Reid Peyton Chambers was associate solicitor general for Indian affairs in the Nixon and Ford administrations
Jonathan Movroydis: Welcome to the Nixon Now Podcast, I’m Jonathan Movroydis. In July 1970, President Nixon delivered his message, his special message to Congress on the Indian affairs breaking with two centuries of unjust practices and policies against Native Americans. Nixon said, “From the time of their first contact with European settlers, the American Indians have been oppressed and brutalized, deprived of their ancestral lands, and denied the opportunity to control their own destiny. Even the federal programs which are intended to meet their needs have frequently proven to be ineffective and demeaning.”
On this edition of the “Nixon Now Podcast,” we speak about the dramatic reshaping of American Indian policy with one of the foremost experts and pioneers in Indian law. A Harvard graduate, Reid Peyton Chambers served as associate solicitor for Indian affairs at the Department of Interior from August 1973 to September 1976. Since 1976 and for over 40 years, he’s been a partner of Sonosky, Chambers, Sachse, Endreson, & Perry, a law firm dedicated to representing Indian tribes and Alaska native organizations. He’s also author of an extensive article in the “University of Tulsa Law Review” that came out on spring 2018 on the subject we’re about to talk about today. It’s called “Implementing the Federal Trust Responsibility to Indians after President Nixon’s 1970 Message to Congress on Indian affairs.”
Reid, great to have you on. Welcome.
Reid Peyton Chambers: Thank you, Jonathan. Great to be on.
Jonathan Movroydis: Just to start off a little bit about your background, can you describe how you came to practice Indian law?
Reid Peyton Chambers: Oh, in some ways, Jonathan, I guess because I went to law school in the ‘60s and wanted to do something that could change the world a bit. And I was, you know, a little bit of the idealism of the civil rights movement that I participated in to a certain extent and then I got into teaching at UCLA Law School, and there was a professor there, Monroe Price, who was teaching one of the first courses in Indian law. There were only a couple of law school classes in Indian law in the early 1970s and I collaborated with Monroe in teaching that class and also in working with some of the public interest law firms that were set up, California Indian Legal Services and the Native American Rights Fund, both of which still exist, but these then were new organizations that were providing pro bono legal services to Indians and I was working with them on their cases.
Jonathan Movroydis: And am I correct in understanding that you are a lifelong Democrat and was a supporter of Senator Eugene McCarthy voter from the 1968 election and in 1972 for George McGovern? Why the Nixon administration?
Reid Peyton Chambers: Oh, it had to do with the character of the political appointees in the Nixon administration who were Republicans and their willingness to I guess really hire someone based on merit and their wishes to implement the Nixon Indian policy, which they had been instrumental in developing. I’m thinking of Leonard Garment. Well, I think actually, he was also a Democrat, but he was in the Nixon White House as a special counsel, his assistant Brad Patterson, who is still alive today at age 96, that was really in charge of implementing the Nixon Indian policy.
And then the late Kent Frizzell, who was the general counsel or the solicitor of the Interior Department. Kent was a political appointee, a Kansas Republican, but he was very committed to carrying out the Nixon policy in part because Kent had successfully, for the United States, negotiated an end to the Wounded Knee set off you know, kind of the occupation of Wounded Knee on the Pine Ridge Reservation in early 1973. And he came back from that recognizing how…what you were saying earlier and what President Nixon has said in his message that Indians were impoverished, that they were probably at the lowest end of the totem pole at that time in American society, in terms of the economic activities on reservations, the poverty, the social distress.
And the Nixon administration, their political appointees, the ones in the justice department too wanted to do something about that. And so Kent interviewed me for the job and asked about political affiliation and I told him that I knew it would be an appointment that would have to be cleared in the White House and that it might be hard to clear a Democrat and I understood that would be so. I think it was a less polarized partisan time then, Jonathan, also.
I mean, I think people were more amused that I was a Democrat that had worked on the Eugene McCarthy campaign than really put off by it, the people I worked with at Interior and Justice.
Jonathan Movroydis: Let’s talk a little bit about the Indian policy, the history of the Indian policy in the United States. Can you give us a brief overview of the United States’ relationship, the historical relationship with the American Indian? The Nixon administration kinda summed it up this way. It first started as extermination, a policy of extermination, and then it went into a policy of assimilation and then ultimately, a termination in the 20th century. Could you touch upon the overall policy?
