the percentage of "urban"

Indians in 1920 was still only 6.2% (Id.

at 89.)

=-})2-

showing that the Secretary had any power

to modify the choices made by Congress.

The Snyder Act did not increase the

Secretary's power. The act's sole pur-

pose was to stop points of order to

unauthorized appropriations. (Remarks of

Representatives Andrews and Carter, 61 Cong.

Rec. 4672 (Aug. 4, 1921).) Congress had

no intention of surrendering control over

which groups of Indians would share in

appropriations; it was merely resolving

a jurisdictional fight between the House's

Indian Committee and that body's Appropria-

tions Committee. (Remarks of Representa-

tive Carter, 61 Cong. Rec. 4671-4672 (Aug.

4, 1921).)

Since passage of the Snyder Act Con-

gress has continued to indicate when an

appropriation is only for one tribe or the

Indians in certain areas. (See Part II,

infra.) Petitioner's reading of the Snyder

Act as vesting him with unbridled discre-

tion would create what this Court has

described as "a type of administrative

absolutism not congenial to our lawmaking

traditions." (Gutknecht v. United States,

396 U.S. 295, 306 (1970); see also Smith

v. Director of Internal Revenue, 332 F.2d

=] 3

BRE ee as eet ER DNR EY SECTS STO

671, 673 (9th Cir. 1964).) The correct

interpretation of the Snyder Act is that

Congress may, under its own rules, limit

the class of beneficiaries during the ap-

propriation process; but if Congress im-

poses no limit, the peneficiaries are “the

Indians throughout the United States."

It

NEITHER THE FISCAL 1968 INTERIOR

DEPARTMENT APPROPRIATION NOR

SUBSEQUENT APPROPRIATIONS LIMIT

BIA GENERAL ASSISTANCE TO ON-

RESERVATION INDIANS

A. The Lack Of A Geographic Limit

On Recent General Assistance Appro-

priations Contrasts Sharply With

Geographic Limits On Other Programs

In The Same Laws And On The General

Assistance Program In Prior BIA

Appropriations.

In fiscal year 1968, when this suit

arose, the appropriation covering BIA

general quahanense provided: “For expenses

necessary to provide education and welfare

services for Indians...including...grants

and other assistance to needy Indians...

$126,478,000." (81 Stat. 59, 60.) The

appropriations for subsequent years are

identical except for the dollar amounts.“

4. In fiscal 1974 the fiscal 1968

appropriation is significant only as it

illuminates the meaning of subsequent appro-

priations. [footnote continued next page]

-14-

~

(82 Stat. 425, 427; 83 Stat. 147, 148; 84

Stat. 669, 670; 85 Stat. 229, 230; 86 Stat.

508, 509.) ‘i

The acts contain only one limit on

which "Ihdians throughout the United

States" shall receive “assistance.” That

limit is "needy." The absence of any geo-

graphic limitation on assistance in those

laws is in clear contrast to other pro-

grams in the same laws and to assistance

provisions in prior BIA appropriations.

Each of the BIA general appropriation

acts for fiscal years 1968 through 1973

provide reward money for information or

evidence concerning violations of law

“on Indian reservations and lands." (81

Stat. 59, 60; 82 Stat. 425, 428; 83 Stat.

147, 148; 84 Stat. 669, 670; 85 Stat. 229,

230;.86 Stat. 508, 509.) Each of those

laws also appropriates funds for land

acquisition with the proviso that “no

part of the sum herein appropriated shall

be used for the acquisition of land within

the States of Arizona, California, Colo-

rado, New Mexico, South Dakota, and Utah

outside of the boundaries of existing

Indian reservations except lands authorized

This brief accordingly uses subsequent

acts and legislative history as aids in

the process of interpreting BIA appropri-

ation acts.

-]5-

by law to be acquired for the Navajo Indian

Irrigation Project." (81 Stat. 59, 61; 82

Stat. 425, 427; 83 Stat. 147, 149; 84 Stat.

669, 671; 85 Stat. 229, 231; 86 Stat. 508

510.) :

In 1940 an emergency appropriation to

' the BIA provided $1,700,000 for “relief and

rural rehabilitation for needy Indians."

(54 Stat. 611, 617 (emphasis added).) The

next year the House Appropriations Com-

mittee adopted the same approach for the

regular BIA appropriations bill. That bill

would have appropriated $1,000,000 “for

general support and rural rehabilitation of

needy Indians." (H.R. 4590, 77 Cong., lst

Sess., version of April 30, 1941 (emphasis

added).) Then the following discussion

took place before the Senate Appropriations

Committee:

PROGRAM OF INDIAN SERVICE

WITH RESPECT TO NEEDY INDIANS

7 + +

Senator McCarran...About 6 weeks

ago I had this matter up in connection

with the group of Indians at Yerington,

or close to that point. As I recall, I

was confronted with the reply that there

was no money to meet the situation.

REHABILITATION FUNDS NOT AVAILABLE

FOR RELIEF IN URBAN AREAS

Mr. Collier [Commissioner of

Indian Affairs). There is no author-

ization.

Senator McCarran. No authority?

Mr. Collier. No. This is the

fund that would be used, but it is

not applicable to urban groups, 80

that you would have to change the

language of this authorization in

order for us to reach then.

ADVISABILITY OF REHABILITATION WORK

AMONG INDIANS IN URBAN AREAS

Senator McCarran. Why should there

not be something of that kind done?

Mr. Collier. We think that it

should be.

2 7 ®

Senator McCarran. What is re-

quired; legislation?

Mr. Collier. It requires merely

the change of the language in this

particular appropriation.

Senator McCarran. Why don't we do

it? Why should it not be done; be-

cause, really, after all, Mr. Commis-

sioner, those are the Indians who

should have the help. They are off

-]7=

of the reservation and they are trying

to make a living....

* + +

Mr. Collier. This is the appropri-

ation which it would come out of.

This provides for “General Support and

rural rehabilitation of needy Indians."

This committee could drop the word

*rural."

® + *

Senator McCarran. If we dropped

"rural"?

Mr. Collier. That is all that you

- would have to do, drop the word "rural."

Senator McCarran. Well, when they

are living in little communities away

out in the wilds, you might say, that

is pretty nearly rural.

Senator Holman. Who interprets the

meaning of “rural"? I think that a

village is rural, is it not?

Mr. Collier. The Comptroller Gen-

eral interprets it and he always inter-

prets pretty tightly. This committee

has the remedy by dropping the word

"rural."

Senator Holman. Would that be

legislation? If it is not legislation,

and it is in order, I would move that

-18-

Senator McCarran be authorized to

present it on the floor.

LEGISLATIVE AUTHORITY FOR RELIEF

WORK AMONG INDIANS

Senator Hayden. I think it would

be well if you could place in the

record legislative authority for the

appropriation.

Mr. Greenwood [Finance Officer,

BIA). Legislative authority, Mr.

Chairman, is in the Snyder Act of

1921, authorizing appropriations

for the general support of Indians.

Senator Hayden. Then so far as

legislative authority is concerned,

we could appropriate anything for

any Indians anywhere?

Mr. Greenwood. Yes, sir.

Senator Hayden. The word “rural”

is limiting you here?

Mr. Greenwood. That is correct;

yes, sir.

. a o

Senator McCarran. Let me see if

I get it clearly, from what I under-

stand to be your idea, or at least

the Comprtroller General's idea,

"rural" means living out in the

country away from a settled community?

