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THANK YOU VERY MUCH FOR YOUR CONSIDERATION OF THESE MATTERS.
MAXINE EDMO CHAIRPERSON
Senator ABOUREZK. The next panel will be the United Southeastern Tribes, Eugene Begay, Donald Solomon, Buffalo Tiger, Robert Hoag, and Calvin Isaac.
STATEMENT OF EUGENE BEGAY, EXECUTIVE DIRECTOR, UNITED
SOUTHEASTERN TRIBES Mr. BEGAY. My name is Eugene Begay and I am executive director of the United Southeastern Tribes. I have here with me on the panel today Chief Calvin Isaac of the Mississippi Band of Choctaw Indians, Mr. Buffalo Tiger, elected chairman of the Miccosukee Tribe of Florida and general counsel for the United Southeastern Tribes, Mr. Donald Solomon.
I want to thank the committee for giving us this opportunity. My opening remarks will be brief. I will not read my statement except to say that the current regs are very encompassing, very difficult to review in such a short time. I received your letter on October 17. The regs have been changed consistently in the past 3 months.
I would recommend in accordance with the Alaska Federation of Natives that we be given time to further review and work with Indian Health Service and BIA and Civil Service Commission.
Senator ABOUREZK. The record will be open until the end of No vember.
Mr. BEGAY. I also believe that in the Federal regs the definition for Indian tribes and Indian organizations be further clarified to ensure that federally recognized tribes have control and have continuous enforcement and input into contracts, subcontracts and consultants who may be involved in the contractual arrangements between the tribes and Federal agencies.
In reviewing the regs, I also note that it stipulates that Indian Health Service or BIA will provide technical assistance to those tribes that do not have the capability to develop a contract and also to provide them with technical assistance in that respect. I believe this is in serious violation of the theory and law of contracting where it is assumed that the two parties are independent and sufficient to negotiate a contract which is beneficial to both parties.
I would recommend that some arrangements be made that tribes have sufficient time either with a grant or some other support so that they can get their own consultants to help them in an independent manner in negotiating and developing contracts.
I also recommend that the independent provisions for the financial capability of federally recognized tribes to contract with the Federal government should provide for planning grants substantial enough to develop the capability and expertise necessary.
I also recommend that the indirect cost rate, sometimes referred to as general overhead and administrative costs, not be one percentage but it should be based on a financial analysis of the total tribes' financial capability. This is important so that tribes can continue to have financial capability to negotiate contracts with the Federal Government.
My last concern is that in making contracts with the Bureau of Indian Affairs and Indian Health Service, there are very few Indian people that can readily identify or that readily know the complexity and multitude of services available. It is important that Indian tribes be able to contract those services that coincide with their long term plans for travel development and all areas of economic development, social service, education, etc. Tribes should not be put in the position to contract services simply because they are available to be contracted. They need to be given the time to develop good comprehensive plans for the total tribe.
[The prepared statement of Mr. Begay follows:7
STATEMENT OF EUGENE A. BEGAY, EXECUTIVE DIRECTOR,
UNITED SOUTHEASTERN TRIBES, INC. Honorable Senator Abourezk, Chairman of the Senate Subcommittee on Indian Affairs and other distinguished Senators of the Subcommittee; my name is Eugene A. Begay. I am the Executive Director of the United Southeastern Tribes, Incil and I am honored and delighted to make this presentation regarding Public Law 93–638, the Indian Self-Determination and Educational Assistance Act. Our organization consists of membership by seven (7) federally recognized Indian Tribes as follows: Mississippi Band of Choctaw Indians, Eastern Band of Cherokee Indians, Seneca Nation of Indians of New York, Seminole Tribe of Florida, Miccosukee Tribe of Indians of Florida, Chitmacha Tribe of Louisiana, and Coushatta Tribe of Louisiana.
