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information dealing with geological and physical information regarding oil wells. I think a sentence ought to be added to add to that, surface and subsurface geological information concerning minerals and mineral deposits. I don't think anything about coal, copper, or whatever the tribes have on the reservations should be public information. I think that those kinds of things are not public information to any. body except the tribes. Thank you, Mr. Chairman.

[The prepared statements of Messrs. Ross and La Pointe follow:] STATEMENT OF KENNETH Ross, PRESIDENT, NATIONAL INDIAN EDUCATION


The National Indian Education Association is privileged to submit the following testimony before this Committee of the Congress of the United States of America. Acting within the scope of our Association's advocacy role for American Indians, in the total realm of Education, we hereby submit the following statements for your perusal regarding the Federal Regulations relative to Public Law 93–638.

Our statements will pertain to select aspects of Public Law 93-638 and present relevant questions or concerns our association feels need to be addressed, so as to enhance the smooth implementation of this important congressional action.

In general, the concepts included in this landmark legislation are of a nature which were long overdue in order to upgrade quality educational services on behalf of Indian people. Yet, there remains several unclear points which need clarification in our minds.

First of all, in the operations of providing education, it has become increasingly evident that a more definitive interpretation is needed as to the roles and responsibilities of the State and the Federal Government. Under Sub-part BApplication Process Section 403.13 the federal regulations mandate that systems applying for financial consideration under this legislation are required to validate that (i) “It cannot meet the applicable minimum State standards without such funds." This requirement for eligibility infers all educational services should be designed to comply with the State's Standards. In most state's standards, if not all, very little, if any direct input has been solicited from Indian people. More importantly is the question of legislatively imposing mandates of this nature on potential recipients which would not be able to operate, should this mandate fail to be complied with. An example of this is the public school systems whose enrollment is almost entirely American Indian, with a miniscule tax base, and further hampered by a State School Finance system which treats or equates equality with equal disbursement of funds without regard to unique district problems, such as geographic location, etc.

This mandate under supplemental programs places an undue and unfair disadvantage on State operated systems serving American Indian youth when the same requirements are not applicable to previously private schools as cited in section 403.13(b) (2).

Within the purview of legal authority rests a very pertinent question. The Constitution of the United States does not specifically address education as a federal responsibility. The primary case where the Federal Government does have a direct educational obligation is in certain treaties with Indian Tribes. Recognizing this, it seems realistic to assume that Education is a reserved power unto State and local government. If a State does not mandate Educational Standards it is conceivable that this authority is then vested in the next tier of the governmental structure, the local school board. In this situation, should a local school board formally move to adopt a concrete set of standards, i.e. North Central Accreditation Standards, as that particular school's educational standards, what impact will this fact make on eligibility determination?

Under Section 403.13 (iii) the requirment to demonstrate that, “It has fully utilized all other sources of financial aid, including all forms of State aid and Public Law 874 payments. The State aid contribution per pupil must be at least equal to the State Average," places further repercussions on State Governments if interpreted literally. To illustrate this point, every state which does not mandate through their State legislature a maximum levy for support of education would have to pass such a law or levy, and the increased tax rate might create a financial crisis for private business. Furthermore, every applicant would have to annually prove that they had written a project and submitted

the same for funding under all avenues of financial assistance, and further show verification of all applications which were not approved for funding. This in itself could be a very laborious undertaking given all of the various titles under the Vocational Education, Elementary and Secondary, and National Defense Education Acts just to illustrate a few.

In addition, the question could be raised as to how will "previously private schools," determine their full per capita cost as it appears under Section 403.13(c).

The mandated requirements under Section 403.18 will have a marked impact on those school systems making application under this law. The specificity included in the regulations, while much needed for educational and fiscal accountability, will create a magnitude of paperwork which may inundate school systems. This additional workload may and probably will adversely affect all schools involved due to the generally small administrative staffs in most Indian schools, The time involved in preparing proposals, conducting educational needs assessment, establishing behavioral and programmatic objectives, monitoring and evaluating these functions will mean additional man hours or organizational restructuring of present staffing.

These actions and exerted efforts on the part of concerned Indian parents, school boards, Indian Parent committee members, students and school administrators can be virtually negated by appropriation of insufficient funds to meet the educational needs as previously determined. This process of substantiating need and equating need to the dollars which are required in the appropriation is one, if not the most, crucial element in the entire process. The frustration of laboriously jumping all the required hurdles only to find in the end that there is insufficient funds is understood only too well in Indian country. It is time for change.