-19-

ee

Mr. Greenwood. Yes, sir.

Senator McCarran. You will not

find very many Indians following

that line. As.a rule they come into

little centers. They live around

the outskirts of little towns. Maybe

they work out in the hayfields, or

work out at one place or another, but

they always live close together in

some little town; that is, those not

on a reservation. It does not seem

to me that this money applies to

Indian relief at all.

Senator Thomas. That would not

apply in my State, Senator. We do

not have those communities. They

have their allotments along the

creeks some place, and they do not

live much around the towns.

Senator McCarran. We have a group

of Indians in my State that live that

way....Those who do not stay on the

reservations simply work for somebody

else, but live in close to little

towns.

So, it does not seem to me that

under that ruling the Indians would

ever get anything, and they are not

-20-

@

getting very much. Some of them

are living in hovels that are dan-

gerous to themselves and everybody

else. (Hearings on H.R. 4590 before

a subcommittee of the Senate Com-

mittee on Appropriations, 77th Cong.,

lst Sess., at 159-162 (1941).)

As a result, the Senate Appropriations

Committee voted the bill out with the

word “rural" recommended for deletion.

(S.Rpt.No. 366, 77th Cong., lst Sess. at

3 (1941); H.R. 4590, 77th Cong., lst Sess.,

version of June 2, 1941.) The senate

agreed to delete “rural" (87 Cong. Rec.

4671 (June 3, 1941)) and the law was

enacted without the "rural" restriction

(55 Stat. 303, 305).

Besides textual contrasts within and

between BIA appropriation laws, this Court

has another reason for declining to read

unexpressed geographic limitations into

BIA appropriations for general assistance.

House of Representatives’ practice requires

a limitation to show on the face of an appro-

priation act (Deschler, supra, at 476, 42);

and the presumption is that the Congress

-2l-

follows its own rules (United States v.

Vulte, 233 U.S. 509, 515 (1914)). More-

over, the Congressional practice makes

extremely good sense. A law represents

the will of the whole House and the whole

Senate. Those bodies cannot intend to

adopt secret limitations of which most

if not all Senators and Representatives

are unaware.

B. Congress Has Not Ratified The

BIA's General Assistance Policy By

Not Expressly Repudiating It.

Petitioner claims (at page 15 of his

brief) that two unpassed bills evidence

an unstated Congressional understanding

of geographic limits on BIA general assis-

tance appropriations. Those bills are

H.R. 9621, 87th Cong., 2d Sess. and H.R.

6279, 88th Cong., lst Sess. Those bills

would have declared that all Indians--

whether on or off reservation--in certain

states were eligible for BIA services.

The bills would also have reimbursed the

states for 80% of the state share of

catagorical aid to Indians under the

Social Security Act.

H.R. 9621 and H.R. 6279 were referred

to committee (see 108 Cong. Rec. 74 (Jan.

1l, 1962); 109 Cong. Rec. 8544 (May 14,

=22-

1963)), where they died. The record does

not show whether they failed to pass

because Congress disapproved of one or both

of the basic provisions or because Congress

considered such laws unnecessary for off-

reservation Indians to receive BIA ser-

vices. No significance whatsoever may

be attached to Congress' inaction on those

bills. (United States v. Wise, 370 U.S.

405, 411 (1962); Order of Railway Conduc-

tors v. Swan, 329 U.S. 520, 529 (1947).)

Petitioner also contends that Congress

has silently ratified a BIA policy of pro-

viding general assistance only to reser-

vation Indians. (Brief For the Secretary

at 13-15.) This supposed ratification is

based on three factors: (1) 66 BIAM

3.1.4(A), (2) testimony presented at

seven hearings between 1922 and 1960,

and (3) a sentence in the Bureau's annual

justification statement that BIA general

assistance is for “needy Indians on reser-

vations."

66 BIAM 3.1.4(A) instructs BIA

employees to provide general assistance

only to Indians on reservations and in

Alaska andOklahoma. Nothing cited by

Petitioner indicates that Congress ever

knew of 66 BIAM 3.1.4(A). O BIAM 1.2.A

=23-

requires the Bureau to publish in the

Federal Register “directives which relate

to the public, including...directives

[which] inform the public of privileges

and benefits available; eligibility quali-

fications, requirements, and procedures,"

but 66 BIAM 3.1.4(A) has never received

such publication. The failure to publish

66 BIAM 3.1.4(A) in the Federal Register

also violates 5 U.S.C. §552(a) (1) (D&E).

(Piercy v. Tarr, 343 F.Supp. 1120, 1128-

29 (N.D.Cal. 1972).) The sanction for

failing to publish the instruction is that:

“Except to the extent that a person

has actual and timely notice of the

terms thereof, a person may not in

any manner...be adversely affected

wo0(5 U.S.C. §552(a) (1).)>

Not a scintillaof evidence indicates that

the Ruizes had knowledge of 66 BIAM 3.1.4 (A)

at the time the fiscal 1968 appropriation

was being considered. And the vast majority

of off-reservation Indians have not known

about 66 BIAM 3.1.4(A) at any time.

5. The same rules applied under the

predecessors of 5 U.S.C. §552(a) (1). (See

60 Stat. 237, §3(a); 44 U.S.C. §1507.)

-24-

Imputing knowledge of that instruction to

Congress for the purpose of finding Con-

gressional ratification would therefore be

an adverse affect proscribed by 5 U.S.C.

§552. (Cf. Borak v. Biddle, 141 F.2d 278,

280 (D.C. Cir. 1944); Berends v. Butz, 357

F.Supp. 143 (Minn. 1973).)

The testimony relied on for ratifica-

tion (Brief For The Secretary at 14-15) is

inapposite. First, the testimony in

question was given between 1922 and 1960,

not during 1967 hearings on the fiscal

1968 appropriation. To impute testimony

from one year not only into the testimony

but also the legislation of another year

flies in the face of United States v.

Vulte, supra, 233 U.S. 509 at 514-515,

which holds that a limitation in one year's

appropriation act is presumed not to apply

to appropriations in subsequent years.

Secondly, in three of the seven cited

hearings the testimony does not show a

denial of BIA general assistance to off-

reservation Indians. Two instances, in

fact, show just the opposite.

One cited set of hearings is on the

fiscal 1942 appropriation bill. Those are

the same hearings which are quoted exten-

sively on pages 16 to 21 supra, and which

=-25-

show clearly that Congress expected off-

reservation Indians to receive BIA general

assistance. Petitioner points to a sub-

sequently filed BIA statement found on

pages 465-466 of those hearings. That

statement reads in part:

In the event the committee con-

siders it advisable to eliminate

the word "rural" from the language

of the item appropriating funds for

"General support and rural rehabili-

tation of needy Indians,“ the Indian

Service would be able to extend a

limited amount of assistance to groups

of Indians residing in urban com-

munities.

x x x

In view of the small amount available

and the fact that a far greater num-

ber of Indians reside in rural areas

than in urban communities, it is be-

lieved that in no event should more

than 10 percent, or $50,000 be ex-

pended for rehabilitating Indians who

are not using the land for their sup-

port.

The statement is fully consistent with

general assistance to off-reservation

Indians. Urban Indians would obviously

-26-

receive a small part of the money if a "far

greater number of Indians reside[d] in

rural areas." Moreover rural does not

mean reservation. (Remarks of Senator

Thomas, supra, at page 20.)

