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violations of rights. Rather, such rights are to be protected by the Indian Civil Rights Act in other relevant law, which is not U.S. Constitutional law. From this perspective, rights of persons must necessarily be defined by and in the context of certain traditional or customary practices of Indian Tribes, which on occasion have been found to be inconsistent with the prevailing AngloAmerican concept of civil rights. In such instances, the Federal Courts, in applying the 1968 Indian Civil Rights Act, have correctly concluded that such rights are to be interpreted in the context of the Tribe's right to follow traditional and customary practices. IV. 401.54, Contract Funds, and Appendix A to 406, Principles for Determining
Costs; Part II (16) Legal Expenses The proposed regulations presently do not provide for: (1) reimbursement of legal fees incurred during the negotiation process, (2) legal fees for appeals of either declination, reassumption, or cancellation decisions.
A great many Indian Tribes, including those standing to benefit the most from this Act, simply cannot afford to retain a general counsel or special counsel for purposes of advising them in matters such as contract negotiations. While it is not always the case, too often the negotiation process can be characterized as an adversary proceeding. Consequently, a tribe that does not have access to legal counsel or that cannot charge legal fees off as indirect contract costs, is at a very real and serious disadvantage. It would be accurate to say that many such tribes would be virtually at the mercy of the contracting officer. If the entire contracting approach is to be truely successful, the tribes must be able to secure the best possible contracting terms. The alternative is to doom such contracting efforts to failure in many cases. Consequently, we would strongly urge modification of the regulations to allow tribes access to legal counsel at those critical stages of the contracting process.
Ms. HARJO. In regard to the IHS regulations, the NCAI/NTCA joint review project did not go into detail on these regulations as we were never provided with a current set of regulations. I understand that even today these regulations are being written and changed around. There are inconsistencies and conflicts, we feel, between the IHS regulations and the BIA regulations and we would recommend that a study group composed of tribal people, tribal leaders, be appropriated through Congress and be formed to try to line up these two sets of regulations.
We base this on such concepts as the suspension of contracts without protective provisions, as included in recent IHS regulations, and because there is no clear statement of policy regarding retrocession in the IHS regulations, as appears in the BIA regulations.
Victor LaCourse, tribal affairs officer of the Portland area Indian health office, has called IHS regulations an iceberg, and by letter to NCAI documented the 44 documents which are included and referred to in the IHS regulations. His staff could find fewer than 10 at the Portland area IHS office. If those documents are generally unavailable in the Portland area office, we would assume that they are greatly and generally unavailable to Indians.
Senator ABOUREZK. We will ask IHS for them. I think the time for your panel has come to a close.
Ms. HARJO. I would ask that Mr. Roger Jim's statement on behalf of the Yakima Nation be included.
Senator ABOUREZK. That will be accepted.
STATEMENT OF ROGER JIM, ON BEHALF OF THE YAKIMA INDIAN NATION In the main these regulations reflect a considerable and commendable effort on the part of the Bureau of Indian Affairs to maintain the integrity of the Act and incorporate the various suggestions from various areas. We are particularly
impressed with the fact that it is made clear throughout these regulations that this right to contract with the tribes shall not diminish the trust responsibility of the federal government in any way. We would hope that these hearings regardiig these regulations would make it clear that it is the intent of Congress in the adoption of Public Law 93-638 and also the intention of the Bureau of Indian Affairs and the Department of the Interior in the promulgation of these regulations that there be no diminishment or lack of maintenance of the trust responsibility. We would also request that these Congressional hearings make it clear that there shall be no state regulation of contractors acting under a Public Law 93–638 contract and that there should be immunity from taxation of said contractors from both state and federal taxation.
Further, it should be made clear that the provisions of the National Environmental Protection Act does not pertain to these contracts so as to require an environmental impact statement before the execution of these contracts. We do have some questions in regards to these regulations which we hope that these hearings will clarify and thereby provide a proper legislative history to assist in the interpretation of the proposed regulations.
The first of these questions regards Section 403.2. The perennial question of who is an Indian is again raised. Proposed regulations require that one must be a member of an Indian tribe. We call to the Congress' attention that there are many persons who may have a large degree of Indian blood but because of such things as residence requirements or the fact that their Indian Blood is from many different tribes, this person would not be eligible for services under this Act. This would be true even though he may possess more Indian blood than a person who is enrolled with one of the federally recognized tribes. It is suggested that this committee should pursue this subject with the Departmental witnesses.
Likewise in Section 403.2, we have a question of what is a previously private school. It would seem that the regulations simply that it is a school, kindergarten through 8th or 9th through 12th. When departmental witnesses are be fore the committe, could it be clarified whether this can also include pre-school through third grade or seventh through ninth grade for example.
With regard to Section 403.4, it is requested that the legislative record contain a clear description of what maximum Indian participation is to be and how it will be achieved.
