JACK C. JACKSON, JR., DIRECTOR OF GOVERNMENTAL AFFAIRS

NATIONAL CONGRESS OF AMERICAN INDIANS

STATEMENT ON THE IMPORTANCE OF AN ACCURATE CENSUS TO

AMERICAN INDIANS AND ALASKA NATIVES

BEFORE THE U.S. COMMISSION ON CIVIL RIGHTS

WASHINGTON, D.C.

FEBRUARY 12, 1999

I. INTRODUCTION

Greetings Chairman Berry, Vice Chairman Reynoso and distinguished members of the U.S. Commission on Civil Rights. On behalf of W. Ron Allen, President of the National Congress of American Indians (NCAI) and Chairman of the Jamestown S'Klallam Tribe located in Washington State, and JoAnn K. Chase, Executive Director of the National Congress of American Indians, I would like to thank you for the opportunity to discuss the importance of an accurate census to American Indians and Alaska Natives from a civil rights perspective. My name is Jack C. Jackson, Jr. I am Director of Governmental Affairs for the National Congress of American Indians, the oldest, largest and most representative Indian organization in the nation. NCAI was organized in 1944 in response to termination and assimilation policies promulgated by the federal government which proved to be devastating to Indian Nations and Indian people throughout the country. NCAI remains dedicated to advocating on behalf of the interests of our 250 member Tribes on a myriad of issues including the efforts to improve participation in and the accuracy of the census count for the American Indian and Alaska Native population.

II. FUNDAMENTAL FEDERAL INDIAN LAW AND POLICY

Any discussion of federal Indian policy must be grounded in fundamental principles which inform federal Indian law and policy. Since the earliest days of our republic, Indian Tribes have been considered sovereign, albeit domestic, nations with separate legal and political existence. Along with states and the federal government, Tribal governments represent one of three enumerated sovereign entities mentioned in the U.S. Constitution. As a result of constitutional mandate, hundreds of duly-ratified treaties, a plethora of

federal statutes, and dozens of Supreme Court cases, it is settled that Indian Tribes have a unique legal and political relationship with the United States. This relationship is grounded in the political, government-to-government relationship and is not race-based. ⁽¹⁾

The power of an Indian Tribe to determine questions of its own membership derives from the character of an Indian Tribe as a distinct political entity. The courts have consistently recognized that one of an Indian Tribe's most basic powers is the authority to determine questions of its own membership.⁽²⁾

The term "Indian" may be used in an ethnological or in a legal sense. If a person is three-fourths Caucasian and one-fourth Indian, that person would ordinarily not be considered an Indian for ethnological purposes.⁽³⁾ Yet legally, such a person may be an Indian. Racial composition is not always dispositive in determining who are Indians for the purposes of Indian law. In dealing with Indians, the federal government is dealing with members of political entities, that is, Indian Tribes, not with persons of a particular race.⁽⁴⁾ Tribal membership as determined by the Indian Tribe or community itself is often an essential element.

In return for vast Indian lands and resources ceded to the United States, the federal government made certain promises to Indian Tribes including the protection of Indian lands from encroachment, as well as promises to provide in perpetuity various goods and services such as health care, education, housing, and the continued right to self-government. In addition to inherent sovereignty, Tribes benefit from the federal government's "trust responsibility" to them. This responsibility eludes simple definition but is grounded in the oversight and trusteeship of Indian lands and resources by the United States. Using analogous common law principles of trusteeship, the trust responsibility has been determined by federal courts to be similar to the highest fiduciary duty owed a beneficiary by a trustee.

III. THE CENSUS AND AMERICAN INDIANS AND ALASKA NATIVES

The decennial census is a critical national activity affecting NCAI member Tribes. On November 21, 1997, NCAI member Tribes strongly recommended by Resolution #SFE-97-081 (attached) that the Census Bureau make every effort to conduct an accurate count of the American Indian and Alaska Native population in the census and that adequate funding be allocated to provide correct state- of-the-art maps, hire local people, and provide training and funds to establish partnerships with Indian Tribes. Subsequently, on October 23, 1998, NCAI member Tribes fully endorsed by Resolution #MRD-98-095 (attached) the Year 2000 Decennial Census and encourages its members to support public cooperation with this census by undertaking various employment, promotion, and outreach projects in conjunction with their local government leaders and the Census Bureau. NCAI also resolved to work with the Congress and Administration to ensure that census information remain confidential and will not be used against Tribes, including such purposes as means testing.