A second portion of testimony relied

on by Petitioner to find ratification of

a no off-reservation policy is pages 483

and 492 of Hearings on H.R. 3838 before

a subcommittee of the Senate Committee on

Appropriations, 8lst Cong., lst Sess.

(1949). On page 483 Senator Young says:

“When they [Indians] do leave [the reser-

vation] and then run short of funds and

find that they are not eligible for relief,

they quite naturally drift back to their

home reservation." The relief referred

to was not BIA general assistance but

state and local general relief from which

Indians were barred by residence require-

ments. That is made quite clear by the

following BIA statement appearing at page

592 of the hearings:

“This supplemental request is...in

order to permit adequate relief

payments to needy Indians on reser-

vations and temporary relief to those

off the reservation until they meet

local residence requirements...."

=-27=

(Emphasis added.)

The third instance of cited testi-

mony not supporting Petitioner's position

is “Hearings [on the Interior Department

Appropriation Bill, 1924], H.Committee on

Appropriations, 67th Cong., 4th Sess. pp.

184-185 (1922)." Nothing on the cited

pages deals with the subject of welfare

services to off-reservation Indians. The

BIA did testify on page 183 that “we ex-

pended a good part of that [BIA relief)

appropriation in relieving distress of

Indians on reservations." In 1922, how-

ever, a substantial majority of Indians

lived on reservations.

The third and last cog on Petitioner's

wheel of ratification is a sentence

reading: “General assistance will be

provided to needy Indians on reservations."

The sentence has appeared for a number of

years in the Bureau's appropriation justi-

fication statements® (Brief For The Secre-

6. More recently the justification

statement has also said: “The Federal Gov-

ernment has assumed responsibility for pro-

viding financial assistance and other social

services to needy residents of reservation

communities. (Hearings on Department of

nterior and Related Agencies Appropri-

ations For 1973 before a subcommittee of

the House Committee on Appropriations, 92

Cong., 2d Sess., Part 2 at 60 (1972);

Hearings [footnote continued on next page]

tary at 13-14), where it is buried amidst

scores of pages of tiny type.

Congressional ratification of that

sentence or 66 BIAM 3.1.4(a)? cannot be

inferred from Congress' failure to repu-

diate the sentence or from Congress'

appropriation to the Bureau of a lump sum

for general assistance and other BIA pro-

grams. What this Court said in Ex Parte

Endo, 323 U.S. 283 (1944), is applicable

here:

"It is argued, to be sure, that

there has been Congressional rati-

fication of the detention of loyal

evacuees under the leave regula-

tions of the Authority through

appropriation of sums for expenses

of the Authority. It is pointed

on Department of the Interior and Related

Agencies Appropriations For Fiscal Year

1973 before a subcommittee of the Senate

Committee on Appropriations, 92d Cong. 24

Sess., Part 1 at 151 (1972) (Emphasis

added) .)

7. Petitioner does not make clear

whether Congress is supposed to have

ratified the sentence, which restricts

general assistance to reservation Indians,

or 66 BIAM, which restricts general assis-

tance to Indians on reservations and in

Alaska and Oklahoma. And see footnote 6,

Supra.

-29-

sceaietntanereainetintneerinaa eeiae ee EERE

out that the regulations and pro-

cedures of the Authority were dis-

closed in reports to the Congress

and in Congressional hearings.

And it is shown that the leave

program of the authority was mentioned

both in the House and Senate Committee

hearings on the 1944 Appropriation

Act and on the floor of the House

prior to passage of the 1944 Act.

Congress may of course do by ratifica-

tion what it might have authorized.

And ratification may be effected

through appropriation acts. But the

appropriation must plainly show a

purpose to bestow the precise authority

which is claimed. We can hardly deduce

such a purpose here where a lump

appropriation was made for the overall

program of the Authority and no sums

were earmarked for the single phase

of the total program which is here

involved. Congress may support the

effort to take care of these evacuees

without ratifying every phase of the

program. (Id. at 303, fn. 24 (cita-

tions omitted) .)

See also, Greene v. McElroy, 360 U.S. 474, 56§

eoee—2g9R, fn. 30, particularly the last

-30-

sentence; D. C. Federation of Civic Asso-

ciations, Inc. v. Airis, 391 F.2d 478, 481l-

482 (D. C. Cir. 1948).)

C. The Legislative History Of Recent

BIA Appropriations Does Not Support A

Reservation Only Policy For BIA Gen-

eral Assistance.

Petitioner's selections from the legis-

lative history give an incomplete picture

of BIA testimony and totally omit the testi-

mony of other witnesses, floor debate, and

committee reports. Some of the relevant

omissions are as follows.

The Bureau of Indian Affairs has

testified at numerous appropriation

hearings that its service population in-

cludes all Indians living on or near reser-

vations.”

8. The cases cited by Petitioner (at

page 15 of his brief) in support of ratifi-

cation are clearly distinguishable. Both

involved authorization laws with an in-

definite lifetime not one year appropria-

tions. Moreover both involved the ratifi-

cation of properly adopted regulations.

9. Hearings on Department of the

Interior and Related Agencies Appropriations

For Fiscal Year 1965 before a subcommittee

of the Senate Committee on Appropriations,

88th Cong., 2d Sess, at 42 (1965); Hear-

ings on Department of the Interior and

Related Agencies Appropriations For Fiscal

Year [footnote continued on next page]

In 1971 Congressman Donald Fraser

submitted a long statement on urban

Indians at the House hearings. The

statement said in part:

"I've found that no congressional

mandate specifically ties the BIA

and the IHS to trust land and there

is virtually no legislative history

in this area. Assistant Secretary

Loesch finally admitted last year

that the hands off policy regarding

urban Indians was based on informal

1968 before a subcommittee of the Senate

Committee on Appropriations, 90th Cong.,

lst Sess., at 819 (1967); Hearings on

Department of the Interior and Related

Agencies Appropriations For 1969 before

a subcommittee of the House Committee

on Appropriations, 90th Cong., 2d Sess.,

Part 2 at 575 (1968); Hearings on Depart-

ment of the Interior and Related Agencies

Appropriations For Fiscal. Year 1969 before

a subcommittee of the Senate Committee on

priations, 90th Cong., 2d Sess., at

368 (1968); Hearings on Department of the

Interior and Related Agencies Appropria-

tions For Fiscal Year 1971 before a sub-

committee of the Senate Committee on

Appropriations, 9lst Cong., 2d Sess., at

1939 (1970); Hearings on Department of

the Interior and Related Agencies Appro-

priations For Fiscal Year 1972 before a

subcommittee of the Senate Committee on

Appropriations, 92d Cong., lst Sess., at

751-752 (1971).

-32-

understandings with the Congressional

appropriations committees.... I

have finally come_-to realize that

the Bureau's approach to urban

Indians is based on certain policy

assumptions that have not been ar-

ticulated." (Hearings on Department

of the Interior and Related Agencies

Appropriations for 1972 before a

subcommittee of the House Committee

on Appropriations, 92d Cong., lst

Sess., Part 6 at 101 (1971).)

In reply Congresswoman Julia Butler Hansen,

Chairwoman of the Interior appropriations

subcommittee said:

"I notice in your statement you say,

"Assistant Secretary Loesch finally

admitted last year the ‘hands off'

policy regarding urban Indians was

‘based on informal understandings with

the congressional appropriations

committees.' This is not true.

Assistant Secretary Loesch has

never reached any understanding in

that connection with this committee.