Reid Peyton Chambers: Sure. And I absolutely agree that the Nixon policy was a dramatic and permanent shift in federal Indian policy toward Indians, that the…that Indians in much of the 19th century were regarded a little bit the way some people regard Islamic terrorists today. They were a threat to the security of the body politic and they needed to be confined on reservations that were really almost military outposts and indeed, the military administered the reservations in parts of the 19th century, in parts of the country. And the thought was that they were savages and needed to be controlled, weren’t quite prisons, though some places were really prisons, but they were set off from the rest of the society and supposed to be isolated and kept apart from the West as it expanded.
But for most of the time after the Civil War, the policy, as you’re saying, was assimilation and actually what President Nixon referred to his termination was a form of assimilation, that the policy in the 19th century had been to break up the Indian reservations into individual landholdings, allot the lands to Indians as individuals, convert them from hunters to farmers and bring them into the American economy as farmers. Of course, in the late 19th century, the majority of people lived on farms and lived in rural areas and so that was seen as making Indians like everyone else.
There were lots of reasons it failed. There wasn’t enough land set aside for the Indians and it wasn’t good enough land. But another reason it failed was paternalistic control of what went on on Indian reservations in the late 19th, early 20th century. Not so much by the military, but by sometimes well-meaning federal bureaucrats and that the Indians basically needed the approval of federal officials to do virtually anything. President Nixon mentioned that in his message and in 1968, he was…in 1970, he was entirely correct when he said that the reservations are quote, “almost entirely run by federal officials rather than tribal leaders.” And so a big change was to get away from paternalistic control by non-Indian officials of what the Indian destiny would be.
It seems odd that, in two centuries, no one had ever come up with the idea, as President Nixon said in the message, that the Indian future must be determined by Indian acts and Indian decisions. But except for a brief period in the new deal, in the Roosevelt, Franklin Roosevelt administration, that had not been the federal policy. And when Nixon became president, the policy was more or less forcibly to assimilate Indians, to abolish Indian reservations, to sell the Indian land, to remove federal protections from it and to terminate any relationship, their special federal relationship to the Indian tribes and with the Indian tribes.
And that had been the policy particularly after the Second World War, in the Truman and Eisenhower administrations. And Nixon, of course, was Eisenhower’s vice president, but he had a very strong commitment to a different view. And when he was running for office, he promised the National Congress of American Indians that there would not be any further termination of any relationship with any Indian tribe without that tribe’s consent. That itself was a big change.
But even more importantly, saying that the…at the time Nixon became president, most of the officials in the federal agencies that administered Indian programs, the Bureau of Indian Affairs, particularly, in the Interior Department, were non-Indians. And during the Nixon administration, that dramatically changed, that for the first time ever, the government enforced preferential laws for hiring Indians for high positions, but really, all the positions in the Bureau of Indian Affairs. And that was one of the cases that was won by my friend and law partner, Harry Sachse, who was in the Justice Department at the time in the Supreme Court sustaining the legality of that policy.
Jonathan Movroydis: Why do you think were the political winds shifting at the time? Why did it make sense for the for the Nixon administration to do this? Essentially, you know, you’re giving land, you’re making land transfers, you’re transferring the rights away from the U.S. government. Why did this make, I guess, political sense for the administration to do?
Reid Peyton Chambers: Well, that’s an excellent question. The question is did it really make political sense? I never had a feeling that this was a political or politically motivated decision. I think it came out of an empathy or sympathy that President Nixon himself had for Indian people. There is, as I understand, that his college football coach at Whittier College was a Native American…
Jonathan Movroydis: Right, Chief Newman.
Reid Peyton Chambers: Chief Newman. And Nixon was very close to Newman and saw him as a mentor and so I think that itself had influence on it. I don’t think the policy was very popular in the western states. And Senator Anderson of New Mexico reportedly said if the Nixon message was issued, he would vote against the Anti-Ballistic Missile Treaty. So there was a lot of political opposition, some of it was with Democrats, some Republicans.
My recollection is that President Nixon carried most of the western states, so that was a political base of his but I don’t think this was a policy that was ever particularly popular among his base in the western states. I think this was a decision made on principle and I’m very glad it was made. I think it’s made America a much better place for Indians to live in today than it was, say, in 1968 or 1970, much better results economically.
For example, when Indians control economic activity on their own reservations rather than having someone else do it. So it’s been a successful policy and I think that has led to its continuation. Every administration since Nixon has followed basically the road that the Nixon administration took.