With regard to Section 403.12, the legislative record should be supplemented to show whether the eligibility residence requirement is still limited to Indians on or near reservations.
With regard to Section 403.13, we believe that the legislative record should clearly show that the 70% total Indian enrollment refers only to operational contracts and not to supplemental contracts. If this is not the case, it would seriously affect all our local school districts on the Yakima Reservation.
With regard to Section 403.18, part N, the legislative record should be made clear as to whether if a student who is one-fourth or more degree Indian but still not affiliated, recognized or enrolled by a tribe is to be counted in Indians eligible for this education plan.
With regard to Section 403.20 parts e, f and g, the legislative record should clearly show that if operational contracts increase, there will be no decrease in moneys available for supplemental contracts. Johnson-O'Malley monies have been limited to supplemental contracts. We presume that there will be no decrease in the supplemental contracts even if operational contracts are in. creased. Otherwise, this would be a severe change in policy on the part of the Bureau of Indian Affairs. This should be examined by Congress.
With regard to Section 403, is it necessary that the tribes contract with the BIA for Johnson-O'Malley funds or will they have the option to utilize state Johnson-O'Malley offices if the tribe desires.
With regard to Section 404, we would like to know why funds are limited to previously existing private schools. Why are they not available for developing new school projects. The definition of previously operated private schools appears to us to be so restrictive that it eliminates the possibility of any tribe starting any new school. It would appear to us that the proper approach to this problem would be eligibility based on need rather than first in time. It would appear to us with regard to Section 403.35 that there should be some definition of capital outlay. Is it any equipment or purchase over $100,000? Is capital outlay expenditures limited to operational contracts only or available for supplemental contracts. This matter should be clear in the regulations or at least in the legislative hearings.
Senator ABOUREZK. I want to thank the panel for your analysis and suggestions. We appreciate your appearance here today.
The next panel will be the National Tribal Chairmen's Association, appearing before us the vice president to be accompanied by others. The panel will be introduced this morning by a colleague of mine from the House of Representatives, Congressman Bob Bergland, of Minnesota. Bob and I served as freshman House Members together and he is now still a freshman Congressman over on the House side.
Bob, we are delighted to have you here and I would like to welcome you to this subcommittee.
Congressman BERGLAND. Thank you, Mr. Chairman. I'm here to lend moral support and to commend the words of Mr. Byron Graves who will represent the delegation coming down from the Red Lake Band of the Minnesota Chippewa Tribe. Accompanying Mr. Graves is Verna Wood, Ms. Delores Cloud, Mr. Monte Hammitt, Mr. Ray Oliver, Ms. Joyce Oliver, and their attorney, Counsel James Bodin, from Duluth, Minn.
Senator ABOUREZK. Do you want them to sit at the table with you? Congressman BERGLAND. If there is room, Mr. Chairman.
STATEMENT OF ERIN FORREST, VICE PRESIDENT, NATIONAL TRIBAL CHAIRMEN'S ASSOCIATION; ACCOMPANIED BY DELORES CLOUD, RED LAKE TASK FORCE; VERNA WOOD, RED LAKE TASK FORCE; BYRON GRAVES, RED LAKE TASK FORCE; MONTE HAM. MITT, RED LAKE TASK FORCE; JOYCE OLIVER, RED LAKE TASK FORCE; RAY OLIVER, RED LAKE TASK FORCE; JAMES BODIN, RED LAKE TRIBAL COUNCIL ATTORNEY, DULUTH, MINN.; HON. ROBERT BERGLAND, A U.S. REPRESENTATIVE FROM THE STATE OF MINNESOTA; AND MARK DAYTON, AIDE TO SENATOR MONDALE
Mr. FORREST. Mr. Chairman, members of the committee, on behalf of the National Tribal Chairmen's Association
Senator ABOUREZK. Excuse me, for the reporter's sake, I wonder if you would identify yourself before you speak?
Mr. FORREST. My name is Erin Forrest. We are most appreciative, that Congress, and in particular, this committee, exhibited such a keen understanding relative to the need and timeliness for such a constructive and challenging approach to making self-determination a meaningful reality.
We have reviewed with interest, the history and intent of the act as outlined in the Senate committee report of March 28, 1975. The potential for tribal governments to exercise expanded responsibilities and opportunities for delivery of services while strengthening their own governmental capabilities is exciting; however, we are experiencing some grave concerns that the Indian Health Service regulations of September 15, which very few of us have had an opportunity to review, may tend to stifle these intended goals.
Before responding to the questions posed by the committee, we would like to take this opportunity to express some general concerns.