This was the first year that we dis-

cussed this problem in detail with

the BIA (Id. at 104.)

-33-

_AXongressman Fraser responded:

“My understanding is that there

is nothing in the existing statutory

language which would keep the BIA

or the IHS from being concerned

with the Indians who live off the

reservation...." (Id. at 105.)

Mrs. Hansen's rejoinder was

"Our appropriation bill has never

carried a limitation omfexpendi-

tures concerning ae (Id. at

107.)

(See also Testimony of Senator John Tunney,

Hearings on Department of the Interior and

Related Agencies Appropriations for Fiscal

Year 1973 before a subcommittee of the

Senate Committee on Appropriations, 92d

Cong., 24 Sess., at 3415-3417, 3422, 3423,

and 3429; Testimony of Grace Thorpe, id at

3774; Testimony of Lee Sklar [sic], id.at

3781-3782; Statement of Senator Alan

Cranston, id,at 4236-4237.)

On June 27, 1973, Chairwoman Hansen

addressed the House on behalf of the 1974

Interior Department Appropriation. She

said: “The boundaries of this committee's

responsibility. ..encompass...the welfare

and education of approximately 600,000

American Indians in and adjacent to the

=34-

reservation world....".

H5490.)

Finally, the appropriations committees'

reports do not support limiting BIA gen-

eral assistance to reservation Indians.

For fiscal years 1967 and 1968 the reports

were as silent as the statutes, ?° For

fiscal 1969, the House report (No. 1395,

90th Cong., 2d Sess. (1968)) suggested no

limitation. The Senate report described

the appropriation as being for "the 400,000

Indians under the jurisdiction of the Bureau

of Indian Affairs." (S.Rpt.No. 1275, 90th

Cong., 2d Sess. at 6 (1968).) Those 400,000

were the Indians and Alaska Natives whom

the BIA characterized as “on or near reser-

vations." (Hearings on Department of the

Interior and Related Agencies Appropria-

tions For Fiscal Year 1969 before a sub-

committee of the Senate Committee on

Appropriations, 90th Cong., 2d Sess., at

368 (1968).) The conference report did

not resolve the disparity between the

10. H.Rpt.No. 1405, 89th Cong., 2d

Sess. (1966); S.Rpt.No. 1154, 89th Cong.,

2d Sess. (1966); H.Rpt.No. 1538, 89th Cong.,

2d Sess. (1966); H.Rpt.No. 206, 90th Cong.,

lst Sess. (1967); S.Rpt.No. 233, 90th Cong.,

lst Sess. (1967); H.Rpt.No. 343, 90th

Cong., Ist Sess. (1967).

(119 Cong. Rec.

-35-

House and Senate reports. (H.Rpt.No.

1664, 90th Cong., 2d Sess. (1968) .)

The committee reports recommended no

limitation on BIA welfare for fiscal

years 1970 and 1971.44 im 1971 the House

report for fiscal 1972 said: "While the

Bureau's primary responsibility is to

assist Indians living on reservations,

the Bureau can and should do more to

assist Indians to adjust to gity living."

(H.Rpt.No. 92-308, 92d Cong., lst Sess,

at 9.) The Senate report for the same

year stated that the recommended appro-

priation was for “the 477,500 Indians

under the jurisdiction of the Bureau of

Indian Affairs living on or near

reservations." (S.Rpt.No. 92-263, 92d

Cong., lst Sess., at 5 (1971).) The

conference report attempted no reconcili-

ation on this point. (H.Rpt.No. 92-386,

92d Cong., lst Sess. (1971).)

The 1972 House report appeared to

sanction for fiscal 1973 the Bureau

policy of denying general assistance to

ll. H.Rpt.No. 361, 9lst Cong., lst

Sess. (1969); S.Rpt.No. 420, 9lst Cong.,

lst Sess. (1969); H.Rpt.No. 570, 9lst

Cong., lst Sess. (1969); H.Rpt.No. 9l-

1095; 9lst Cong., 2d Sess. (1970); S.Rpt.

No. 91-985, 9lst Cong., 2d Sess. (1970);

(1970).

-36-

urban Indians.’? (H.Rpt. 92-1119, 924

Cong., 2d Sess., at 6-7.) The Senate

Report for fiscal 1973 held to its 1972

view that the BIA appropriation is for

Indians “on or near reservations."

(S.Rpt.No. 92-921, 92d Cong., 2d Sess.

at 6 (1972).) The Senate report also

directed the Secretary of the Interior to

“prepare a plan to assure Bureau of Indian

Affairs type services to all Indians in

the United States--rather than just those

living 'on or near reservations.'" (Ibid.)

The House and Senate reports were probably

expressing the same intent in different

language. The conference report is

12. The term urban as used by the

committee means metropolitan centers rather

than urban in the Census Bureau sense.

House Committee Chairwoman Hansen considers

600,000 Indians to be non-urban. (See 119

Cong. Rec. H5490 (June 23, 1973).) The

Census considers only 467,753 to be rural.

(See Sclar, supra, 33 Mont.L.Rev. at 194,

fn. 7 and 195, fn. 9; see also Hearings on

Department of the Interior and Related

Agencies Appropriations for Fiscal Year

1972 before a subcommittee of the Senate

Committee on Appropriations, 92d Cong.,

lst Sess., at 756 (1971); Testimony of

James Hawkins, Director of Education Pro-

grams BIA, in Hearings on Department of the

Interior and Related Agencies Appropria-

tions For 1973 before a subcommittee of

the House Committee on Appropriations, 92d

Cong., 2d Sess., Part 2 at 75 (1972).)

=37~

silent. (H.Rpt.No. 92-1250, 92d Cong.,

2a Sess. (1972).)

For fiscal 1974 the House report

returns to its fiscal 1967-1968 approach.

It says nothing about which needy Indians

shall receive BIA welfare. (H.Rpt.No. 93-

322, 93d Cong., lst Sess. (1973).)?9

Any assessment of the committee re-

ports--and the debates and testimony-~-should

bear in mind that the Interior Department

appropriations acts are not ambiguous.

Those laws contain geographic limits on

some BIA programs but not on general assis-

tance. The reports should therefore be

irrelevant. (Ex Parte Collett, supra,

337 U.S. 55 at 61.) But if the reports

are considered, each should be applied only

to the appropriation it recommends; and not

one report limits BIA general assistance to

reservation Indians. !4

13. The Senate had not acted on the

fiscal 1974 BIA appropriation at the time

this brief was written.

14. If the Court for some reason con-

siders the appropriations statutes ambi-

guous, it should then apply the rule that

laws affecting Indians will be construed in

the way most favorable to the Indians.

( ire v. Ca , 351 U.S. 1, 6-7 (1956);

aisske Pacific Fisheries v. United States,

346 0.5. 76, 89 (1916); Choate v. Trapp,

224 U.S. 665, 675 (1912) .)

=38-

IIt

66 BIAM 3.1.4(A) IS INCONSISTENT

WITH THE SNYDER ACT, UNAUTHORIZED

BY APPROPRIATION STATUTES, AND

THEREFORE VOID

The Snyder Act, by its terms, makes

geography irrelevant to BIA general assis-

tance except when an appropriation act

imposes a residency restriction. (Part I,

Supra.) No recent general assistance

appropriation contains any geographic

limit; and even those committee reports

which specify beneficiaries include

Indians near to as well as on reservations,

(Part II, Supra.) Neither the Snyder and

appropriation acts nor their legislative

histories evince any Congressional intent

to vest the BIA with discretion to impose

geographic limitations.