At this time I would like to introduce those members of our organization which have been able to be here at this time to provide testimony on behalf of their individual Tribes and the USET organization. We have Chief Calvin Isaac from the Mississippi Band of Choctaw Indians, Chairman Buffalo Tiger of the Microsukee Indian Tribe of Florida, and Mr. Donald J. Solomon, General Counsel for the United Southeastern Tribes, Inc. These gentlemen will be providing testimony along with written submitted documentation of their testimony following my opening testimony as follows:
I have to agree with Senator Abourezk when he states in his invitational letter to me of October 7, 1975 regarding this opportunity for our organization to present testimony on these particular oversight hearing in which he states: "I believe it is accurate to state that no other public law since the mid-1930's, when Congress approved the Indian Reorganization Act, has generated as much interest within the Indian community and the affected Federal agencies as P.L. 93-638."
The interest is expressed as a tremendously diversified concern by various Indian Leaders and entities throughout the Country, that it is very difficult to make what I would feel a concise and accurate explanation of these concerns regarding Public Law 93–638. I have read the Bill and have reviewed the proposed rules and regulations and find them to be overly encompassing and therefore feel that some additional clarification and brevity could be implemented. In attending Indian meetings in our Southeast area and throughout the Country, and in speaking to our USET Tribal Leaders I find this to be also their primary concern and final evaluation at this time. However, I am sure that in the formulation of the Bill and regs that it was not purposely planned this way but was perhaps haste and promotion of expediency in finalizing this Bill through the legislative process for early implementation on behalf of Indian people. Although Indian self determination and its full implementation is urgent and necessary as soon as possible, I do not feel that this should command top priority as a rationale for proceeding ahead without giving opportunity for full input by Indian Tribal Leaders in the future if necessary and as a result of these oversight hearings.
I recommend that a more concise definition of Indians, Indian Tribes and organizations be given as it may apply to eligibility for contractors and the services recipients of provisions contained in contracts or grants under P.L. 93-638. I believe that Indian service recipients should be, first of all, members of existing federally recognized tribes throughout the United States. I realize that in other parts of this Country federally recognized tribes are sometimes referred to under other titles such as rancherias, villages, pueblos, etc. I also realize that of these various descriptions applicable to federally recognized tribes that some of these tribes do not have trust land bases. The point that I am trying to make is that irregardless of this, if indeed they are federally recognized by the Department of the Interior, then they should be given first priority for all provisions of Public Law 93-638. Off-reservation Native Americans who are enrolled members of federally recognized tribes should also have access to services under their respective tribal governments in accordance with the provisions of services made available under P.L. 93–638.
It is important that all third party contractors, sub-contractors and consultants who may be ancillary agents in contracts or grants by the federal agencies as provided for under P.L. 93–638 and the federally recognized tribes, that these ancillary agents be initially approved, continuously endorsed and controlled by the federally recognized tribal contractors.
Many federally recognized tribes do not have the capability either by expertise or finance to equitably negotiate contracts with the Federal Government. P.L. 93–638 provides for technical asistance to be provided by those Indian federal agencies to assist Tribal Governments in developing programs and contracts for implementation. I believe that this is a serious violation of our basic law relating to contracting whereby theoretically both parties are assumed to be independent and deriving benefits from the contract by virtue of their independent capability and right to do so. For the Bureau of Indian Affairs or the Indian Health Service to provide technical assistance to the federally recog. nized tribes to assist them in negotiating contracts with them or any other federal agency is in serious violation of the whole essence and theory of contracting as defined by our law. This is sometimes referred to as “conflict of interest”.
Independent provision for the financial capability of federally recognized tribes to contract with the Federal Government under Public Law 93–638 should provide for planning grants substantial enough to develop the capability and expertise necessary to equitably negotiate a contract for services with any agency of the Federal Government under P. L. 93–638. In order to maintain the capability of federally recognized tribes to continuously contract with the Federal Government under P. L. 93–638, sufficient general administrative and overhead cost should be equitably provided for in all contracts and grants. These costs are sometimes referred to as indirect costs. Because of the varying developmental status and number of resources related to each federally recognized tribe, it is my recommendation that no specific percentage of indirect cost rate be applied to all contracts and grants but that a formula based on financial capability be established to determine fairly applicable indirect cost rates for each federally recognized tribe.
