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Mr. PARKER. We had suggested an alternative definition which would include language to the effect that the Bureau's trust responsibility, including ideas like supporting and preserving the right of tribal self-government and being charged with an advocatory responsibility to check those resources.
But the point I was making is that upon reconsideration, we feel that this narrow technical definition offered in regulations is acceptable if it is understood that it is only for the purpose of indicating that core trust responsibility which cannot be contracted by the Bureau without abrogation of its trust role.
If this definition restricts the Bureau to a very core set of functions, this will provide greater flexibility as far as tribes are concerned and any plans they may have for contract functions which border on the trust role as far as the development of natural resource potential. If we have a broadly phrased definition, it could be interpreted by the administration to prohibit contracts which might otherwise be very beneficial to the tribes.
Sections 401.18 through 401.21 deal with the role of the tribal council in reviewing and approving applications by tribal organizations. The point we wish to make here is that the regulations spell out that the tribal council has a review and more or less veto power over contract applications by tribal organizations which are in some way or another separately constituted from the tribal government themselves.
We feel that the provision which would allow for a tribal government body to exercise the veto power over these kinds of contracts, contracts by tribal organizations which are not part of the tribal governments themselves, is a necessary part of the regulations and we would oppose any change in the regulation which would in some way or another provide for contracting by tribal organizations completely outside the scope of the review and approval authority of the tribal council.
Section 401.74, the section on reassumption, in general this provision provides that the administration or Bureau of Indian Affairs can reassume services where the contractor has, in the performance of his contract, violated the rights of any person or engaged in acts which might be detrimental, cause an immediate threat of safety and other kinds of language.
The particular cause we are concerned with is the provision that calls for reassumption upon a violation of rights, in quotation marks.
Senator ABOUREZK. It is subsection 1.
Senator ABOUREZK. What is your particular concern with that section?
Mr. Parker. We feel to invest authority in a contracting officer to reassume service when a tribe is engaged in a violation of rights should be clarified. Violation of rights, if you consider what that might mean can only mean something in the nature of fundamental civil rights. Our concern is that this clause may not be interpreted to be grounds for contract reassumption for violations of civil rights which are not interpreted within a context of existing law.
Primarily, we are referring to the Indian Civil Rights Act and other relevant law that follows that same trend. Basically, what we are saying is the rights of the tribe to engage in traditional and customary practices, which may on occasion be inconsistent with Anglo-American series of civil rights, is protected under the Indian Civil Rights Act or court interpretation of the Indian Civil Rights Act. We feel this is the interpretation of this clause which should be impressed upon contracting officers.
Senator ABOUREZK. I am advised by the experts on these regulations from the Library of Congress that there is a hearing procedure prior to rescission and there is an opportunity for corrective action. So it is not a summary decision on the part of the contracting officer. It is a procedure he would have to go through. Were you aware of that?
Mr. PARKER. Yes; I was aware of that but we were not concerned specifically with the procedures that the contracting officer has to go through before he can order reassumption. We are concerned with his interpretation of what violation of rights might be. Our particular concern is that this violation of rights context must be interpreted within the context of the tribe's right to engage in traditional and customary practices which mav not be consistent with the concepts under the Bill of Rights but which are consistent or have been interpreted to be consistent with rights as defined by the Indian Civil Rights Act.
In summary, what we are suggesting is that this violation of rights clause be interpreted within the context of rights as defined by Federal courts under the Indian Civil Rights Act.
Section 401.54, contract costs and part II to appendix A, to section 406, No. 16, provides for attorney fees but as we read the regulations, they do not provide for attorney fees, for tribes during the negotiation process of the contract and they do not provide for attorney fees for appeals from decisions to decline or to cancel or to reassume.
The point we wish to make is if a tribe has a small budget and is not able to retain a general counsel or special counsel to assist them in the negotiation process, in effect many tribes might be virtually at the mercy of the contracting officer if they do not have access to legal counsel during these critical stages of contract procedure.
We would urge that the committee question the committee plans on allowing for attorney fees during negotiations and appeals of declination, cancelation and reassumption.
Section 401.49, subsection C, requires that tribal organizations which contract under title 1 are required to submit monthly reports to their constituencies or to the community members served by the contract. We don't have any technical objections to this particular reporting requirement but we feel it is not consistent with the policy of the act itself which is to encourage tribes to expand the level of self-determination, to expand the level on which they operate as a government and at the same time, turn around and require them to report on a monthly basis to the members served by the contract.
The other reporting requirements in the act specifically protect the purposes for which reporting requirements are imposed.
Section 401.74, retrocession of contracts, the regulations themselves do not clarify the procedures to be used on retrocessions from multitribal contracts. That is, contracts brought by multitribal organizations. Regulations provide that before the contracts can be entered into, the approval of all the existing tribes must be secure. If some or not all of those tribes participating in a multitribal contract wish to retrocede, it is not clear at all in the regulations about what is the response of the administration.
Arguably, those tribes retroceding have a right to have services maintained at the prior level by the Bureau. But there are necessarily budget restrictions involved in any question like this. If there is only enough money for services to be administered by the contract and not enough money for services to be administered parallel to the contract to those tribes who wish to retrocede, this places a hard decision on a contracting officer.