66 BIAM 3.1.4(A), which limits BIA

general assistance to Indians on reser-

vations and in Alaska and Oklahoma, is

out of harmony with that statutory scheme

and therefore void. (Manhattan General

Equipment Company v. Commissioner of

Internal Revenue, 297 U.S. 129, 134 (1936);

see also NLRB v. Brown, 380 U.S. 278, 291-

292 (1965); Social Security Board v.

Nierotko, 327 U.S. 358, 369 (1946) .)

=39-

—

66 BIAM 3.1.4(A) is not sanctioned

by 25 U.S.C. §§2 and 9. Sections 2 and

9 do not authorize the BIA to assume

substantive powers not granted by the

Snyder and appropriation acts. (Organ-

ized Village of Kake v. Egan, 369 U.S.

60, 63 (1962); Leecy v. United States,

190 Fed. 289, 292-293 (8th Cir. 1911).)

Petitioner contends that he must

adopt eligibility rules for BIA general

assistance. (Brief For The Secretary at

16.) Certainly that is true. The appro-

priation laws say that only “needy Indians"

may share, and the Secretary thus has

implied power to define need. The power

to impose geographic criteria is withheld

however. (Cf. Townsend v. Swank, 404 U.S.

282, 286 (1971) .)

Petitioner further contends that he

would have to “substantially diminish"

general assistance to Indians on reser-

vations if he must provide general assis-

tance to off-reservation Indians. (Brief

For The Secretary at 18.) That does not

follow. The Ruizes do not challenge 66

BIAM 3.1.4(A) because it causes reserva-

tion Indians to receive BIA general

assistance in amounts equal to what off-

reservation Indians receive from state

-40-

programs. What respondents object to is

that on-reservation Indians receive addi-

tional benefits which off-reservation

Indians do not receive from the state.

General assistance benefits to on-reser-

vation Indians would not have to be

"substantially diminish[ed]" if BIA max-

imum grant rules were to provide that

on-reservation Indians would receive no

more than the combined payments to off-

reservation Indians by the BIA and state

governments. +5

66 BIAM 3.1.4(A) is not entitled to

deference as a consistent and longstanding

administrative interpretation of BIA

powers. As an interpretation of appro-

priation acts covering BIA general assis-

tance, it is inconsistent ‘with BIA regu-

lations for other programs made pursuant

to the same lump sum appropriation.

(25 C.FP.R. §§31.1, 32.1.) Section 3.1.4

(A)'s inclusion of off-reservation

15. Petitioner also makes the re-

lated argument that "Congress had no

intention of substantially increasing

the scope of existing and proposed ser-

vice" when it failed to appropriate all

that the BIA requested for fiscal 1968.

That contention erroneously assumes,

among other things, that Congress appro-

priated general assistance funds in

fiscal 1967 only for reservation Indians.

=4)-

Indians in Alaska and Oklahoma is incon-

sistent with BIA statements to Congress

that only reservation Indians receive

general assistance; and 3.1.4(A)'s

denial of general assistance to any off-

reservation Indians except in Alaska and

Oklahoma is inconsistent with BIA testi-

mony that the Bureau serves Indians on

or near reservations. BIA treatment of

off-reservation Navajos in the Navajo

area as on-reservation (Hearings on

Department of the Interior and Related

Agencies Appropriations For Fiscal Year

1972 before a subcommittee of the Senate

Committee on Appropriations. 92d Cong.,

lst Sess. at 753 (especially the table

of Estimated Indian Population) (1971))

is not consistent with 66 BIAM 3.1.4(A).

The BIA has even carried out a program of

down payments on urban Indian houses as

part of the welfare program authorized by

the Snyder Act. (See Sclar, supra, 33

Mont.L.Rev. 191 at 216.) Such an erratic

performance is entitled to no deference,

particularly as it is inconsistent with

the intent of Congress. (Federal Maritime

Commission v. Seatrain Lines, , U.S.

e —_» 36 L.Ed. 24 620, 634 (1973) .)

-42-

Any doubts as to the validity of 66

BIAM 3.1.4(A) should be resolved against

validity because of the section's doubtful

constitutionality. (See Part Iv, infra;

Townsend v. Swank Supra, 404 U.S. 282 at

Iv

66 BIAM 3.1.4(A) ARBITRARILY

EXCLUDES OFF-RESERVATION INDIANS

In Board of Count Commissioners v.

Seber, 318 U.S. 705 (1943), this Court

held constitutional a federal law which

exempted from state taxation certain off-

reservation, non-trust, individually

Owned, Indian land. The source for that

unique power to discriminate in favor

of Indians was that "the United States

overcame the Indians and took possession

of their lands, sometimes by force,

leaving them an uneducated, helpless and

dependent people." (Id. at 715.)

Off-reservation Indians epitomize

that plight. Whether rural or urban, a

great many are poor; 1& and they are land-

16. Johnson, American Indians In

Rural Poverty in Toward Economic Develop-

ment For Native American Communities, A

Compendium of Papers Submitted to the Sub-

committee [footnote continued on next page]

-43-

\

less because of federal action.?”

Some off-reservation Indians, as in

California, never received reservations.

(Sclar, supra, 33 Mont.L.Rev. at 221-222.)

Nevada Indians have outgrown some tiny

reservations established for them.

(Remarks of Senator Bible, 117 Cong.Rec.

$2409 (Mar. 4, 1971).) Substantial numbers

of Indians have been displaced by the con-

demnation or involuntary sale of valuable

reservation land. (Cahn, Our Brother's

Keeper: The Indian In White America 69-73

(1969).): Many Indians are landless because

on In Government of the Joint

Economic Committee, Congress of the United

States, 9lst Cong., lst Sess. (Comm.Print

1969) at Vol. I, p.19, 31-35; United States

Department of Agriculture, Economic Re-

search Service, Rural Indian Americans In

Poverty (Agricultural Economic Report No.

167) at 11 (1969); President Nixon's

Message To Congress On Indian Affairs of

July 8, 1970, Weekly Compilation of

Presidential Documents 894 ("Three-fourths

{of urban Indians) are living in poverty");

Testimony of Charles N. Zellers, Assistant

Commissioner of Education, BIA, in Hearings

on Department of the Interior and Related -

Agencies Appropriations For 1970\before a

subcommittee of the House Committee on

riations, 9lst Cong., lst Sess., Pt.

2 at 93 (1969).

17. Reservation Indians too are vic-

tims of the Government's land policy,

because the reservation lands left to them,

with a few exceptions, are inadequate to

their needs.

of the Government's now discredited allot-

ment program. (Id. at 73-75; Sclar, supra,

33 Mont.L.Rev. at 222.) The BIA considers

other thousands of Indians off-reservation

because, through accidents in the histori-

cal maturation of the United States, their

reservations developed special’ relation-

ships with state governments. (See e.g.,

United States Department of the Interior,

Federal Indian Law 965-979 (1958).) And

y>finally, the BIA has encouraged, if it

has not actually coerced, several hundred

thousand Indians to move to urban areas. ?®

That relocation was initiated because Con-

gress believed both that more Indians were

18. Testimony of Milford M. Sanderson,

President, American Indian Forum, Hearings

on Department of the Interior and Related

Agencies Appropriations For 1973 before a

subcommittee of the House Committee on

Appropriations, 92d Cong., 2d Sess., Pt,

5 at 488; Testimony of Congressman Donald

Fraser, Hearings on Department of the

‘Interior and Related Agencies Appropria-

tions For 1972 before a subcommittee of

the House Committee on Appropriations,

92d Cong., lst Sess., pt. 6 at 100, 101,

104; Testimony of Senator Fred Harris,

Hearings on Department of the Interior and

Senate Committee on ropriations, 92d

Cong., lst Sess., at 3074.