Jonathan Movroydis: Do you think it fit at all with the policy that Nixon had of new federalism, no revenue sharing, bringing back…taking back, taking power away from the federal government and bringing it to more local levels where people, I guess, can control their more…they can control their own destiny and money more easily?
Reid Peyton Chambers: I mean, I can see it that way. I never understood it that way at the time, particularly, but I think it may well fit in that mantra. But remember that one part of it is that by giving Ind-…you know, recognizing Indian control over reservations meant that state and local government controls were diminished and an important part of the legal cases we handled during the Nixon administration was to support Indian self-government by resisting incursions of state government, state taxation, for example, of Indians on reservations.
We won an important case in the Supreme Court, the Bryan versus Itasca County case holding that the state of Minnesota could not tax Indian activities on a reservation even though you had a federal statute that ostensibly gave states some civil jurisdiction over Indian reservations if they…certain enumerated states, including Minnesota. We got the Supreme Court to interpret that statute narrowly and I thought that was a particularly courageous decision Solicitor Kent Frizzell made in terms of urging the Justice Department to take that position in the case. And he made it because he thought it was a reasonable argument on behalf of the Indians.
He said, “Look, a trustee, basically, will take any reasonable legal position that aids the beneficiary. That’s what a trustee does.” And that does get back to the part of Nixon’s message, which was most important to the work that I was doing at the Interior Department under Kent’s direction, which was to support the reasonable legal claims of Indians either to be self-governing as against state jurisdiction or local control, but also to support their rights to natural resources.
Water rights in the western states, we brought one case involving the Pyramid Lake Tribe in Nevada that ultimately went to the Supreme Court supporting the water rights under the executive order, establishing that reservation as prior and paramount to any other water rights in western Nevada. And did that even though there was a federal reclamation project also administered by the Interior Department that had conflicting claims to water.
So we were bringing cases to enforce hunting and fishing rights throughout the West, particularly the…in Washington state where the allocation of fish was dramatically increased for Indian tribes as a result of, again, a Supreme Court victory in the Washington fishing vessel case. That was the case where the United States stood shoulder to shoulder with tribes as a trustee. The tribes were also participating in the case. And we did similar cases in the upper Midwest, Minnesota, and Wisconsin and Michigan, again, supporting Indian off-reservation treaty fishing rights and a generous allocation of the available fish for Indian tribes.
And I don’t think those were particularly politically popular decisions in those states where it was brought. So I’ve always seen it as a matter of principle, that from the president on down within the administration, that they felt the Indians had been disadvantaged in the past and they wanted to change that. And they really did, I mean, not just in legal cases, but in terms of the results of once you have a policy of self-determination and the Indian tribes are largely governing their own reservations, you have accountability and you have the Indians being responsible for their outcomes. The outcomes in our adult lifetimes, Jonathan, have been a lot better than they were, say in our parents’ adult lifetimes for Indian tribes.
Jonathan Movroydis: Right. The title of your article is “Implementing the Federal Trust Responsibility.” You talked a little bit about the trustee and the beneficiary. Is there a certain precedent that the United States has in terms of being a…having that federal trust responsibility to the American Indian?
Reid Peyton Chambers: Yes. I mean, President Nixon, in his message, called it a solemn legal obligation in return for which the tribes had often surrendered vast tracks of lands in the treaties between the tribes and the United States and the other agreements between tribes in the United States in return for federal protection of the lands and the rights that the tribes retained. I guess, really, the genesis of the trust responsibility goes back to Supreme Court cases in the 1830s, where the author was Chief Justice John Marshall. Yeah, I guess he wasn’t the first chief justice of the Supreme Court, but he was certainly the chief justice that was formative of a lot of constitutional doctrine in the early 19th century.
Marshall dominated the relationship between the tribes in the United States as being like that of a guardian to a ward. So a guardianship is a kind of trust responsibility. Those decisions also affirmed that the treaties recognized the tribes as being distinct political societies and being generally free of state and local jurisdiction, but under federal protection. So that was the genesis of it.
The Nixon message though was the first time I think that a president had ever specifically articulated a policy of his administration to vigorously enforce the obligations of the United States and also recognize that, at times, there was a conflict between other federal responsibilities, federal landholding agencies like the Bureau of Land Management or the National Park Service, the Forest Service. These other agencies had conflicting claims to lands that the Indians also claimed.