American Indians and Alaska Natives have a significant stake in the outcome of the 2000 census. Opportunities for gainful employment are scarce on many reservations, resulting in unacceptably high rates of unemployment or under- employment. Substandard housing is still prevalent in many areas, leading to overcrowded and therefore unhealthy living conditions. Many reservations are unable to offer challenging educational environments that are the key to realizing a higher standard of living and a better quality of life for our people. These barriers to economic advancement and social fulfillment have affected the health of many Indians, leading to increased rates of alcoholism and family violence in some areas.

The census is a fundamental tool in the continuing struggle of Indian Tribes to improve economic opportunities and living conditions on reservations. As I stated earlier, the federal government bears certain responsibilities for the health and welfare of Indian people. A range of programs now exists to help Tribes address and overcome barriers to economic advancement and self-sufficiency. A significant portion of this federal aid is based on the information collected in the census. Federal programs that distribute aid to American Indians and Alaska Natives based in whole or in part on census data include the Job Training Partnership Act, Grants to Local Education Agencies for Indian Education, Special Programs for the Aging, and Family Violence Prevention and Services.

Equally important, the census provides a portrait of American Indians and Alaska Natives that is critical to assessing the well-being of our people and understanding the challenges that lie ahead. Indian Tribes are fiercely protective of their members and strive continuously to improve the quality of life for their people. We recognize that accurate data about labor force participation, educational attainment, housing conditions, income levels, and family structures are essential to achieve this goal. It is the census that provides this detailed portrait of our communities and sets the guideposts by which to measure our progress.

Yet, given the constitutional mandate for a census, it is perhaps of paramount importance that the census forms the very foundation of America's representative system of governance. The unique "trust" relationship between American Indians and the Federal government means that we must take our right to vote and our right to equal representation very seriously. We treasure those rights, as all Americans do, but we also understand that equal representation is a hollow promise unless everyone is represented fairly and accurately in the census.

It should come as no surprise, then, that American Indians and Alaska Natives are deeply concerned about the accuracy of the 2000 census. As the members of this Commission know, the 1990 census was the first to be less accurate than the one before it. The accuracy of the 1990 census also varied greatly among population subgroups. Continuing a disturbing trend that the Census Bureau first identified with scientific measurements in 1940, people of color and poor people in urban and rural areas were missed at much higher rates than Whites. The undercount of American Indians and Alaska Natives in 1990 was the most disproportionate of all.

According to the post-enumeration survey conducted as part of the 1990 census, the net national undercount was 1.6 percent. By comparison, about 4.5 percent of all Indians (nearly 175,000 people) were not counted. Most alarming, the census missed 12.2 percent of Indians living on reservations. Like all children, Indian children also were missed at a higher rate than the population as a whole; 6.2 percent were left out of the census. And young Indian males (age 18 - 29), like their peers in other non-white population subgroups, were more likely to be missed; 6.4 percent were not counted.

American Indians and Alaska Natives will not settle for a similar outcome in 2000. Throughout this decade, the National Congress of American Indians has supported the Census Bureau's efforts to increase accuracy at a reasonable cost by simplifying census procedures and operations, and forming earlier and more-extensive partnerships with Tribal and local officials and community-based organizations. We have been proud to serve on the Secretary of Commerce's 2000 Census Advisory Committee, which gave us an invaluable opportunity to provide guidance on the best methods for obtaining an accurate count of our people. Just two weeks ago, we participated in a hearing of the House Subcommittee on the Census in Phoenix, Arizona, and recommended several ways to improve the census process that we hope will encourage greater participation among our people. Our suggestions addressed important operational issues such as the Tribal Government Liaison Program, compilation of address lists and maps, recruitment and hiring of Indian people as census employees, and development of culturally-sensitive promotional materials.

