15 days

REVIEW AND ACTION BY COMMISSIONER (401.25 and 401.26)

Comm. agrees

to contract

401.26 Appeals of Commissioner's decision to decline (p.38)

The tribal governing body shall have 60 days to appeal to the Board of Indian Appeals, Department of Interior, Washington, D.C., the decision by the Commissioner to decline to contract.... (* Deleted: "tribal organization and/or the".)

401.32 Contractable functions or programs (p.39)

(b) Soil and moisture conservation: basic soil and water conservation, watershed protection, flood prevention, cooperative surveys and investigations, and resource conservation and development. * (* Deleted: "Provided, That lease and permit

management and monitoring shall be conducted in accordance with prior accepted local procedures and accepted principles of good husbandry.")

Comment: The suggested deletion is based on objections to the imposition of state, county and other non-tribal "prior accepted local procedures" upon tribal resource protection and conservation programs. In areas ranging from coal development to wild rice cultivation, tribal standards have proven superior to existing local practices. In addition to the vagueness of "accepted principles of good husbandry," the phrase does not appear to apply if "husbandry," as defined in Webster's, means "careful, thrifty management" or "farming."

(c) Irrigation: development, construction, record-keeping, rehabilitation, operations and maintenance. * (* Deleted: "Provided, That when operations and maintenance activities are contracted such contracts will not adversely affect services provided by the system, and each such contract contains prescribed guidelines and specific standards for services to be performed under said contract.") Comment: While it is agreed that no tribal contract should produce a lower quality of services than is presently being delivered to the tribes, no adequate reason could be found for this generally understood principle's application to irrigation alone and not applied, for example, to hospitals, schools and other

areas.

(d) Real estate: land use planning and zoning, maintenance of land records,

preparation of abstracts of title, research programs to determine heirship and inventory of estates, collection of technical data and studies to be used in determinations of tribal claims to real property, collection of data leading to ascertain ment of surface and subsurface resources, administration of leases. Advice and technical assistance provided individual landowners in connection with lease negotiations initially will be made concurrently by a contractor and an appropriately designated Federal official.* (* Deleted: "Depending upon Indian community

reaction to tribal involvement in this area, contracts subsequently may be modified to increase tribal participation progressively.")

Comment.: The deletion is suggested in light of past agency inefficiency in this crucial area where direct and immediate, not progressive, tribal involvement is both desirable and necessary. This regulation regarding real estate is inconsistent with the following regulation for forestry wherein the Bureau is willing to trust contractable forest areas to tribal control, but unwilling to contract tribal technical assistance for lease negotiations without concurrent review by a federal official.

(e) Forestry: forest management and planning, including the making of inventories, management plans and maintenance, tribal or individual Indian consultation services, administration of timber sales and Indian permit cutting, conduct of timber stand improvement projects, protection of the forest against wildfire, trespass, disease, or insect infestation, and participation in cooperative programs with other Federal, State, or tribal organizations related to programs of the Bureau.... (* Deleted:

"similar")

(h) Water inventories and other appropriate programs for protection of water

rights.

Comment: Addition suggested to allow for such contracted programs as those concerning water quality improvement, water distribution, water facilities construction, etc.

(1) Hunting and fishing: programs to regulate and enforce * on- and off

reservation hunting and fishing, and programs to provide data supporting litigation concerning hunting and fishing issues. (* Regulation reads:

"...programs

to implement court decisions affecting on- and off-reservation hunting and fishing rights and programs to provide biological data supporting litigation concerning hunting and fishing issues.")

Comment: It is suggested that this regulation provide for enforcement programs for the protection and regulation of all hunting and fishing concerns, which would include the implementation of court decisions. It is also suggested that data collection not be limited to biological information for future litigation that may require supportive facts from other areas.

401.33 Content of application (p.41)

(2) Income to individuals and tribe.* (* It is recommended that the following language, which appears in the regulations under (2), appear as a separate statement as part (3) with no change in wording.)

(3) The statement must also demonstrate a thorough assessment of the trust resources issues, positive steps to protect the trust resources, provisions that limit or eliminate potential for conflicts-of-interests, and that no delegation of trust responsibility is requested.

401.34 Criteria for declining to contract (p.42)

If a contract application includes a project or function which is related to the Bureau's performance of a trust responsibility in the area of natural resources as given in 401.32, the Commissioner shall decline to contract if he finds that: (a) The contract application would result in the abrogation of the review and approval authority related to trust resources * vested by law in the Secretary or the Commissioner. (* Regulation reads: "The contract application provides for. or would necessarily require the delegation to the tribal organization of a trust responsibility vested by law in the Secretary or the Commissioner.")

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