-45-

living on reservations than the land could

support and that relocation to cities was

the only practical solution for that situ-

ation. (S8.Rpt.No. 2664, 84th Cong., 2d

Sess. 2-3 (1956).)

Despite the Government displacement

and the poverty it has engendered and des-

pite those two factors being the constitu-

tional basis for special benefits to Indians,

66 BIAM 3.1.4(A) totally excludes off-

reservation Indians from BIA general assis-

tance except in Alaska and Oklahoma.

Petitioner defends that rule as being

reasonably related to factors which contri-

bute to need. (Brief For The Secretary at

20-21.) 79 The record in this case, however,

contains no evidence showing that off-

reservation Indians have an economic advan-

tage over on-reservation Indians. Not

even the non-evidentiary authorities

cited by Petitioner (at page 21, fn. 14 of

his brief) attempt a comparison between

the resources and employment opportunities

of on and off-reservation residents.

19. The listed factors are remote

places with inadequate resources, a lack

of job opportunities, and chronic unemploy-

ment.

What 66 BIAM 3.1.4(A) really estab-

lishes is a conclusive presumption that

all off-reservation Indians (outside

Alaska and Oklahoma) have incomes and

assets above the standards of need for

BIA general assistance. The Ruiz’ actual

need (Statement Of The Case, supra, at 4)

and the stated statutory purpose "to pro-

vide...assistance to needy Indians" are

rendered irrelevant. 66 BIAM 3.1.4 (A)

operates just as arbitrarily as the

total exclusion of tax dependents from

food stamps which this Court declared

in violation of the Fifth Amendment in

UnitedgStates Department of Agriculture

ie. <> a / Se | a a oo

Week 5099 (1973).

Equally invalid are the other

rationales which petitioner advances in

support of constitutionality for 66 BIAM

3.1.4(A).

"Off-reservation Indians have equal

access (with non-Indians] to ordinary

state and federal benefits" (Brief For

The Secretary at 21), but on-reservation

Indians are equally entitled to social

security and state welfare (Acosta v.

San Diego County, 272 P.2d 92 (Cal.App.

1954); State Board of Public Welfare v.

SL Ssststnnessnesns=emene

-47-

Board of Commissioners of Twain County, .

137 S.E. 2d 801 (N.C. 1964); United States

Department of the Interior, Federal Indian

Law 540, fn.6 (1958); cf. Begay v. Saw-

telle, 88 P.2d 999 (Ariz. 1939)). Peti-

tioner himself recognizes the equal wel-

fare rights of on-reservation Indians at

pages 7 and 8 of his brief. That the

United States may constitutionally assume

states’ on-reservation welfare responsi-

bilities in recognition of the tax-exempt

status of recipients’ land and income is

not disputea, 2° but this case does not

involve that issue. The states would bear

no extra burden if the Ruizes were to

obtain BIA benefits which Arizona does

not provide to off-reservation residents.

The BIA would continue providing reser-

vation Indians with an amount of general

assistance equal to what the states would

otherwise have to provide. Only the BIA

general assistance appropriations in

excess of the substitute-for-state pay-

ments would be redistributed among on and

off-reservation Indians.

20. The United States has no obliga-

tion to assume the burden of state programs.

(Board of Count a ee ve Seber,

supra,

ego County, supra, 272 P. ‘opT ator

-48-

“Indians going beyond reservation

boundaries have generally been held sub-

ject to non-discriminatory state law."

(Brief For The Secretary at 20 quoting

Mescalero Apache Tribe v. Jones —__._ ‘U.S.

’ , 36 L.Ed. 24 114, 119 (1973)

"{A]nd [on a reservation) the authority

of the state is less." (Brief For The

Secretary at 20.) The states' general

authority on and off-reservation has

nothing to do with welfare, though, as

explained in the preceding paragraph.

Making BIA general assistance avail-

able to off-reservation Indians would,

according to Petitioner, “provide bene-

fits to fully assimilated Indians not

based on any special relationship with

the government and denied to the citizenry

at large." (Brief For The Secretary at

18.) Once again, the record contains

nothing to show that off-reservation

Indians are "fully assimilated." To the

contrary, the record shows that the Ruizes

and other off-reservation Papagos are not

assimilated. (Statement Of The Case, supra;

A.84-87; and see Sclar, Supra, 33 Mont.L.

Rev. 220 at footnotes 217-219 and the

material cited therein.) The special

-49-

relationship which justifies providing

special benefits to off as well as on-

reservation Indians and not to non-

Indians is that set out in Seber, supra:

"(T]he United States overcame the Indians

and took possession of their lands, some-

times by force, leaving them an uneduca-

ted, helpless and dependent people. "2+

Petitioner suggests that he has.a

special trust responsibility to provide

welfare for reservation Indians. (Brief

For The Secretary at 20.) In fact, the

United States has a duty to care for all

Indians. (Goodrich, The Legal Status of

The California Indian, 14 Calif.L.Rev.

157, 163 (1926); see also the authorities

cited in Sclar, supra, 33 Mont.L.Rev. at

203, fn. 96.)

Another insubstantial argument by

petitioner is his statement that: “Indians

who live on reservations have submitted

themselves to a different governmental

structure...where the authority of the

Secretary of the Interior is greater.”

(Brief For The Secretary at 20.) Criminal

21. 25 U.S.C. §13 is, of course, an

exception to 42 U.S.C. §2000d.

-50-

and civil jurisdiction are unrelated to the

need for welfare; the Secretary's control

over tribal trust property is the same

whether a tribal member lives on or off-

reservation; and the Secretary's control

of individual trust property is similarly

independent of residence.

Petitioner's final defense to the

unconstitutionality of 66 BIAM 3.1.4(A)

is that making BIA general assistance avail-

able to all Indians would “substantially

diminish" the benefits available to reser-

vation Indians who “depend more on the

tribal government and the federal govern-

ment." (Brief For The Secretary at 18,

20.) No such substantial diminution is

likely. As explained at pages 40-41,

the Ruizes and the class of off-reservation

Indians they represent are seeking only

the difference between what they receive

from the state and what reservation

Indians receive from the BIA. No reser-

vation Indian would receive less than the

state provides to off-reservation Indians.

Beyond that, the cost in dollars to the

federal government or in benefits to

reservation Indians cannot justify the

otherwise invidious exclusion of off-

reservation Indians from the BIA general

-5l-

assistance program. (Graham v. Richardson,

403 U.S. 365, 374-375 (1971); Shapiro vy.

Thompson, 394 U.S. 618, 633 (1969).)

Viewed as a classification rather than

as an irrebuttable presumption, 66 BIAM

3.1.4(A) is no more reasonable. No evidence

in this case indicates reservation residence

causes Indians to be poorer. No Indians

could be more “helpless and dependent”

because the United States “took possession

of their lands" (Seber, supra) than those

Indians whose land was actually taken or

those who were forced to move off reserva-

tions after the Government left too little

decent land to support all the members of

their tribes.