One final consideration under Part 403-Educational Contracts under JohnsonO'Malley Act which we would like to have clarified in under Section 403.32, Pro Rata Requirement. As yet, we have been unable to ascertain specifically an established guideline as to what will be considered as a percentage or quota as applied to "where the participation of non-eligible students is so incidental as to be deminimus." Is this to be left to the discretion of the Area Director or his designee? If so, a diversity may arise from the more liberal to the more conservative area. We recommend that a general guide as to this element be adopted by policy within the Bureau of Indian Affairs but further suggest that the percentage not be less than 90 percent of the total individuals participating in the program or specific project component.

The second facet of our testimony addresses Part 407, School Construction Contracts for Public Schools.

Public Law 81-874 prioritization determinations do not take into account the number of direct beneficiaries who are American Indian under the guidelines of Public Law 93-638. It is a concept which should be applicable in determining the project highest on the priority list on the basis of a commitment to fund list. If this were integrated into the funding criteria it would enhance the ultimate intent of the legislation by placing the funds on a priority basis where the majority of Indian students would be the beneficiaries.

The National Indian Education Association announces its willingness to assist the Office of Education and the Bureau of Indian Affairs to review and refine these operational procedures.

STATEMENT OF FRANK LAPOINTE, MEMBER OF THE ROSEBUD Sioux TRIBE Senator Abourezk and Subcommittee Members: My name is Frank LaPointe, a member of the Rosebud Sioux Tribe.

This statement is being sent via the U.S. Mail but I hope it will be accepted along with other specific recommendations that must be taken seriously if P. L. 93-638 is to mean anything to the grassroots Indian people.

My plea to you, Mr. Chairman, is that your Subcommittee take a larger view of these proposed rules and regulations. Please give the Indian people something to celebrate during the Bicentennial-less government red tape for the Red people.

I would like to quote from an editorial in the Rapid City Journal on August 23, 1975. Although I don't always agree with its editorials, this one hit the nail on the head :

"Big government is unequipped to take into account unique factors involved in transactions between 50 states, 30,000 locations, and 200 million citizens. As each

of the hard and fast regulations prove inapplicable or unresponsive to a new situation, new regulations, exceptions, and redefinitions are enacted in a neverending struggle to keep pace with the real world."

We are trying to run an Indian controlled contract school out here in the real world and we looked upon P. L. 93-638 as a real solution to some of our real problems.

Now, however, we find a situation similar to that described by the Journal. We have read 58 pages of fine print being proposed for the unique situations in more than 800 Indian tribes, bands, or organizations listed in the 1970 Census, including 792,730 tribal members in 50 states and the District of Columbia, ranging from Oklahoma with 96,803 to Vermont with 204, living on 115 major Indian reservations and many more smaller ones or in 30 metropolitan areas with Indian populations over 2,500 and countless smaller towns.

The 1970 Census also says the median years of education for Indians living in Washington, D.C. is 12.6 so they probably can wade through all the governmental language in these 58 pages, but we Indian people out here in the real world have a heck of a time because our median years of education is only 9.8.

In 1970, there were approximately 20,000 pages in the Federal Register covering rules and regulations. In 1974 that figure jumped to 46,000 pages, and this year the estimate is at last 50,000 pages.

The 58 pages added to the Federal Register on Indian Self-Determination are the straw that is breaking our backs and blowing our minds in our struggle to comply with federal paperwork.

Your Subcommittee should take the lead in turning this country around and make a significant contribution to the real meaning of the Bicentennial Celebration—to allow people on the grassroots level to operate government programs in a way best for them. This means the proposed rules and regulations on P. L. 93-638 should be flexible enough for the unique situation on our reservation as well as the other 114 major reservations in the country.

This can be done in part by ordering the Secretary of the Interior to bring these proposed rules and regulations back to your Subcommittee within 10 days— in a form not to exceed 10 pages in the Federal Register.

Impossible? Maybe, but it would make a real goal. After all, one of the best set of comprehensive rules ever laid down was given to Moses by God Himself on 10 stone tablets. By following this example, your Subcommittee can set the pace for the rest of the government in dealing with “burrocracy” where stubborn adherence to the rule that paperwork begets paperwork is bordering on illicitness.

Thank you.

Senator ABOUREZK. The next panel is Glen Barnes, Les Klevan, Keith Taylor, and M. J. Rabenberg. I would like to welcome you all to this subcommittee hearing. If you are ready to begin your testimony, we are ready to hear it.


TODD COUNTY, MISSION, S. DAK. Mr. BARNEs. Thank you, Senator Abourezk. I would like to introduce the other members of the panel : Mr. Les Klevan, chairman of the education committee for the house of representatives, Pete Rabenberg, superintendent of Sisseton public schools and Keith Taylor, president of board of directors of the Associated School Boards of South Dakota.

