New Federalism, New Deal Welfare Reform, and the New “Indian Problem”

Federalism in the United States is both the foundation of government and an unstable concept. Ideas about the proper relationship of the federal government and the states have changed over time, as have the practical bounds of federal and state power. Change came fast in the opening decades of the twentieth century, so much so that observers announced a “new federalism.” The main innovation was cooperation: states found themselves sharing with the federal government areas of governance that once had seemed to fall squarely within states' exclusive jurisdiction.Footnote ²⁹ Grants-in-aid were the preferred vehicle. Between 1900 and 1930, the combined amount of federal-to-state grants rose from $2,800,00 annually to more than $100,000,000; by fiscal year 1946–47, the estimated annual total exceeded $1 billion. This grant money became a significant part of state budgets. In the early years of the Depression, federal grants covered less than 2 percent of state and local expenditures; by 1950, that figure was closer to 9 percent.Footnote ³⁰

Poor relief became a significant area of shared jurisdiction. Historically, poor relief was a local function, much like education. Toward the end of the nineteenth century, states had begun to play stronger oversight and standard-setting roles, but in most parts of the country, local officials continued to control day-to-day administration. The Great Depression encouraged reconsideration of this arangement. Under great financial stress and facing problems that could not be solved locally, cities and towns ceded much of their authority over poor relief to the state and federal governments. Under the terms of temporary Federal Emergency Relief Administration grants (1933–35) and, later, the renewable grants authorized by the Social Security Act of 1935, local officials continued to evaluate the needs of the poor, but under the watchful eye of state supervisors, federal auditors, and professional social workers, imported into local communities at the insistence of these more remote levels of government.Footnote ³¹

Nothing about this new arrangement was simple. One difficulty was fiscal: states received public assistance grants on a matching basis, giving state legislators an incentive to fund poverty programs but also a keen awareness of the federal government's influence on their spending choices. This influence loomed larger over time as the value of federal public assistance grants increased, from approximately $28,400,000 in 1936 to $732,000,000 by 1948. The federal government also attached “strings” to its grants. State officials retained vast discretion, much of which they passed on to local authorities, but there were firm rules about how the assistance programs were to operate (uniformly throughout the state), who ought to control them (a central state agency, staffed by civil servants), and how the states would assure the federal government of their compliance (regular reporting, audits). More important, federal administrators were committed to monitoring state behavior. Through detailed regulations, roving field agents, and standing offers to train and educate local welfare workers, federal administrators tied state welfare programs to Washington. In short, New Deal welfare reform enabled states to care for their citizens and preserve many aspects of traditional, localized poor relief, but at a price. Some officials found themselves running social programs that they considered unnecessary and helping people who, in their view, did not deserve help. They were also prevented from doing things they did want to do, such as issuing relief in kind (rather than cash) and aggressively monitoring recipients.Footnote ³² To control poor relief is to define and police a crucial “border of belonging,” a jurisdiction not easily shared.

Further complicating matters, this “new federalism” in poor relief affected questions that had long plagued the “old federalism”: What rights did Indians have, and against whom? Who was responsible for enforcing those rights? The nation's founding documents provided incomplete and contestable answers. Interactions with Eastern tribes informed the content of the United States Constitution, but the document itself did not purport to govern them, much less the tribes West of the Mississippi (who were not even arguably within the territorial jurisdiction of the nation at the time).Footnote ³³ Indians' relationship to the federal and state governments was continually negotiated and became more complex still as the legal space of “Indian Country” came into being. Federal courts developed relatively simple doctrines to govern disputes, but their rulings were difficult to enforce, and their judgments rested on characterizations (“alien nation,” “ward,” “dependent domestic nation”) that were themselves contradictory and unstable.Footnote ³⁴ The legal status of Indians in the Southwest was particularly complex: under the terms of the Treaty of Guadalupe Hidalgo (1848), Mexican citizens in the ceded territory—including Pueblo Indians—became United States citizens; the same history created uncertainty as to whether the Pueblos were “Indians” for purposes of federal protection and regulation.Footnote ³⁵

The Indian Citizenship Act of 1924 (declaring “all noncitizen Indians born within the territorial limits of the United States” to be United States citizens) purported to settle the question, but met immediate resistance from the Iroquois, who rejected Congress's unilateral actions.Footnote ³⁶ The Act also left many smaller questions unresolved, so much so that in 1930, when asked “what the Indians want from the government,” W. David Owl, a Cherokee Indian and a minister to the Seneca Nation, answered thus: “The Indian . . . wants to know where he legally belongs,” “where his duties and rights begin and end.”Footnote ³⁷ Owl's claim to speak for “the Indian” was tenuous, but he accurately diagnosed jurisdictional confusion. Lewis Meriam, head of the Institute for Government Affairs and author of the influential Meriam Report, pointed to one family, living on the grandfather's allotment of tribal land, in which some members were “exclusively wards of the nation,” others were “free and independent citizens of the state and county,” and others—including a “little child of mixed Indian and white blood”—were the subject of fierce intergovernmental disputes. Invoking a phrase that had become shorthand for Indians' challenge to white designs, Meriam dubbed this “the Indian Problem.”Footnote ³⁸

Administrators of the Social Security Act used the phrase, too, when they discovered that the Act left ambiguous whether states must include Indians in their federally subsidized public assistance programs or whether responsibility remained with tribal governments and the federal Bureau of Indian Affairs (BIA). This was not a trivial question. Although Indians comprised less than half a percent of the nation's population in 1930, making for modest fiscal stakes, they had long been entangled (and had purposely entangled themselves) in power struggles between the state and federal governments.Footnote ³⁹ For the newly created Social Security Board, faced with administering a monumental New Deal policy at a moment of grave concern about the power of agencies, the pressure was great.Footnote ⁴⁰

