Volume 13 Number 2
May 1974

Daniel M. Rosenfelt

Generally, the federal government has no legal obligation to provide educational services for Indian children. The Congress has authorized the Bureau of Indian Affairs to provide educational services and has regularly appropriated funds for that purpose, but no statute requires the continuation of educational programs (see Note 70). The BIA, which operates some 200 schools for Indians, could probably close them all next year. Federal policy reflecting this legal relation was set forth recently by a BIA spokesman:

The United States did agree in many treaties to provide teachers and other educational services (see Note 72). In some instances the obligation is for a limited number of years long since past (see Note 73). In others, the duration is to be determined by the President (see Note 74) and in a few, there is no period of time specified (Note 75). Even if the treaty promises were legally enforceable, it is not at all clear that an Indian tribe could obtain effective relief. Most of the treaties do not specify how the government shall discharge its obligations, and the government in most instances can argue that its programs of financial assistance to public schools are sufficient to discharge whatever obligation remains. Several of the more specific treaty provisions, moreover, obligate the government to provide services, such as millers or blacksmiths, which may not be appropriate for contemporary needs.

Some treaty education provisions, however, may still maintain validity. One successful instance of educational treaty enforcement occurred when the Mesquakie Indians of Tama, Iowa, relying upon a treaty, brought suit in federal district court in 1968 to enjoin the BIA from closing the day school at the Indian settlement. After the plaintiffs secured a preliminary injunction, the Indians and the BIA reached an agreement and the case never went to trial (see Note 76).

Even though there may be no specifically enforceable federal obligation to provide educational services, there is a strong moral duty derived from the history of the federal government’s dealings with the Indians and the general guardianship or trust relation expounded by the courts. The classic statement of the general federal obligation is found in United States v. Kagama (see Note 77) in which the Court upheld congressional authority to vest federal rather than state courts with jurisdiction over cases involving major crimes between Indians occurring on Indian reservations. The Court explained:

The precise nature of the "wardship" relation has never been defined by the Congress or the Court. Arguably, the "duty of protection" mentioned in Kagama may give rise to a legally enforceable federal obligation to assure that Indian children are provided an equal educational opportunity by either the state or federal government. It seems clear that the wardship doctrine is valid today (see Note 79). Thus, President Nixon, summing up his administration’s Indian policy, stated: "(W)e have turned from the question of whether the federal government has a responsibility to Indians to the question of how that responsibility can best be fulfilled" (see Note 80).

Present education(al) policy reflects a wardship or trust responsibility for only a limited class of Indian people. Enrollment in federal day school is limited to children of at least one-fourth Indian blood and who reside on Indian land under the jurisdiction of the BIA (see Note 81). Approximately 90 percent of these students enter first grade with little or no English language facility (see Note 82) and are ill-equipped to confront a foreign language and a foreign culture in the public schools.

Enrollment in federal boarding schools is limited to children who are eligible to attend day school, when there are no other appropriate school facilities available, or when the children come from broken or unsuitable homes (see Note 83). In practice, the boarding schools serve a large number of orphans, children from non-English-speaking families, the academically retarded, dropouts from public schools, or children having special problems which the public schools are not equipped to meet (see Note 84). The BIA appears to be converting its boarding schools to specialized institutions designed to deal with highly specialized needs of Indian children. Although most boarding schools still offer a general educational program, the boarding school at Santa Fe, New Mexico, serves artistically talented Indian children from throughout the nation, the boarding school at Pierre, South Dakota, serves primarily children with social problems, and the newest boarding school at Albuquerque, New Mexico, provides vocational education. Concomitant with the increasing specialization of federal schools, basic education programs for Indian children are provided by the states to an ever increasing extent.

State governments, unlike the federal government, do have an obligation to provide public education for Indians. The Supreme Court has ruled emphatically that "Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms" (see Note 85).

Indian children who reside on remote reservations not now served by public schools have a constitutional right to education from the state. Under the equal protection clause of the fourteenth amendment, state action which differentiates between two classes of people on the basis of race is subject to strict scrutiny by the courts and will be upheld only if necessary to promote a compelling state interest (see Note 86). Indians are a distinct racial group and are thus able to trigger this rigorous constitutional test (see Note 87).