And a lot of those agencies, not all of them, but a lot of them were in the Interior Department or the federal reclamation projects that had been administered by the Bureau of Reclamation in the Interior Department had conflicting to water that Indian tribes were claiming. And under the Nixon administration, we charted a course, which I think is largely in place today, almost 50 years later, where the United States, the Justice Department and the Interior Department as trustee argues for the rights of Indians to water, to hunt and fish, to land and litigate those claims against competing interests and lets them be decided in the courts.
Jonathan Movroydis: You had mentioned you know, the action that the Justice Department took and the Bureau of Indian affairs. This was bolstered though by legislation towards the end of your term, the American Indian Self-Determination Act. What did that do?
Reid Peyton Chambers: That was perhaps the most important. The only competitor would be the Indian Reorganization Act during the new deal, when I say it’s probably the most important single piece of Indian legislation in the 20th century. And it was proposed by President Nixon in the 1970 message.
Basically, the concept was that federal programs benefiting Indian tribes should be contracted out so that they were…should be administered by the tribes themselves rather than administered by federal bureaucrats. So it set up a system of government-to-government contracts which the tribes would administer, they would be financially accountable. I mean, they’d be subject to audit by the federal agencies to make sure there was no misuse of funds, but the tribes would administer the Indian health programs, the Bureau of Indian Affairs programs. It’s been expanded subsequently to include housing programs, public housing programs on Indian reservations, for example.
Jonathan, that over half of the Indian health service budget now is a contracted with Indian tribes to administer the programs. And there are Indian intertribal groups around the country that administer hospitals. Tribes often administer health clinics on their own reservations, hire the medical personnel, collect the…any Medicaid or insurance reimbursements, Medicare reimbursements, and really operate full medical facilities.
It’s also true of housing programs and it’s true of most Bureau of Indian Affairs Programs, that those are administered by the tribe. So you go to an Indian reservation today, and the Head Start programs are administered by the tribal leaders, the law enforcement programs. The tribal police are the law enforcement personnel and they have contracts either with the Bureau of Indian Affairs or with the Justice Department to administer the tribal courts, the tribal jails.
Tribes are functioning today very much the same way a county government would or a local municipal government. That certainly wasn’t true before the Nixon message and it’s a sea change in the Indian affairs.
Jonathan Movroydis: Looking back at the July message, you know, for purpose of comparison, how would you measure the social, political, and economic condition of the American Indian from 1970 to almost 50 years on after that message?
Reid Peyton Chambers: Well, if you look at the way things were in 1970, most Indians who lived on reservations or even in cities, I think the majority of them were below the poverty level. Indian reservations were isolated. They were in rural areas and they were controlled by federal administrators.
And that has changed that in the period, say, since the late 1960s, 1970 to the present time, Indian per capita income has grown at a faster rate over that period than for the rest of the society. Now, they started out way behind, and today, Indian per capita income is somewhere between 50% and 60%, I believe. I think that’s the right figure. It’s in that range. It may be a little below 50% of what the national average is. So it’s still not where one would hope it would be, but tribes are far more prosperous today and far more in control of their own affairs than they were before, than they were, say, 40 or 50 years ago or even 20 years ago.
Let me give one example. As you probably know and our listeners probably know, most tribes, a number of tribes run various kinds of casinos, gaming enterprises to make money like state lotteries do for states, for tribal programs. The total income for Indian tribes from that activity, nationwide, is about $28 billion a year. That’s about three times the whole federal Indian budget for housing, for Indian health, for the Bureau of Indian Affairs. It’s more like $9 million if you add it all up. So the tribes themselves are running economic enterprises that produce more income than federal programs do.
In the 1970s, federal programs were virtually the only source of income for almost all Indian tribes. Now, the $28 billion is not evenly distributed. Tribes that are near major metropolitan areas have greater opportunities to do successful casino gaming than tribes out in the rural parts of the west or rural parts of the country. But it is again, a very big change.
Jonathan Movroydis: The article is “Implementing the Federal Trust Responsibility to Indians After President Nixon’s 1970 Message to Congress on Indian Affairs” in the “University of Tulsa Law Review,” check it out. Our guest was Reid Peyton Chambers. Reid, thank you so much for your time.
Reid Peyton Chambers: Jonathan, thank you very much for arranging this. Pleasure to talk to you.