The “Indian Problem” only deepened as administrators turned to the Social Security Act's legislative history and found “ominous silence.”Footnote ⁴¹ The word “ominous” was apt—grave difficulties were indeed in the Board's future—but silence befitted a transitional era in federal Indian policy. Since the 1880s, Indian policy had encouraged private land ownership and assimilation, ostensibly to foster self-sufficiency. Under the Dawes Act (1887), the federal government carved reservations into parcels and “allotted” them to individual Indians, in exchange for national citizenship. The Compulsory Education Act, passed the same year, sought to eradicate the markers of indigenous identity. These policies remained in place for decades, despite indications of inefficacy and abuse. Then, in 1934, the Roosevelt Administration dramatically changed course. At the urging of progressive reformer John Collier, Commissioner of Indian Affairs, Congress enacted the Indian Reorganization Act. Tribal autonomy and self-rule became the new watchwords of federal policy. Dissent was apparent from the outset, however, and assimilatory approaches remained in play.Footnote ⁴²

Given this complexity, the Social Security Board would have happily left the “Indian problem” unresolved, but almost immediately, administrators heard from county and state officials anxious to free themselves of what they saw as an unfair burden. In recent years, those officials had eagerly accepted funds from the Federal Emergency Relief Administration (FERA), the Roosevelt administration's short-term solution to nationwide impoverishment, but were alarmed when FERA administrator Harry Hopkins required them to apply those funds also to “ward” Indians within state borders. Some protests were ideological: why give Indians direct relief after years of encouraging self-support? Others stemmed from local administrators' unfamiliarity with indigenous languages, customs, and needs. Whatever the source, these persistent objections required an answer.Footnote ⁴³

In theory, the response was obvious, at least to federal lawyers: if the Social Security Act was vague, the Equal Protection clause of the Fourteenth Amendment was not. States must treat Indian applicants the same as all others. Such was the conclusion of federal attorney (and renowned suffragist) Sue White in an internal memorandum in early 1936.Footnote ⁴⁴ Very quickly, however, White recognized the Board's delicate political situation. She urged the Board to say little; dissatisfied claimants could initiate administrative hearings or test the matter in court.Footnote ⁴⁵

In practice, then, the Board responded to state inquiries with shadow and implication, and for the most part, that sufficed. Federal administrators conveyed that the Board would frown upon discrimination against Indians (“serious questions might arise”), but avoided firm statements. States that approached the BIA received a similar, if more forceful, response. Interior Department Solicitor and former NAACP legal strategist Nathan Margold insisted that the Social Security Act offered no legal shelter to states contemplating exclusion, a message that his agency conveyed to North Dakota and Montana.Footnote ⁴⁶ These states and others (for example, California, Idaho, Oklahoma, Utah, Washington, Wisconsin, and Wyoming) ultimately did not attempt to exclude Indians, “ward” or otherwise, from their programs.Footnote ⁴⁷

Arizona and New Mexico, however, would not submit so easily. State officials continually excluded Indians from their programs and ignored Board threats. These states had distinct histories and demographics, and, for a time, their relationship was more competitive than collaborative. In the late nineteenth century, as both lobbied for statehood, Euro-Americans in Arizona contrasted their purportedly white, civilized territory with their unassimilable, darker neighbor (a reference to New Mexico's larger Mexican and Indian populations).Footnote ⁴⁸ By 1935, however, the two states shared several important characteristics. In both states, the federal government was a major landowner, and its agencies were a regular and not entirely welcome presence. Both also had relatively large American Indian populations. Indians comprised 13.2 percent of Arizona's population and 8.7 percent of New Mexico's in 1930, giving the states 10 and 7 percent, respectively, of the nation's total Indian population. Moreover, the major Indian communities there—the Navajo (Diné), Apache, and Hopi—had remained on reservation land rather than dispersing into non-Indian communities (in contrast to the indigenous peoples in Oklahoma, then home to the nation's largest Indian population). In the words of one government observer, Arizona and New Mexico were “full blood country.”Footnote ⁴⁹ The Navajo people, whose reservation spanned the two states, comprised the largest tribe in the United States—approximately 50,000 members strong—and carried a deep and well-founded distrust of American government.Footnote ⁵⁰ The Pueblo Indians, meanwhile, had attracted national attention in recent decades for fierce defenses of their land and culture.Footnote ⁵¹

Arizona officials were especially forthright. Senator Carl Hayden, generally a supporter of the New Deal, demanded to know why Arizona citizens should care for people who, as he put it, did not pay taxes and chose to reside in “primitive conditions” on federal reservations.Footnote ⁵² On the strength of this conviction, the Arizona legislature chose to forego federal funding in 1936 rather than authorize a public assistance program that covered Indians. Legislators appeared to “swallow[] their prejudices” a year later, when, knowing the Board's position, they enacted an old-age assistance law and applied for a federal grant.Footnote ⁵³ But this did not represent closure, as subsequent events would show.