Madam Chair, we believe that our continued partnership with the Census Bureau through the final stages of preparation and conduct of the actual count will improve the count of American Indians and Alaska Natives in the 2000 census. At the same time, we recognize that the barriers to an accurate count on Indian reservations are often pervasive and difficult to overcome, no matter how well intentioned the effort. We are not willing to start the next century with an incomplete portrait of our people and their homelands - - a portrait that might exclude nearly one out of every eight Indians residing on our diverse Tribal lands.

That is why many Tribes have come to share the belief of almost all knowledgeable scientific experts and independent evaluators such as the U.S. General Accounting Office, that the census must change because our country is changing. It is a daunting task to locate and count 270 million people with extraordinarily diverse economic, cultural, and social backgrounds, in equally diverse geographic environments and family settings. Intense preparation and counting efforts are critical components of the census, regardless of whether

sampling techniques are part of the design. Therefore, NCAI and the Tribes we represent will do everything possible to assist the Census Bureau in compiling a high-quality address list, preparing and distributing appropriate educational and promotion materials, and identifying qualified Tribal members to serve as crew leaders, enumerators and outreach specialists. But even a massive, coordinated counting effort will inevitably miss millions of people, far too many to ignore. We must build promising new methods into the traditional process in order to give life to these invisible people.

Therefore, we will continue to urge the Congress to support the Census Bureau's plan for a census that uses sampling and other statistical methods to improve the accuracy of a direct counting effort. We are fully aware of the Supreme Court ruling late last month, finding that the law prohibits sampling to calculate the state population totals used for congressional apportionment. But we are heartened by the Court's recognition that the law does not

prohibit, and may require, the use of sampling methods to produce data that can be used for other purposes, such as the allocation of Federal aid.

It is the second planned use of sampling in the Bureau's original 2000 census plan - the Integrated Coverage Measurement program - that is designed to eliminate the persistent and highly disproportionate undercount of minorities and the poor. This statistical program was planned for communities of every kind, including on Indian reservations. We believe it represents the only real hope for avoiding the unacceptably high undercount of American Indians and Alaska Natives that occurred in 1990. We believe that Congress must consult with the Census Bureau immediately to determine the feasibility of adjusting the initial census numbers for any undercounts and overcounts. Then Congress and the Administration must ensure that the Bureau has the fiscal and personnel resources it needs to get the job done.

The 1990 census demonstrated that direct counting methods alone will not result in an accurate count of American Indians and Alaska Natives. It would be foolish to assume that throwing more money toward the same failed techniques will yield a better outcome in 2000. We have the tools to conduct a census that is more inclusive, a census that counts and accounts for all Americans. If we ignore the promise these scientific methods offer, then we will have failed intentionally to address one of the most persistent and pernicious inequalities in our democracy. A nation that stands on the principle of individual rights must not countenance such a result.

IV. CONCLUSION

Madam Chair, thank you again for this opportunity to present our views in connection with this vital issue. In conclusion, it is our position that the Census Bureau must be allowed to prepare for and execute the best census it can, based on the professional judgment and experience of its knowledgeable, nonpartisan staff. Given the unique character of Indian Tribes, the Bureau must consult and coordinate with Tribal governments who can provide substantial guidance on the best methods for taking the census on their reservations. At the same time, Congress must recognize that direct counting methods alone are no longer sufficient to provide a complete count of all segments of the population, and that scientific tools have the capacity to produce a fairer outcome. Anything less will have far-reaching negative legal, financial, and statistical implications for the American Indian and Alaska Native population. I again thank you for the opportunity to appear before you today and would be happy to answer any questions you may have.

1. See Morton v. Mancari, 417 U.S. 535 (1974).

2. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

3. See J. Reid, A Law of Blood 189-90 (New York: New York University Press, 1970).

4. See United States v. Antelope, 430 U.S. 641 (1977); Morton v. Mancari, 417 U.S. 535 (1974).