No state could demonstrate a "compelling interest" in denying Indians access to its public school system. In the remote areas of the Navajo Reservation or in sections of Alaska there are no state schools. Alaska natives need not be sent to federal boarding schools in Oklahoma or Oregon and Navajos need not be bussed 400 miles to the Intermountain School in Utah. Indian people might successfully bring suit to compel the state to provide public schools. The courts have long held that the exclusion based on the availability of federal Indian schools cannot be justified under either federal (see Note 88) or state (see Note 89) constitutions. Nor could such a rule be countenanced in the name of education. In Piper v. Big Pine School District (see Note 90) the Supreme Court of California, with a tacit slap at the quality of education provided by the federal schools, flatly rejected the contention that the availability of federal schools was a fact which justified the exclusion of Indians from California public schools:

1. This article is excerpted from "Indian Schools and Community Control," Stanford Law Review, Vol. 25, No. 4, pp. 502-506. Footnote numbers are retained from the original text, which formed the entire volume, pp. 489-550. This portion was I.-C., and was under "Indian Policy Revised."

70. See, e.g., 25 U.S.C. § § 13, 273, 276 (1970).

71. Letter from Vincent J. Lovett, Chief Div. of Communications Services, to the author, Mar. 10, 1972 (emphasis added), on file with Stanford Law Review.

72. See text accompanying notes 12-14 supra.

73. See, e.g., Treaty with the Cheyenne Indians, May 10, 1868, 15 Stat. 655.

74. See, e.g., Treaty with Sacs, Foxes, and Iowas, Mar. 6, 1861, 12 Stat. 1171, 1173 ("so long as the President . . . may deem advisable").

75. See, e.g., Treaty with the Navajo Indians, June 1, 1868, 15 Stat. 667, 669 (not less than 10 years).

76. Sac and Fox Tribe v. Community School Dist., Cry. No. 68-C39-CR (N. Dist. of Iowa). See SUBCOMM. REPORT, supra note I, at 48-52. The Mesquakie case is the only known instance in which an Indian tribe successfully invoked its treaty education provisions.

77. 118 U.S. 375 (1886).

78. Id. at 383-84 (emphasis in original), cited with approval in Tulee v. Washington, 315 U.S. 681, 685 (1942); Gray v. United States, 394 F.2d 96, 98 (9th Cir. 1967); Maryland Cas. Co. v. Citizens Nat’l Bank, 361 F.2d 517, 520 (5th Cir. 1966).

79. See Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D.D. C. 1972) holding, inter alia, that the trust obligation of the United States to the Pyramid Lake Paiute Indians required the Secretary of the Interior to exercise his powers to allocate all water not obligated to others by court decree or contract to the Indians. In short, the wardship relation imposes affirmative obligations on offices of the United States for the benefit of the Indians.

80. President’s Message supra note 2, at 12 (emphasis in original).

81. 25 C.F.R. § 31.1(a) (1972). Enrollment may be available to children who reside near the reservation when a denial of enrollment would have a direct effect upon Bureau programs within the reservation. Although the needs of nonreservation residents are often just as great as the needs of those who live on reservations, instances in which nonreservation students are allowed to attend BIA day schools are rare. See generally. Sclar, supra note 47.

82. Subcomm. REPORT, supra note I, at 55.

83. 25 C.F.R. § 31.1(a) (1970).

84. R. Havighurst, supra note 1, at 22-23; Interview with John C. Wade, Education Specialist, BIA Aberdeen Area Office, in Flandreau, S.D., June 14, 1972.

85. Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (emphasis added).

86. E.g., Loving v. Virginia, 388 U.S. I, 11 (1967). Strict scrutiny will also be applied to classifications which differentiate with regard to a fundamental interest. While education has been held not to be a fundamental interest under the federal equal protection clause, strict scrutiny may still be applied to educational disparities under state constitutions. See San Antonio Independent School Dist. v. Rodriguez, 93 S. Ct. 1278 (1973) and notes 194-200 infra and accompanying text.

87. See e.g., Simmons v. Eagle Seelatsee, 244 F. Supp. 808, 814 (E.D. Wash. 1965) (three-judge court), aff’d, 384 U.S. 209 (1966) (Indians can only be defined by their race).

88. Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926 (1924).

89. Grant v. Michaels, 94 Mont. 452, 23 P.2d 266 (1933); Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926 (1924); Crawford v. School Bd., 68 Ore. 388, 137 P. 217 (1913).

90. 193 Cal. 664, 226 P. 926 (1924).

91. Id. at 673, 226 P. at 930. The highly critical findings of the Senate Subcommittee on the quality of education provided by the federal school system refute any contention that federal schools provide a consistently superior educational opportunity for Indian cbildren. Subcomm. Report, supra note I, at 99-104.