“Make No Inquiries of Any Kind”

For the next decade, the Social Security Board, the BIA, and state officials engaged in elaborate and ever less collegial negotiations. In early 1937, some actors supported amending the Social Security Act to provide complete federal financing: that is, states would accept applications from reservation Indians, but the federal government would reimburse them for all costs. Senator Hayden spearheaded the initiative in Congress as he would do, unsuccessfully, many times hence. Within months, however, one group in the BIA defected, out of concern that a special provision for Indians would hinder assimilation. In 1939, an amendment again seemed likely, but died at the hands of Secretary of the Interior Harold Ickes. Indian leaders were excluded from the conversation, but demonstrated awareness of the “problem” they posed. In July, 1937, for example, the Navajo Tribal Council recognized the benefits that Navajos might derive from the Social Security Act and formally resolved to pay a “just share of the cost.”Footnote ⁵⁴

Nevertheless, welfare workers in Arizona and New Mexico treated most American Indians as ineligible for benefits. In November, 1938, none of New Mexico's 28,941 Indians received public assistance; in Arizona, home to 43,726 Indians, a mere 15 were on the rolls and all lived on the Colorado River reservation, which straddled the Arizona–California border. A year later, according to Social Security Board records, New Mexico continued to deny assistance to reservation Indians and was aiding at most two dozen nonreservation Indians; Arizona had no Indians of any kind on the rolls.Footnote ⁵⁵ By all accounts, however, Indians in these states lived in extreme poverty. In 1940, the average per capita annual income among the Navajos, for example, was a mere $82 (compared to a national average of a $575 and a regional average of $399).Footnote ⁵⁶

Fortunately for state officials, Senator Hayden was already a dozen years into his long stint on the powerful Senate Appropriations Committee and readily wielded his influence. Despite mounting evidence, the Social Security Board's leadership had agreed “to let sleeping dogs lie,” Hayden told his state's anxious Commissioner of Social Security and Welfare in October 1939. “Make no inquiries of any kind,” Hayden instructed, and “there will be nothing for us to worry about.” Hayden also personally attempted to remove the “Indian Problem” from the Board's sightlines. For example, in May 1940, when entrepreneurial BIA field agents urged Navajos to apply for state public assistance—with hopes, Arizona officials suspected, of making “test cases”—Hayden colluded with Indian Affairs Commissioner John Collier to make the matter disappear.Footnote ⁵⁷

These maneuvers became increasingly difficult as American Indians, much like African Americans, Latino Americans, and women, seized on the rhetoric and demands of wartime to claim their rights as citizens. In early 1941, an attorney contacted the BIA on behalf of several tribes, and demanded to know whether Indians in Arizona were entitled to public assistance benefits. That same year, representatives of eight Indian communities—the Mojave, Chemehuevi, Hualapai, Maricopa, Pima, Cocopah, Papago, and Supai—paid a visit to Arizona Governor Sidney Osborn and claimed that if they were citizens enough to be drafted, they were citizens enough to vote and receive old age assistance. “If these old people cannot get pensions,” explained Mojave spokesperson R. K. Booth, “they want the government to send their sons and grandsons back to them.” San Carlos Apache H. E. Nabekage took a similar tack in his individual petition to Senator Hayden. In inquiring about “an old age pension,” he emphasized both his dire need and his service to the country 42 years ago, when he “played some marches for President McKinley.” (Illustrating the complexity of Indians' relationship with the United States government, his letter also asked “to have our old reservation's line mark[ed] out again.”) “Even our naturalized Mexican people all receive old age assistance,” one local BIA superintendent gently reminded Hayden. Arizona officials feared these conversations. Hayden had for years persuaded federal administrators to overlook what he privately described as “direct and flagrant violation” of federal law. That arrangement would end, he knew, “the moment there is any wide-spread discussion.”Footnote ⁵⁸

By the spring of 1943, the pressure became too great for Hayden's allies at the BIA. (In the face of severe wartime cutbacks and the agency's physical exile to Chicago, they had grave problems of their own.) Nearly forty Indians on the Gila River Reservation, home to the Pima and Maricopa communities, had by then filed old age assistance applications with their county public welfare board. According to the state social welfare commissioner, they appeared “determined to have the matter brought to a head.” Predictably, the county board sought to shift responsibility to the BIA, but this time, the BIA refused to cooperate. To the county's pestering letters, Commissioner Collier responded coldly: “The Pima Indians are citizens and the social security law applies to all citizens,” he declared, with carbon copies to his previous coconspirators in the Social Security Board and the Arizona congressional delegation. The stage was set for a confrontation between the Social Security Board and the two recalcitrant states.Footnote ⁵⁹

Mapatis v. Ewing: Federal Bureaucracy and the Borders of Belonging

Slowly, the wheels of bureaucratic justice began to turn. In the mid-1940s, it was Arizona's policy to take applications from reservation Indians, but “reject[] them wherever possible.” New Mexico's state welfare agency, although more progressive than Arizona's in all other respects, rejected applications outright, citing the federal government's superior responsibility as well as language barriers, insufficient resources, and jurisdictional deficiencies. In correspondence with the Social Security Board, however, the states vehemently denied pursuing such policies, leaving it to federal field agents to compile evidence. Finally, in the spring of 1946, the Board warned the two states that their discriminatory practices must end. Via their power over grants-in-aid, federal administrators were prepared to enforce a new understanding of Indian citizenship.Footnote ⁶⁰