One: There is widespread discontent, that both the BIA and IHS failed to give serious consideration to Indian recommendations which were expressed during initial consultation sessions. For example, repeatedly, Indian leaders insisted that the BIA and IHS combine their efforts and develop one set of regulations that would be easily understood, with a minimum of reference to other existing regulatory authorities. It was suggested that special provisions, whenever applicable, either to the BIA or IHS, be inserted in appropriate sections of reference.
Such has not been the case. We now have two sets of regulations, significantly different, even in definitions, and the references will require considerable research and acquisition. We anticipate two substantially differing handbooks not to mention two national efforts of regulation orientation. We also anticipate considerable confusion in the planned orientation sessions, resulting from differing interpretations of the law.
Two: As prescribed by law, the initial consultations started out as a joint BIA and IHS effort. It soon developed into a competitive arena for organized confusion, with each agency charging the other wi domination, and so forth. The atmosphere for productive Indian input has been severely limited, particularly by the divergent interpretations under which comments were solicited.
If the intent of Congress is to be implemented to the greatest advantage of Indian tribes, this committee should concern itself with resolving these differences.
In all fairness to the Bureau of Indian Affairs, however, their regulations reflect greater conformance to the intent of the law, their distribution of related documents has been prompt, and their most recent consultation sessions related to the proposed regulations indicate responsiveness to Indian ideas.
Response to IHS regulations is most confusing and deeply depressing. To date, their published regulations are not in sufficient distribution among Indian tribes for intelligent comment. Rumors are prevalent, changing from day to day, that portions of their regulations may or may not be amended. Answers to Indian inquiries are noncommittal if not absolutely negative.
IHS regulations are a cause of serious concern, particularly due to their silence on a positive policy statement and in regards to contracts in existence prior to the implementation of Public Law 93–638. These implications appear to give credence to rumors that IHS will continue to use the Buy-Indian Act as the preferred method of contracting.
Under the guise of providing “flexibility in contracting" we are fully expecting IHS to provide regulatory authority that is designed to circumvent the need for “Tribal Clearance” on current and future contracts.
There is sufficient evidence that confirms bitter, philosophical differences within IHS relative to intent and the responsibilities assigned to regulation development. It is apparent that one faction is more concerned with assuring continuation of current contracts under the Buy-Indian Act, than subjecting such contracts to the intended provisions for tribal scrutiny.
In any discussion of this matter, it should be understood that the history of Public Law 93–638 as published in the Senate report, in March of 1974, specifically relates to the need to strengthen tribal governments and to provide a more clearly defined contracting authority.
On page 22, under II of that report, Congress identified the four basic acts under which contracting was authorized. These are, the Buy-Indian Act of 1910, the Johnson O'Malley Act of 1934, the Snyder Act of 1921, and the Act of 1834 (4 Stat. 737).
İn reference to these authorities and S. 1017, the Congress went on to say, "The difficulties in straining statutory language beyond its original intent creates numerous administrative and management problems which this legislation is designed to correct."
In the second paragraph following the above quote, Congress added, “S. 1017 is designed to alleviate these problems by providing direct statutory authority for Contracting of Federal Programs by Indian Tribes."
There is then, no question as to what the intent of Congress was and the implications of the IHS silence in these areas is questionable.
A key issue is that the IHS proposed regulations on 93–638 are silent in regard to the applicability of 93–638 to existing contracts at the time 93-638
Senator ABOUREZK. Mr. Forrest, do you plan to read the entire statement?
Mr. FORREST. It is not very long.
Senator ABOUREZK. I was wondering what you were going to do for the other folks up here in the panel.
Mr. FORREST. They have time set aside for them in the education portion.
Senator ABOUREZK. They are sharing the 20 minutes with you.
Mr. FORREST. Let me then go to the questions posed by the-our answers to the questions posed by the committee. No. 1, the answer is that neither the Bureau of Indian Affairs regulations or IHS regulations satisfactorily explain the conditions-in which they will identify an entity as a "Tribal Organization."
Mass confusion exists throughout most areas and depending on local interpretations, on the question of what constitutes a “Tribal Organization."
The BIA definition of a tribal organization, subpart A, section 401.2, and the IHS definition, subpart H, section 36.102, are substantially different. We unequivocally reject the IHS definition.
The BIA definitions clearly define a "Tribal Organization," which substantiates our position that a “Tribal Organization" is the creation of a tribe or tribes.
The problem some administrators seems to have is with the phrase, "or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes maximum participation of Indians in all phases of its activities."
It is our interpretation, the reference to the words “such organzation," means one that is controlled, sanctioned, or chartered by a tribe or tribes. This is further substantiated by the provisos following the above-quoted phrase.
Since, our interpretations are not shared by significant numbers of Federal employees and so-called nonprofit Indian organizations the committee needs to clearly establish congressional intent.
If in fact we are in error in our interpretation, then the intent of "strengthening Tribal Governments" is meaningless.
A critical and related issue concerns what constitutes a recognized legal "entity," for purposes of participation.