We would urge the regulations reflect a concern to continue with these contracts and to advise those tribes that wish to retrocede that there is only so much money available and they will have to contend with a reduced level of service. In effect, we are urging that the emphasis be on continuing with the contract rather than on canceling the contract and then there simply would not be enough funds to maintain services outside the contract.
[The prepared statements of Messrs. Deloria and Parker follow:]
STATEMENT OF PHILIP S. DELORIA AND ALAN PARKER OF THE AMERICAN INDIAN LAW CENTER BY REQUEST AND FOR THE NATIONAL CONGRESS OF AMERICAN INDIANS
The Indian Self-Determination and Education Assistance Act has been widely recognized as an outstanding effort on the part of the 93rd Congress and particularly this Subcommittee to strengthen the processes of self-government of Indian Tribes. We feel that the Bureau of Indian Affairs has made a sincere and commendable effort to secure the input of Indian Tribes and organizations in the drafting of regulations to implement this Act. In general, these regulations reflect that input and that effort. Most assuredly there are problems with these regulations and we intend to address some of these problems in testimony this morning. However, we wish to point out that we recognize the amount of time and effort expended by the BIA staff in drafting what is overall in an exceptable set of regulations to implement an excellent piece of legislation.
In our judgment, if the Indian Self-Determination Act is to be successfully implemented through it, the most important issue to be considered is not directly related to the regulations themselves, but is nevertheless of the most crucial importance at this time. We are referring, of course, to the level of funding available to the Federal Agencies to put this legislation into effect. While we acknowledge that this Subcommittee is not charged with an appropration function, nevertheless, we would suggest that it is quite appropriate for the Committee to concern itself with the Administration's budgetary plans for implementing this Committee's legislation.
Specifically, we refer to Section 104 of the Act which provides authority for the BIA to award grants to Indian Tribes and Tribal organizations for the purposes of strengthening their administrative capabilities in order that they may successfully assume contracts to deliver the various Federal services. It is our understanding that the Administration has yet to submit a budget request to implement Section 104 for Senate mark-up for F.Y.-1976 as part of the Administration budget. We further understand that if the request is not submitted soon, or prior to the mark-up session, the Administration will then have to rely on a supplemental request which will necessarily delay funding until well into the next fiscal year.
We take note of the fact that this Subcommittee has been scheduled to receive testimony from Administration witnesses on the 28th of this month, and we would respectfully recommend that OMB as well as Interior Department fiscal plans regarding implementation of P.L. 93–638 be scrutinized.
With respect to Section 104, Grants to Indian Tribal Organizations, we note that Sub-section (C) specifies that "funds made available to tribal organizations under this Section may be used as matching shares for any other Federal grant programs which contribute to the purposes for which grants under this Section are made.” This Section is implemented by 402.12, Purposes of Grants, and 402.33, Matching Shares, of the proposed regulations.
The American Indian Law Center of Albuquerque, New Mexico, has been involved in a study entitled "Federal Indian Domestic Assistance Programs”. (FIDAP) for the purpose of establishing the precise legislative barriers which may exist or which have been interpreted to limit Tribal participation in Federal Domestic Assistance Programs. The focus of this study has been on Congressional legislative eligibility requirements. The FIDAP study research findings will be made available to Tribes (1) to increase Tribal participation overall in Federal Domestic Assistance Programs and (2) partcularly as a strategy to open up such programs for Tribal participation. The FIDAP study has established that approximately $48 billion is appropriated annually for Federal Domestic Assistance Programs, and it is clear that the potential for Tribal participation in these previously closed programs, or programs previously closed to Tribes, will be immeasurably increased if Section 104 grant funds are available for matching purposes at a realistic level.
Although it is true that the Administration has successfully requested approximately $11 million as an addition to the BIA budget for the purposes of absorbing projected "contracting" costs, they have yet to initiate a request designed to implement the grant-making authority of this Act. Without belaboring the point, we feel that it is obvious that the overall thrust and purposes of this Act cannot be realistically achieved insofar as the great majority of the Indian Tribes is concerned unless and until a substanial amount of funding is made available to the Indian Tribes for the purpose of improving their present administrative capabilities. This issue was thoroughly considered by the Congress in its deliberations on the bill s. 1017 and the legislative history of that bill amply demonstrates that full funding of Section 104 is essential to the success of this legislation.
Additional budgetary considerations surround the concepts of multitribal contracts resulting in two or more delivery systems and contracted services which now appear as line-items. During the joint NCAI/NTCA review session in August, we received the clear impression from BIA representatives that the Bureau would consider as a cause for declination a multi-tribal request to contract which would not affect all Tribes in the organization or jurisdiction and which would result in a lack of funding for the delivery of services at the existing level to the non-contracting Tribes. While the accommodation of parallel systems of delivery of services is not specifically addressed in the proposed regulations, we feel that this point needs to be clarified by Administration witnesses. The BIA has also indicated that it will contract services which are presently line items and that the available funds for contracting are the current Bureau budget funding levels. It is our understanding that the Bureau plans to make additional funds available where Tribal organization costs exceed Bureau costs for performing on the contract so that the Tribal organization can incur costs which are not reflected in the line-item figure. We would ask for clarification of this important point in the regulations and for assurance from Administration witnesses that they will not restrict contracting on our Tribal organizations to existing line-item levels. At this time we are not prepared to spell out the exact details of a plan to accomplish this goal.