Indian activists and wartime politics forced the Board's hand (in ways that some Board insiders welcomed and, in fact, encouraged). As the country rallied around notions of equal treatment and opportunity, Indian veterans such as Ira Hayes (made famous when photographer Joe Rosenthal captured him and five comrades raising the United States flag during the Battle of Iwo Jima) returned home to the Southwest. They called attention to the social and economic inequalities they encountered there. Navajos were particularly vocal, both because of their distinguished military service and the appalling conditions on their reservation. In 1946, more than one third of Navajo families had incomes under a BIA-determined “subsistence level.” Only a fraction of those families received BIA relief payments, however, and these fell far short of need: the average per person relief grant on the reservation was a mere $5.04 per month ($60.48 per year). The effects of this extreme poverty were discernible in shockingly high rates of infant mortality and compounded by meager social services and public infrastructure.Footnote ⁶¹

At the urging of the National Congress of American Indians (NCAI), a recently formed pan-Indian organization, reservation Indians in Arizona and New Mexico decided to expose the states' discriminatory practices: they applied for public assistance and closely tracked the applications. Using insiders' knowledge of government bureaucracy—most of the NCAI's founding members had ties to the BIA—the NCAI then forwarded evidence of inaction to allies in the Social Security Board.Footnote ⁶²

The effort reflected diverse and divergent goals. Oklahoma Cherokee Ruth Muskrat Bronson, the NCAI's first executive director and the coordinator of the campaign, was interested in freeing Indians from federal paternalism by forcing the states to assume their rightful obligation. In 1931, as a Guidance Officer for the U.S. Indian Service in Kansas City, Bronson boasted of “not ask[ing] for federal help” for poor “ward” Indians, but instead directing them to local social agencies. Tending to these citizens was “the city's job,” she felt, just as it was to provide for “the Mexican family . . . or the Polish family, or any other family needing aid.” Sixteen years later, she pursued a similar strategy, this time, shrewdly, with the aid of a federal agency. In contrast, John Mills Baltazar, chairman of the Jicarilla Apache Tribal Council, emphasized tribal self-help: state payments to needy Indians would take pressure off tribal relief funds, leaving more money for reservation improvements. Sam Ahkeah, chairman of the Navajo Tribal Council, suggested an even simpler goal: survival. Even a single day's delay in getting public assistance benefits to his people, he wrote Bronson, was to deny them “life” itself.Footnote ⁶³

State officials had similarly diverse interests, but their response was uniform: they characterized reservation Indians as only nominal citizens, fundamentally different from poor whites because of their refusal to subject themselves to state law and their embrace of federal government protection. The federal government and the Indians wanted Indians to be treated differently, state officials insisted. As a condition of joining the Union, Western states explicitly disclaimed jurisdiction over Indian lands, and Indians and the federal government had continually thwarted attempts to renegotiate this arrangement.Footnote ⁶⁴ “[T]he Indian reservation might as well be Canada,” Arizona Governor Daniel Garvey explained to a local newspaper, “because they do not permit the officers of the state to go there in carrying out their duties.” Indians' true status was “wards” of the federal government, or as New Mexico Governor Thomas J. Mabry suggested, “neglected ‘prisoners of war.’” “The plight of these people is not of the state's doing,” insisted Arizona Senator Ernest McFarland.Footnote ⁶⁵

In the face of the states' resolve and ongoing media exposés of Navajo poverty, the Social Security Board had no choice but to summon representatives from both states to Washington, D.C. (Indeed, some federal administrators actively courted the opportunity.) As of late 1947, however, it appeared that the states might escape judgment. On the advice of their congressional delegations, the state agencies refused to admit liability, but offered to “process” Indian applications, that is, to accept applications and certify them to the BIA for payment, out of BIA reserve funds. With luck, this would table the “Indian Problem” until President Truman made good on his December 1947 pledge of a Marshall-Plan-type “rehabilitation” program for the Navajos, the states' neediest Indian population.Footnote ⁶⁶

Luck was not with them. In March of 1948, before any such plan could alleviate the states' burden, the BIA claimed to have run out of funds, leaving the states with Indian applications on their books but without the expected reimbursements. State officials stalled, shuttling papers from one office to another and holding applications for “further study.” Eventually, the BIA came up with some money, by shamelessly diverting funds earmarked for care of delinquent children, but by then, Arizona and New Mexico had a new enemy to contend with: Felix S. Cohen, the nation's pre-eminent authority on Indian law and the architect of the Indian New Deal.Footnote ⁶⁷

Cohen had recently left the Interior Department and was spoiling for a fight. That he chose this one—over inclusion in state welfare programs—is, at first glance, unusual. Unlike many of his contemporaries, Cohen resisted the notion that Indians must assimilate into non-Indian political communities; he treated tribal legal claims as legitimate and important. But he also believed in Indians' individual rights as citizens of their respective states and the United States.Footnote ⁶⁸ In 1948, Cohen joined the legal campaign to vindicate Indian voting rights in Arizona and New Mexico, which continued to deny Indians the franchise—in the former, because they were “wards,” and in the latter, because they were “not taxed.”Footnote ⁶⁹ For the same reason, Cohen threw his considerable energy into the public assistance battle. (Cohen's writings suggest that he was aware of the problem as early as February of 1948, when he bitterly denounced his former agency before a meeting of the Indian Rights Association, but it is unclear how he learned of it. One likely source is his former Interior Department colleague James Curry, then general counsel to the NCAI.) In the words of Cherokee politician and celebrity Will Rogers, Jr., an NCAI ally, the Indians in the Southwest were suffering “Starvation without Representation,” a condition that ought to offend all Americans.Footnote ⁷⁰