Particularly inexplicable is why off-

reservation Indians in Alaska and Okla-

homa are in the same class with reserva-

tion Indians while all other off-reservation

Indians are in another class. Petitioner's

principal justification seems to be that

Alaska and Oklahoma have historically

received special treatment. (Brief For

The Secretary at 21.) The BIA general

assistance program did not include off-

reservation Alaska Natives and Oklahoma

Indians until 1959, however.?? and a

22. The 1952 [footnote continued

on next page]

=-§2-

history of discriminating against off-

reservation Indians in most states is no

justification for continuing that dis-

crimination. (Brown v. Board of Educa-

ee eEEenEecees

tion, 347 U.S. 483 (1954) .)

Petitioner says that Alaska and Okla-

homa have many Native Americans and few

reservations, but he does not explain how

those factors relate to need. California

and North Carolina also have substantial

Indian populations and little reservation

land. Oklahoma Indian populations may be

"concentrated" on tax-exempt trust land,

as petitioner claims (Brief For The

Secretary at 21); but, as explained on

page 48, supra, a judgment for the Ruizes

will impose no new burden on state welfare

programs. The “substantial separate legis=-

lation" covering Alaska and Oklahoma, like

the Interior Secretary's greater authority

on than off reservation (see pages 50-51

version of 66 BIAM 3.1.4(A) read: "Assis-

tance under the Bureau's program shall be

limited to otherwise eligible Indians

residing on reservations." (Indian

Affairs Manual, Vol. VI, Part VI, Ch. 3,

Section 301.03.) The 1952 provision

was changed in 1959 to read: "Assistance

under the Bureau's program is limited to

otherwise eligible Indians residing on

reservations and in jurisdictions under

the Bureau of Indian Affairs in Alaska

and Oklahoma. (66 IAM 341.3.)

supra), does not make off-reservation

Alaska Natives and Oklahoma Indians needier

than their counterparts in other states.

"'tTraditional' equal protection

analysis does not require that

every classification be drawn

with precise ‘mathematical nicety.'

Dandridge v. Williams, supra, at

485. But the classification here

in issue is not only ‘imprecise';

it is wholly without any rational

basis." United States Department

of Agriculture v. Moreno, U.S.

’ , 41 U.S. Law Week 5105,

5110 (1973).)

Moreover, 66 BIAM 3.1.4(A) should be

judged not just by traditional equal pro-

tection analysis, but by a stricter

standard. Whether Indians live on or

off reservations has essentially been

determined by the federal government.

That is obvious where, as in California,

a tribe or band never received any land.

But it is no less true where, as in the

Ruiz' case, the land left to the

Indians was so meager or so unproductive

that it could not support all its resi-

dents and some had to move off if either

-54-

those remaining or those departing were to

have any chance for self-sufficiency.

For the federal government to then

place Indians in a disadvantaged class for

being off-reservation is “contrary to the

basic concept of our system that legal

burdens should bear some relationship to

individual responsibility." (New Jersey

Welfare Rights Organization v. Cahill,

U.S. ’ » 36 L.Ed.2d 543, 545

(1973), quoting Weber v. Aetna Casualty

& Ins. Co., 406 U.S. 164, 175, (1972);

Frontiero v. Richardson, aiiug ee

—__- 36 L.Ed. 2d 583, 591 (1973). ) There-

fore, the classification is "inherently

Suspect, and must...be subjected to strict

judicial scrutiny." (Frontiero v. Richard-

son, supra, __—iU:«.S. at - ;

36 L.Ed. 2d 583 at 589-592.) Given that

scrutiny, 66 BIAM 3.1.4(A) is plainly

unconstitutional.

CONCLUSION

For the foregoing reasons the Court

of Appeals' decision should be affirmed.

Dated: Aug. 3, 1973

Respectfully submitted,

Lee J. Sclar

Bruce R. Greene

Herbert A. Becker

-§5<

ria

CALIFORNIA INDIAN LEGAL SERVICES

By:

Lee J. Scilar

-56-

co

[" | AUG 27 1973

RODAK, JRC

\ IN THE MICHAEL Rot

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 72-1052

ROGERS C. B. MORTON,

SECRETARY OF THE INTERIOR,

Petitioner

RAMON RUIZ AND ANITA RUIZ

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

WINTON D. WOODS, JR.

University of Arizona

College of Law

Tucson, Arizona 85721

LINDSAY E. BREW

P.O. Box 246

Sells, Arizona 85634

Counsel for Respondents

2 an

Weshington, D.C. © CLS PUBLISHERS, INC. e (202) 393-0625

=a

(i)

TABLE OF CONTENTS

Page

Ree WED 6 6 64k s Sindee RO dk's cea cn 1

PE + cane teldnckaabeviwaasansdiwhsss cas 1

Snes Ge MINS i Ni WA edt Waeds ts eacecee 3

ARGUMENT:

I. The Snyder Act Constitutes the Fundamental

Congressional Mandate to the Secretary of the

Interior in Regard to Indian Affairs and the

Secretary Has No Authority To Violate That

Mandate Unless Congress Has Modified It by

OU AS 6k ho i i ees es 3

Il. The Legislative History of the 1968 Appro-

priations Act Shows That Congress Did Not

Intend To Modify the Basic Snyder Act

Responsibilities of the Secretary of the Interior......... 4

III. The Regulation as Applied to Respondents Is in

Conflict With Equal Protection of Laws

Standards Incorporated Into the Fifth

Amendment and Penalizes Respondents for

Exercising Their Fundamental Right To Travel

Without Necessary Justification. ................ 16

Rp 5 Sb hcg os ek ee 23

GE, A oe Ck EAS soon ces on oe 26

Cases:

Acosta v. San Diego County, 126 Cal.App.2d 455,

ee ee ea eee 17

Arizona v. Hobby, 221 F.2d 498 (1954) ............. 17, 20

I ST, FO okie ie i oS cece ccbsncc 21

(ii)

Dandridge v. Williams, 397 US.474 ......-------++5- 20

Dunn v. Blumstein, 405 U.S.330 ..........---++-- 22, 25

J

Harman v. Forssenius, 380 U.S.528 ........ sh veee een 21

Jefferson v. Hackney, 406 U.S.535 ........-----++-+- 20

Oyama v. California, 332 U.S. 633 .......-----+++++- 21

Richardson v. Belcher, 404 US.78 ........--+-+-005- 20

Shapiro v. Thompson, 394 U.S.618 .........---- 21, 22, 25

Squire v. Capoeman, 351 US.1 ......----- eee seers 16

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.