It is important that Indian organizations (Inter-tribal organizations, special interest tribal organizations) be controlled and governed by a Board who is representative of federally recognized tribal Indian communities.
Federally recognized tribes who choose to contract should be thoroughly orientated to exactly what kinds of services and provisions can be contracted within the federal agency that it is proposed to contract for services. There are very few people, even those who have worked within the federal Indian agencies for a number of years who are thoroughly cognizant and knowledgable of all the services and facilities that are available within their particular agency. Indian Tribal Leaders and administrators also know very little of the complexities of services and resources available within these federal agencies. It is my suggestion that provision be added to P. L. 93–638 to more thoroughly orientate all prospective contractors to the specific services available within federal Indian agencies. These services should be definitively and specifically explained. This will help to alleviate Tribes simply to contract services that are available without taking into consideration comprehensive and/or long term planning programs by each Tribe. Resources being made available under P.L. 93-638 should be coordinated and facilitated in conjunction with approved long term plans (at least 15 to 25 years) initiated by Tribal Government.
Mr. BEGAY. At this time, I would like to introduce Chief Calvin Isaac, chief of the Choctaw Tribe of Mississippi.
STATEMENT OF CALVIN ISAAC, CHIEF, MISSISSIPPI BAND OF
CHOCTAW INDIANS, UNITED SOUTHEASTERN TRIBES Mr. Isaac. Honorable Chairman, members of the staff, representatives of Indian groups, ladies and gentlemen. I am Calvin J. Isaac, tribal chief of the Mississippi Band of Choctaw Indians. I will sum
marize the Mississippi Choctaw position to the questions posed by the Senate Subcommittee on Indian Affairs.
In response to question No. 1, representatives reviewing the regulations affecting the Indian Health Services are of the opinion that the conditions dealing with the contracting are not satisfactorily explained, particularly in four areas. Most notable of these four is the requirement that the tribes provide for professional malpractice liability insurance but fail to make special provision in funding for this increase in cost. One area for possible exploration in resolving this shortcoming might be to amend the Federal Tort Claims Act so that the liability might instead be assumed by the Federal Government for tribal programs carrying out Federal functions. Second, section 3-4, 601G limits the use of G. & A. purchasing authority to cost reimbursement contracts, whereas, in our opinions this should be expanded to include fixed price contract as well. Third, by sections 3-4, 6013, clause 2, section 4, disputes that are not mutually agreed to are to be settled by the contracting officer. It is felt the contract should be appealable to a higher authority who has not previously been involved in the contracting process. Finally, it should be noted that the regulations on detailing of Federal employees to tribal programs have not been published, and we can therefore offer no judgment in this area. There is concern, however, over the fact that there is no real necessity to include tribal participation in the development of these regulations and therefore a definite opportunity for the establishment of unacceptable regulations does exist.
In response to question No. 2, it is felt that the regulations do not provide reasonable procedures for submission and review of contract proposals, including procedures and hearings for appeals in case a contract proposal is modified or canceled. Reference would again be made at our objections to the settlement of disputes by the contract officer as mentioned in the paragraph above. Further the Contract Proposal Declination Appeals Board (CPDAB) should include specific provisions for adequate representation of tribal groups.
In response to question No. 3, the regulations provide that all types of Indian Health Services functions are subject to contracts under Public Law 93–638 and therefore properly defined this area.
In response to question No. 4, it is impossible to provide a definite answer to the question of whether the grant regulations for the Indian Health Service adequately reflect congressional intent to encourage self-determination through grant assistance. The provision of grant assistance is entirely discretionary with the Secretary of HEW and therefore may or may not be adequate. The grant section of Public Law 93–638 is nonfunded and therefore does not encourage self-determination.
To the extent that the regulations concerning contracting with the Bureau of Indian Affairs, the following observation and recommendations are submitted :
It is felt generally that the regulations satisfactorily explain the conditions in which the Bureau will deal with an Indian tribe or tribal organization for contract purposes in most areas. The procedures for applications for contracting of programs with the Bureau of Indian Affairs are generally suitable; and the procedures for reviewing, although time consuming and complicated do provide adequate provisions for evaluation of the proposal. There remains, however, a cer