While Rogers and other Indian advocates attempted to arouse public sympathy, Cohen worked the back channels of the federal bureaucracy. On July 7, 1948, he took the unusual step of inserting himself into the ongoing negotiations between the Social Security Board and the states. On behalf of the NCAI, the All-Pueblo Council, the Jicarilla Apache Tribe, and the San Carlos Apache Tribe, Cohen and NCAI General Counsel James Curry petitioned the Board for a hearing to determine whether Arizona and New Mexico were in conformity with the Social Security Act. (The Navajo Tribal Council, despite assisting the NCAI in its investigation, was notably absent from the petition, perhaps because the tribe had recently hired its own attorney, former Assistant Attorney General Norman Littell.) Formal hearings themselves were rare, a last step before the Board applied the harsh sanction of complete defunding. More rare still was an attempt by an outside party—Cohen and Curry styled themselves as amici curiae—to influence the Board's decision making.Footnote ⁷¹

Cohen's next step was his most novel: when the hearing mysteriously disappeared from the Board's calendar (soon after the “Dixiecrat” revolt within the Democratic Party, and mere months, Cohen noted, before the contentious 1948 elections), Cohen went from “friend” of the agency to adversary. On September 21, 1948, Cohen, Curry, and Arizona attorney Royal D. Marks filed Mapatis v. Ewing in federal court, alleging that federal officials had deprived eight Pueblo and Hualapai plaintiffs and others like them of their civil rights. One of the plaintiffs was blind; another was the mother of six children; the rest were elderly. All were in need. They claimed that through “misrepresentations, misappropriations . . . of public funds, and interference with the normal administrative procedures” of the Social Security Board, high-ranking officials had conspired with Arizona and New Mexico to deprive reservation Indians of the equal protection of the law. The object of the alleged conspiracy was political power: By preventing the Board from taking action against the states, the defendants hoped to assure a Democratic victory that fall.Footnote ⁷²

Poor Indians paid the price, according to the complaint. An estimated 802 Indians in New Mexico and 922 in Arizona were eligible for public assistance, but “no known Indian” in New Mexico and only 3 in Arizona had ever received benefits; the Arizona payments were terminated upon discovery of the recipients' Indian blood. As a result, more than 82 Indians in New Mexico and Arizona had died of starvation or malnutrition over the past 5 years. The plaintiffs themselves were “in dire distress;” however, state officials either denied or refused to act upon their applications. The plaintiffs asked the court to stop the defendants from obstructing the Board's promised conformity hearing. In short, they recognized that in this era of “new federalism,” grant-making federal agencies held the real power and must be forced to wield it.Footnote ⁷³

The complaint foreshadowed some of the arguments that “poverty lawyers” would raise before federal courts in the 1960s and 1970s, when they sought to expose the discriminatory nature and calamitous consequences of restrictive state welfare policies. The legal arguments also mirrored those that Social Security Board lawyers had long asserted in internal correspondence. Ironically, these same lawyers were now charged with making the lawsuit disappear.Footnote ⁷⁴

Disappear it did, but not for lack of merit. In early 1949, as the Navajos endured a winter of unprecedented severity and the Red Cross airlifted supplies onto the reservation, the Board failed in its efforts to get the suit dismissed. At approximately the same time, the Board finally held formal hearings to determine whether it could legally issue federal funds to the two states that continued to deny public assistance payments to Indians.Footnote ⁷⁵

Cohen and Curry were by then in a bitter interpersonal feud, but managed to file the amicus briefs that the Board invited them to submit. The invitation in itself was unprecedented: it suggested federal administrators' sympathies, but even more important, it illustrated the spaces that grant-administering federal agencies opened up to enterprising activists. Citing the Supreme Court's recent civil rights decisions, the lawyers argued that the states had no more right to deny Indians' welfare claims than to deny them the vote. (Arizona and New Mexico had retreated from their opposition to Indian suffrage only a year earlier, by order of state courts.) The plaintiffs resided on reservations, but they were also “full citizens and residents” of their states, with all the corresponding entitlements.Footnote ⁷⁶

At this point, cracks in the states' united front became apparent. During the hearings, New Mexico officials defended their actions but also acknowledged “social and humanitarian” concerns. The chair of New Mexico's Department of Welfare, Ruth Falkenburg Kirk, had personally publicized the Navajos' plight and, in private correspondence, suggested that she would have supported the NCAI campaign had the Governor not “told [her] to lay off.” Outside the hearing, New Mexico officials assured the Board that they “want[ed] to do the right thing for Indians”; the “problem” was simply “too big for [the] state.”Footnote ⁷⁷

Arizona officials conceded nothing and fought fiercely, an outgrowth, perhaps, of the racism that continued to organize everyday life in the state, or perhaps a reprise of the state's recent battle with federal authority over the Colorado River. (In 1934, outraged by the unfavorable terms of the Colorado River Compact, state officials had forcibly obstructed the construction of the Parker Dam.)Footnote ⁷⁸ Before the Social Security Board, Arizona's Commissioner of Public Welfare, Harry Hill, characterized Indians as undeserving, and the federal government as overbearing. Arizonans' generosity could hardly be expected to extend to “a class of people who have contributed nothing . . . to the welfare of the state or its progress,” Hill insisted. The state's resistance to the Board's questionable legal interpretation was also entirely natural, Hill explained. Time and again, the federal government “dangl[ed]” money before the state, exploiting its “helplessness” to usurp state power. If the federal agency won Indians' inclusion, “further encroachments” were “only a matter of time.” Back home, Arizona officials primed the public for a fight, and made explicit the racial undercurrents of their argument, warning that federal government sanctions would halve the funds available to “white residents.”Footnote ⁷⁹