Pr ee rer rs eT ee eee eee 4

Constitution and Statutes:

United States Constitution, Fifth Amendment .........-- 16

Snyder Act, 42 Stat. 208,25 US.C.13 ......------ 3,4, 15

Department of Interior and Related Agencies Appro-

priation Act, 1968, Public Law 90-28, 81 Stat.59 ....... 4

PG BOI one anes ance tin se cescesce teen sean 5

PE Be We bv ec wae Ws cWc ewe d wee e ste se eed es 5

E2ZUBC SISSALD) on were reece ccc wcncesess 17

Congressional material:

Senate:

Senate Committee on Indian Affairs, Subcommittee

on Survey of Conditions of Indians of the United

States, 71st Congress, 3rd Session, 1931, Arizona

De TT, WOR IGs ows oe ne ewe iicctwacceees 6

Hearings, Senate Committee on Appropriations, Sub-

committee on Department of the Interior and

Related Agencies, on HR 4590 (Fiscal 1942) 77th

Congress, Ist Session, 1941, pp 160-162,465,6 ....... 5,6

amepeeneieinns soci

(iii)

Hearings, Senate Committee on Appropriations, Sub-

committee on Department of Interior and Related

Agencies, HR 3123 (Fiscal 1948) 80th Congress,

Ist Session 1947, pp 598-599... 2.1... eee ee eee 336

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies, on HR 3790 (Fiscal 1952) 82nd ;

Congress, Ist Session 1951, pp 372-3 ............---- 6

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies, on HR 10746 (Fiscal 1959)

85th Congress, 2nd Session 1958, p.293 .......... 14, 24

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies, on HR 5915 (Fiscal 1960) 86th

Congress, Ist Session 1959, pp 337-340 ............. 24

Hearings, Senate Committee on Appropriations, —

Subcommittee on Department of the Interior and

‘Related Agencies, on HR 6345 (Fiscal 1962) 87th _

Congress, lot QGuaden 2961.6. 107 a5 ck Se 8

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies, on HR 10433 (Fiscal 1965)

88th Congress, 2nd Session 1964, pp 227-8 .......... 10

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies on HR 14215 (Fiscal 1967) 89th

Congress, 2nd Session 1966, pp 298, 300-302 ......... 14

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies, on HR 9029 (Fiscal 1968) 90th

oe er rr ae 11

Hearings, Senate Committee on Appropriations,

Subcommittee ori Department of the Interior and

Related Agencies, on HR 17354 (Fiscal 1969)

90th Congress, 2nd Session 1968, p.368 ............ ll

(iv)

Hearings, Senate Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies, HR 9417, (Fiscal 1972) 92nd

Congress, Ist Session, 1971, pp 751,753 .....----- 12, 13

House:

Hearings, House Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies (Fiscal 1961) 86th Congress, 2nd

Session 1960, pp 508-10 ........------- eee eeee 7,14

Hearings, House Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies (Fiscal 1962) 87th Congress, Ist

Session 1961, p.98 ....-.---- ee eee ere cece eeeee 8

Hearings, House Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies (Fiscal 1963) 87th Congress, 2nd

Session 1962, pp 3524 ......-----e eee cece eee tee 9

Hearings, House Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies (Fiscal 1964) 88th Congress, Ist

Session 1963, pp 888-89 ........---e eee ee eeeeee 9

Hearings, House Committee on Appropriations,

Subcommittee on Department of the Interior and

Related Agencies (Fiscal 1972) 92nd Congress, Ist

Session 1971, part 6,p.104 .......-----+-eee- a a

Miscellaneous:

yuo fly 2 Soe eee a See ees s eee 5

Ped) ey Pee Me er ree ee eee 2 22

0 Indian Affairs Manual (BIAM) 1.2........----+--+-+- 15

66 Indian Affairs Manual (BIAM) 3.1.4a ........------ 3, 15

66 Indian Affairs Manual (BIAM) 3.1.4b ......-------- 7,17

(v)

Bennett, Problem and Prospects. in Developing

Indian Communities, 10 Ariz. L. Rev. 649 (1968) ....... 2

Taylor, The States and Their Indian Citizens, United

States Department of the Interior, Bureau of

Re FR Ce PE nk ow hee cc ccces 16, 20

U.S. Commission on Civil Rights, The Southwest

a Be eee ere 2

Proposed Federal Rules of Evidence ..................- 3a

Papago Tribe of Arizona v. United States of America,

eg ere ere

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 72-1052

ROGERS C. B. MORTON,

SECRETARY OF THE INTERIOR,

Petitioner

v.

RAMON RUIZ AND ANITA RUIZ

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

QUESTION PRESENTED

Whether .an unassimilated Papago Indian residing near

the Papago Indian Reservation and within his tribe’s

aboriginal land may be automatically excluded from ,

participation in the General Assistance Program of the

Bureau of Indian Affairs on the sole ground that he does

not reside within the legal boundary of the reservation.

STATEMENT

While the respondents do not argue with the bare facts

contained in the Secretary’s Statement they would focus

the attention of the Court upon certain background data

which give meaning and perspective to those facts.

As reference to Appendix A, infra, will reveal respon-

dents have remained in the central portion of the land to

2

which their tribe held aboriginal title which is called

“Papagueria” or Land of the Papagos. They reside in a

community known as “Indian Village” within the town

of Ajo, Arizona. Indian Village (not the town of Ajo, as

the Secretary states, Opening Brief 4-5) is populated

almost entirely by Papago Indians. See: Fact 5, App. 45.

The off reservation Papagos, including respondents, have

not been assimilated into the dominent culture and they

have retained their language and tribal identity. See:

Exhibit A to Plaintiff's Cross-Motion for Summary

Judgment (hereinafter refered to as the “Stucki Affida-

vit”) at App. 84-88.

Economic conditions on the Papago Reservation are

among the worst in the United States:

The Papagos, whose arid and lonely territory bor-

ders Mexico, remain in the ranks of the most

economically depressed of all American groups,

although the possibility of mineral development

now offers some hope. Scattered and only loosely

related small villages, in an area of the state that has

been slow to develop economically, has made

community development all but impossible. Ben-

nett, Problem and Prospects in Developing Indian

Communities, 10 Ariz. L. Rev. 649 (1968)

As a result of the lack of economic opportunity on the

reservation many Papagos are forced to seek employment

in Anglo communities near the reservation, where they

again find their job opportunities limited:

On all reservations studied in the State of Arizona a

clear pattern emerged: Indians are denied equal

access to-jobs and job promotion in all levels of

private industry located on or near reservations and

in bordertowns surrounding reservations. U.S. Com-

mission on Civil Rights, The Southwest Indian

Report (USGPO 1973)

In sum, respondents are economically deprived unas-

similated Papago Indians, residing in an Indian commu-

3

nity located in the central portion of the land that has

always been occupied by their tribe.

SUMMARY OF ARGUMENT

While the Snyder Act was promulgated to insure

continuity in the appropriations process it nonetheless

constitutes the fundamental authority under which the

BIA expends its funds. Since the language of the act is

plain and mandatory the Secretary must follow it unless

Congress has by later legislation clearly indicated its

intent to modify the Snyder Act mandate. The various

appropriations acts, including specifically the 1968 Act,

contain no language indicating such an intent. Moreover,

there is no basis upon which the Court can infer that

intent since the presentations made to the Appropriations

Committees have been unclear and contradictory. The

internal agency instruction (66 IAM 3.1.4) itself cannot

serve as a basis for that inference since it has not been

made public in accordance with stated Bureau of Indian

Affairs policies and procedures.

Even if the Court were to infer Congressional limita-

tion through later legislation, the limitation as applied to

respondents deprives them of equal protection of law and

infringes upon their fundamental right to travel through-

out their historic tribal territory.

ARGUMENT

I.

THE SNYDER ACT CONSTITUTES THE FUNDA-

MENTAL CONGRESSIONAL MANDATE TO THE

SECRETARY OF THE INTERIOR IN REGARD TO

INDIAN AFFAIRS AND THE SECRETARY HAS NO

AUTHORITY TO VIOLATE THAT MANDATE UN-

LESS CONGRESS HAS MODIFIED IT BY LATER

LEGISLATION.