Discussion of the following sections of the proposed regulations constitutes a summary of the highlights of the joint NCAI/NTCA task force commentary which has been submitted to this committee, and includes follow-up considerations on behalf of NCAI. 401.2—Definitions, Sub-paragraph A-1_Trust Responsibility. 401.18–21—Role of the Tribal Council in Reviewing Contracting Applications. 401.74—Reassumption, Subsection A-1-Violation of Rights. 401.54—Contract funds and the Appendix A to 406 of the Regulations; Principles
for determining costs applicable to grants. Part 2, Number 16; Legal
Expenses. 1. 401.2—Definition of Trust Responsibility
Upon initial analysis of the proposed regulations' definition of "Trust Responsibility”, we were quite dismayed by the narrowness and seemingly negative emphasis of the proposed definition. The joint NCAI/NTCA commentary offers an expanded definition of Trust Responsibility which would emphasize the role of the Bureau as being legally charged not only with the advocatory protection of trust resources but also with the strengthening of tribal self-determination. This expanded definition was premised on the assumptions of the task force that: (1) given this call for a Federal definition of Trust Responsibility we should not settle for a negative definition, but should rather require a comprehensive allencompassing statement and; (2) since the whole tone and emphasis of the legislation is directed at a federal policy of strengthening tribal self-determination, this policy should be reflected in a regulatory definition.
However, upon reconsideration, we have concluded that this interpretation of Trust Responsibility is offered for the limited, technical purposes of P.L. 93-638 regulations only, that is, designating those specific "Trust Responsibility” functions which the Federal government cannot totally contract out to the tribes without abrogation of its core trust role.
From this perspective, it is clear that such a definition does not foreclose a broader interpretation of Trust Responsibility for other purposes which may quite possibly include a legal responsibility to protect and preserve tribal rights of self-government consistent with “the highest degree of fiduciary responsibility" as suggested in the NCAI/NTCA recommendations. However, for the narrower purposes of identifying those "non-contractable" trust functions of the Federal Government, the proposed regulations' definition is technically correct and acceptable.
Indeed, there are advantages to the tribes in construing this definition narrowly in order to allow for the greatest flexibility in contracting such services as natural resource development functions. II. 401.18-22-Role of the Tribal Council
The Act does not clearly identify the role of the tribal governing body in relation to the question of contract and re-contract applications by tribal organizations which are in some way separate from the tribal governing body. During NCAI initial analysis of the proposed regulations, it seemed to us that the regulations could be read to allow contracting by tribal organizations without specific affirmative review and approval by the tribal governing body. For reasons which have been elaborated upon in the joint NCAI/NTCA commentary, it was felt that it would be detrimental to the effective functioning of the tribal governing body as well as inconsistent with the policy of this Act, to provide for the possibility for contracting of reservation based services without providing for review and approval by the tribal governing body. Simply put, it is just not good government. Consequently, we would urge the Administration and this Committee to preserve this oversight function in the tribal governing body, rather than to allow for a possibility of contracting by a tribal organization completely outside of the tribal government.
The joint NCAI/NTCA paper called for an affirmative resolution by the tribal council upon each and every recontracting application or application to maintain existing contracts by separately constituted tribal organizations whereas the proposed regulations call for a reasonable time period during which the tribal governing body has an opportunity to exercise a veto power over the contract application.
Upon reconsideration, we feel that if this “veto" authority is retained it would still preserve sufficient protection of the tribal governments oversight role. To require an affirmative resolution in all instances may place an unnecessary burden on the tribal governing body, and, given the often time consuming nature of this process, may result in an unintended lapse of contract by separately constituted tribal organizations, contracts which are not only acceptable but are quite beneficial to the community. III. 401.74—Reassumption—Violation of Rights
The clause in the regulation calling for reassumption in the contract when the federal agency finds a simple "violation of rights”, resulting from a contractor's performance, calls for comment and clarification.
We feel this requirement and authority must be interpreted in light of two principles :
1. The violation must occur in the performance of a contract and not simply in the exercise of Tribal governing powers. This is clear from the text of the Act. Furthermore, the violation surely ought to be of a serious and reoccurring nature to justify action by the contracting officer. Since the regulations also call for the cancelation of the contract for failure to perform under the terms of the contract (401.75), it seems clear that the “reassumption" power in the hands of the BIA contracting officer is reserved for extraordinary circumstances.
2. A "violation of rights” can only mean something in the nature of fundamental civil rights. In view of the long established principle of Federal law that Indian Tribes are not subject to the U.S. Constitution unless expressly provided by the Congress, we can only assume that it was the Subcommittee's intention not to bring in the Federal Bill of Rights as a standard to measure such