The Santa Fe Agreement and States' Grab for Jurisdiction

For all their bluster, by February 1949, Arizona and New Mexico were prepared to compromise. Three developments impelled their retreat. First, the Social Security Board had disclosed its lack of sympathy for the states' position. As Hill complained to a local newspaper, federal administrators functioned as “judge, jury and prosecution” in this proceeding.Footnote ⁸⁰ Second, the showdown with the Board had attracted broader attention to the two states' complete avoidance, over the past dozen years, of fiscal obligations that other states had shouldered. Senators Arthur Watkins (R., Utah) and John Chandler Gurney (R., South Dakota), both members of the powerful Senate Appropriations Committee, specifically noted this discrepancy in the public record.Footnote ⁸¹ Third, Congress had honored President Truman's promise and taken up the Navajo-Hopi Rehabilitation Act, a bill devoted to raising standards of living and building “self-reliant communities” on the Navajo and Hopi reservations. The Act would funnel $90,000,000 toward the states' poorest tribes, and presumably alleviate the need for state-administered public assistance.Footnote ⁸²

In late April, as the Navajo-Hopi Rehabilitation legislation moved through Congress, state officials met with representatives from the Social Security Board in Santa Fe. There, they formally agreed to treat Indian public assistance applications the same as all others and to spend their own funds on Indian claims. The BIA, with money from a special Congressional appropriation, agreed to pay two thirds of every Indian's determined need; the remaining third would be paid like any other claim, through a combination of state funds and federal “matching” funds. In total, nonstate sources would provide 90 percent.Footnote ⁸³

The “Santa Fe Agreement,” as it became known, did not satisfy some Indians. Just months earlier, David Johnson, Sr. had informed the NCAI that his people, the Pima-Maricopa Indians, did “not want to be handled separately or even set apart in [a] separate class.” Remembering, perhaps, decades of struggles over federal treaty agreements, he invoked the original Social Security Act, and insisted that his people receive equal treatment under the existing law. But Felix Cohen (and, presumably, his clients) saw the agreement as a victory. As soon as the states began to cut benefit checks, he asked the court to dismiss the Mapatis case. As he explained to Roger Baldwin, Director of the American Civil Liberties Union (ACLU) and an ally in the voting rights cases, the litigation had achieved its goals: it forced politicians to cease interfering in the federal agency's enforcement work and thereby promoted Indian civil rights.Footnote ⁸⁴

This settlement merits historians' attention. State and local officials have traditionally been eager to control welfare programs, especially when racial hierarchies and related economic interests were at stake. Arizona and New Mexico diverged from this pattern, in ways that provoke fresh insights into the relationship between welfare, sovereignty, and citizenship in American history. Local labor needs, of course, offer a possible explanation: if employers were not hungry for Indian labor, the appetite for welfare administration—that is, for controlling an obvious alternative to wage work—might have been similarly diminished. However, when the economy rebounded during and after World War II, local employers did look toward reservations for low-wage workers and would have appreciated the ability to attract this labor pool. (This was especially true after the discovery of uranium on the Navajo reservation.)Footnote ⁸⁵ Money is a second obvious factor, and clearly it mattered, but in light of pre-existing federal subsidies, the amount of state money at stake was relatively small. Even without the generous Santa Fe Agreement, the annual cost to each state of paying public assistance to reservation Indians would have been less than $200,000, whereas the cost of losing their federal grants would have been several million.Footnote ⁸⁶

The main concern, this episode suggests, resulted from a combination of demographics (the relatively large Indian populations in these two states), land ownership, political theory, and long-standing assumptions about cultural and racial difference. Specifically, it was about the terms of Indians' inclusion in the political community. Although state officials were happy to count reservation Indians as “theirs” for purposes of legislative apportionment, they found it difficult to imagine giving Indians the benefits of citizenship while lacking the power to enforce its burdens on Indian bodies and reservation land.Footnote ⁸⁷ This logic is clear from state officials' arguments before the Social Security Board. It is also apparent from the timing of a proposed amendment to the Navajo-Hopi rehabilitation legislation that was then working its way through Congress.

In May 1949, not 2 weeks after the Santa Fe Agreement, New Mexico Congressmen Antonio M. Fernández appeared before the House Subcommittee on Indian Affairs. He suggested adding a final section declaring that Navajo and Hopi Indians were subject to “all of the laws” in the state in which they resided. He alluded to crime control and informal marriage customs on the Navajo reservation, but he emphasized Congress's desire “to make the Indians self-supporting and into good individual American citizens.” “I do not think that we are going to get very far,” he warned, “unless they are sooner or later made subject to the laws of the State.” The proposal may have derived from Fernández's own, immigrant-oriented conception of citizenship: prior to running for Congress, he had served as president of the famously assimilatory League of United Latin American Citizens (LULAC).Footnote ⁸⁸ But the proposal also fit with Western politicians' long history of using jurisdiction to capture reservation resources, human and otherwise. In this case, one local newspaper reported, the chief concerns were “protect[ing] ballot boxes, supervis[ing] elections, and . . . guard[ing] the State Social Security checks from forgery and altering”—in other words, constraining the exercise of Indians' new citizenship rights. As passed by the House, the Fernández amendment also included a provision requiring that reservation schools follow state curricula.Footnote ⁸⁹

The final bill, sent to the President in October, included Fernández's amendment—now Section 9 of the bill—and one other revealing addition. The House and Senate conferees added to Section 9 a rider that memorialized the Santa Fe Agreement, but named the Social Security Board, rather than the unreliable BIA, as the source of the additional federal funds: When Arizona or New Mexico processed a claim from a reservation Indian, the rider provided, the Board would “match” the state payments at a higher than usual rate. (The formula was complicated, but in one example the Board would pay $46 of a $50 welfare payment, or 92 percent). Therefore, in the final version of the proposed law, the extension of state jurisdiction and the states' acceptance of public welfare obligations were rolled together into an implicit quid pro quo, with ironclad assurances of federal financial support.Footnote ⁹⁰

Ultimately, Section 9's jurisdictional grab doomed the Act. Although the Navajo Tribal Council voted to support it, tribal leaders quickly changed their minds. In the press, former Commissioner of Indian Affairs John Collier loudly denounced the “sinister riders.” The ACLU, NCAI, and others joined him in urging President Truman to veto the bill. Truman obliged. He agreed that state jurisdiction was the “logical consequence of our policy” (that is, the policy of termination and assimilation), but that such jurisdiction must be accepted voluntarily, and “in the orderly course of social and economic integration.”Footnote ⁹¹

By the end of 1949, then, a combination of Indian activism, creative and ambitious lawyering, and federal agency sympathy had forced Arizona and New Mexico to give reservation Indians a crucial marker of citizenship: state-administered public assistance. In return, these states demanded that the federal government assume the vast majority of the cost (giving them a better deal, effectively, than their peers). State politicians fell short, however, in their efforts to obtain the legal powers—the jurisdiction—that normally accompanied such responsibility.

Arizona v. Hobby: States' Rights and Sovereign Immunity

Even with these disappointments, Arizona and New Mexico fared better in 1949 than they might have. Liberal enthusiasm for Indian rights was high. Senator Hubert Humphrey, NAACP director Walter White, labor leader Walter Reuther, and former First Lady Eleanor Roosevelt all spoke up for equal treatment of Indians. Roosevelt specifically mentioned the issue in Mapatis, adding that she was “ashamed” by the lack of “decency and justice” afforded to “the first citizens of this country.” State officials did well by protecting their coffers and living to fight another day.Footnote ⁹²

They did not have to wait long. In 1950, Congress amended the Social Security Act to include a new category of public assistance: Aid to the Permanently and Totally Disabled (APTD). As with the Act's original programs, states that wanted the generous federal subsidy submitted “plans” to the federal agency, which the agency checked against federal requirements and, if appropriate, approved.Footnote ⁹³

New Mexico had by this point accepted its responsibility for reservation Indians, perhaps because in the most recent fiscal year, 1950–51, it had spent a mere $41,335 in state funds on Indian public assistance payments. But some Arizona officials, especially members of the state's upstart Republican Party, were eager to reopen the “Indian question.” Following the 1948 confrontation with the Social Security Board, Arizona had almost immediately encountered similar pressure from the United States Children's Bureau over discrimination against Indians in its federally subsidized program for crippled children. State officials had also skirmished with federal administrators over the terms of the Santa Fe Agreement. (Arizona had attempted to back out the following year, when Congress finally enacted a Navajo and Hopi Rehabilitation Act.) “We are shocked,” declared Arizona Governor Howard Pyle in 1951, after receiving another defunding threat from the Social Security Board, by “how completely we are subject to the whims of the Federal Government.” To Pyle, at least, prevailing on the “Indian question” had become inextricably linked to the health and sovereignty of his state. (Rumblings from other Governors suggested that many agreed: Ohio Governor Frank J. Lausche made “[t]he dangers inherent in grants-in-aid” a theme of his opening address to that year's Governors' Conference.”)Footnote ⁹⁴

Submitting an APTD plan that blatantly excluded Indians was an easy way to bring the matter to a head. In the spring of 1952, following the Arizona legislature's lead, the state agency sought federal participation in a plan that denied assistance “to any person of Indian blood while living on a federal Indian reservation.” Federal administrators promptly disapproved, and Arizona filed suit in federal court (Arizona v. Hobby). Finally, Arizona officials hoped that a court of law would curb the federal agency's authority. (For the NCAI, meanwhile, the case was a “godsend”; an opportunity for a court to declare Indians “first class citizens . . . entitled to equal rights.”)Footnote ⁹⁵

Appearing before the District Court to argue against the federal government's motion to dismiss the case, Arizona lawyer Kent Blake emphasized the state's solicitude for Indians living in “regular communities.” Its problem was with reservation Indians, not because of race, but because they “enjoyed” a “peculiar and privileged status.” The federal government maintained them on lands held in trust, provided them hospitals and schools, and shielded them from the reach of state law. The Supreme Court itself had characterized them as “wards” of the federal government. Reservation Indians could be federal wards or state citizens, Blake implied, but not both. More to the point, federal administrators had no right to disapprove Arizona's plan. Once a plan satisfied the terms of the law—which Blake insisted Arizona's had—their only function was to open the cash drawer.Footnote ⁹⁶

Assistant United States Attorney Ross O'Donoghue, joined by two longtime Social Security Board lawyers, maintained that Arizona's plan did not meet the statutory requirements. Invoking (at long last) the agency lawyers' earliest response to the “Indian Question,” O'Donoghue also raised the issue of the Fourteenth Amendment. The state's plan favored Arizonans without Indian blood and Arizonans not living on reservations, O'Donoghue noted; neither grouping had a “proper” relationship to the goal of meeting the needs of the disabled.Footnote ⁹⁷

Felix Cohen appeared last, on behalf of amici curiae the Hualapai Tribe, the San Carlos Apache Tribe, and the Association on American Indian Affairs (a liberal, New York-based group of philanthropists and anthropologists). Cohen remained a thorn in Arizona's side, but much else had changed in the intervening years. For one, he had been the target of a hard-fought campaign by the new Indian Affairs Commissioner (and former director of the Japanese American internment camps), Dillon S. Myer. Shortly after taking office, Myer announced new regulations on tribes' choice of legal counsel. The stated concern was self-dealing by lawyers such as Cohen and Curry, but critics perceived a desire to quash civil rights activism and control tribes' use of the Indian Claims Commission. (Critics also hinted at the influence of certain Democratic congressmen, “annoyed” at Cohen and Curry over the Republican gains that their Indian voting cases produced.) With help from the American Bar Association, the NCAI, and other allies, the accused attorneys defeated these regulations, but the fight was long and bitter.Footnote ⁹⁸

A second and related development since Cohen's earlier skirmish with Arizona was the Truman Administration's increasingly aggressive campaign to encourage Indian assimilation by terminating the services and legal arrangements that ostensibly stood in their way. Termination policies, Kenneth Philp has shown, had broad appeal: they “reflected the conservative and nationalist mood of the Cold War era” and “resonated with the ideologies of individualism and capitalism.” But in the early 1950s, termination took a turn that disturbed many Indians and their advocates. As Myer tightened the BIA's grip on tribes, Congress considered proposals to give states civil and criminal jurisdiction in Indian Country without tribal consent. This inflamed Cohen: some tribes had reason to welcome state jurisdiction, but he had witnessed the prejudices that Indians encountered at the state and local level. In Arizona, he predicted, Indians could anticipate “raids” on their property, businesses, hospitals, and schools should the federal government withdraw its protection.Footnote ⁹⁹

Cohen's argument in Arizona v. Hobby was, therefore, all the more striking, for in that case he argued passionately for Indians' ability to participate in state-run programs. Again, he invoked the constitutional principle of equal protection. Appearing before the District Court on February 20, 1953, he painted a picture of Indian and white citizens living side by side, as did some residents of the Hualapai reservation. Could one receive public aid and the other be denied? If the case involved “Negroes,” Cohen noted, invoking recent NAACP victories (and inviting an analogy that has long troubled federal Indian law), the answer would surely be “no.” As for Indians' unique relationship with the federal government—which he vigorously defended elsewhere—Cohen denied its relevance. This case was about whether Arizona could establish a program “excluding from its scope, say, Republicans, Catholics, or Jews, or Democrats,” and then demand that the federal government fund the lion's share of the cost.Footnote ¹⁰⁰

The Indian perspective fit less neatly into legal boxes. For one thing, even though Indians in the Southwest regularly contrasted themselves with “white people,” it was not clear that they wanted to be portrayed as just another racial minority, or a Western analog to black Americans in the Deep South. As scholars have since observed, the racialization of the Indian has gone hand in hand with the legal evisceration of sovereignty.Footnote ¹⁰¹ But Cohen accurately represented some Indian concerns. In late 1951, when tribal leaders publicly addressed their exclusion from the state's APTD program, they explained that they prized their hard-won state citizenship and its benefits, even as they feared the anti-Indian sentiment of some Arizona officials. Hopi Samuel Shing put it this way: “We don't want to change from the wardship of the federal government to become wards of the state. We want the same rights as other citizens of Arizona.” To state officials' demands that in exchange for these rights, Indians give up their “peculiar and privileged status,” such as exemption from state laws and levies, Indians responded with their own understandings of citizenship. Clarence Wesley, chairman of the San Carlos Apache Tribal Council, submitted this retort to the Arizona Republic: “We paid taxes for 2,000 years in advance. . . . When we are paid a fair price for that land that was taken, we will be happy to consider paying taxes just like our white fellow-citizens.”Footnote ¹⁰²

Judge Henry Schweinhaut never heard these Indian voices, but he nonetheless rejected Arizona's position. Cohen failed to persuade Schweinhaut, the former head of the Department of Justice's Civil Rights Section, that Arizona intended to discriminate on the basis of race. However, Schweinhaut found the Social Security Board justified in disapproving the state's plan. Arizona had assumed, perhaps understandably, that the federal government owed the Indians more than Arizona did, but Arizona had also accepted a federal grant, and as Judge Schweinhaut saw it, that federal “gratuity” depended upon the state granting a similar “gratuity” to its own citizens, including Indians. In his view, the Social Security Board “could not, constitutionally, or under the terms of the statute, itself” approve a plan such as Arizona's.Footnote ¹⁰³

Had Arizona not appealed this unfavorable decision, it might have preserved a small victory for those who shared its interests. The trial court accepted without question its right to adjudicate the dispute, thereby creating a precedent for other states to challenge federal agency decisions. Arizona was hardly alone in resenting the federal welfare bureaucracy, but Arizona refused to let Judge Schweinhaut have the last word, and ultimately an appellate court vacated his decision on grounds that were decidedly unfavorable to the state. “[T]he purpose of this suit,” D.C. Circuit Judge David Bazelon explained, “is ‘to reach money which the government owns,’” and as the federal government—the “sovereign” in this context—had not consented to being sued, the case must be dismissed.Footnote ¹⁰⁴ For a suit intended to vindicate state sovereignty, it was a disappointing end. On paper at least, Arizona was now formally required to give Indians the material benefits of citizenship (i.e., not only political rights, but also affirmative rights to government support), whereas its coercive and regulatory powers on Indian land remained tightly constrained.Footnote ¹⁰⁵