I have a short statement which I would like to read and then speak to specific points.

Senator ABOUREZK. It seems that you have left out somebody

Mr. Barnes. This is Sam Sears who came in with us. We have one additional person who came in. Pete, would you like to introduce

Mr. RABENBERG. This is Leroy Helwig, chairman of the school board.

Senator ABOUREZK. Would you like to come up and join the panel, Leroy!

Mr. BARNES. On behalf of the Association of Federally Impacted Schools of South Dakota, the State Board of Education, the Associated School Boards of South Dakota, and the chairman of the house education committee, South Dakota State Legislature, we would like to express gratitude to you, Senator Abourezk, chairman of the Subcommittee on Indian Affairs for extending an invitation to us to state our concerns with the proposed rules and regulations promulgated by the Departments of the Interior and Health, Education, and Welfare to implement Public Law 93–638, the Indian Self-Determination and Assistance Act.

In your letter of instructions and ground rules, Senator Abourezk, you asked us to identify the major issues we perceive in connection with the proposed rules and regulations. You also asked us to respond to several questions raised by the committee in connection with said rules and regulations.

The major issues we perceive with the proposed rules and regulations center around part 403 dealing with education contracts under Johnson-O'Malley Act, but more specifically the powers and duties of the Indian Education Committee in relation to the school operational support programs, the arbitrary 75 percent and 51 percent eligibility requirements and the visitation of State education officials to public schools located on Indian reservations or tribal lands.

We feel that only one question posed by the committee would be applicable to us and that is :

Do the regulations governing Federal Assistance for education (including educational services and school construction) of Indian children in public schools and in tribal or Indian-operated schools deal fairly with the various types of organizations which are eligible for such assistance?

Speaking primarily for those public school districts which are either eligible or have a proven need for assistance in the form of operational support, we would emphatically say that we are not being dealt with fairly under the proposed rules and regulations.

While we fully support and encourage the concept of parental involvement in educational programs affecting their children, we cannot agree that rules and regulations which would permit a lay committee to usurp the powers and responsibilities of a lawfully established and duly elected Board of Education of a public school district are fair.

We cannot accept as fair treatment rules and regulations which would eliminate schools with major Indian student impaction from financial support for basic program needs.

Further, we cannot accept as fair treatment a rule or regulation that, could in its extreme, prohibit visitations by State educational officials into public schools located on Indian reservations thereby bringing about loss of accreditation and financial assistance.

We would seriously question, that it was the intent of Congress when Public Law 93-638 was passed, that rules and regulations would be adopted which would provide the potential to bring about the destruction of every public school district located on an Indian reservation. If this was indeed the intent of Congress, then it should have been so stated in clear and unmistakable language in the law itself rather than be left to agency or department rules.

We would now like to speak more specifically and first I would call on Mr. Kleven.

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Mr. KLEVEN. I am State Representative Les Kleven, of Sturgis, S. Dak. I represent district 21 in the South Dakota House of Representatives where I serve as the chairman of the House Education Committee. Further district 21 encompasses Meade and Ziebach Counties, with Ziebach County composed of about 50 percent Indian reservation and 50 percent non-Indian population.

The purpose of my testimony is to call your attention to the fact that the proposed rules are in direct conflict with the South Dakota constitution and the laws of the State of South Dakota. I feel very strongly it is wrong for Federal rulemaking to supersede the power of my State-its constitution and South Dakota law.

I will file with the clerk an official opinion of the attorney general of South Dakota, No. 75–174, which confirms the questions that I have about conflicts between the proposed rulemaking and South Dakota law.

Section 1, article VIII of the South Dakota constitution reads as follows:

The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.

It is obvious to me as a legislator that these regulations transplant the authority given to me as a legislator into the hands of an Indian education committee, which is not mandated by South Dakota law, duly passed by our legislature.

The conflicts with South Dakota law are many, for example, SDCL 13–1-12, states that the policy for "school classification and accreditation" clearly rests with the State board of education, and that board shall have the power to establish the standards-approving and accrediting elementary, secondary, adult education in both public and nonpublic schools.

Your proposed regulations certainly conflict with this section of South Dakota law, mandated by our constitution.

SDCL 13–1–25, again clearly states thatGeneral supervision of elementary and secondary schools.-Subject to policies established by the State Board shall exercise supervisory control over the acts and doings of the school board pertaining to the management and conduct of such schools.

SDCL 13–3-47, clearly states that it shall be the duty of the superintendent of elementary and secondary education to classify and accredit elementary and secondary schools in South Dakota.

SDCL 13-5-1 and 13-8-1, set forth the fact that school boards will have absolute power over the schools of our State. SDCL 13–8–1 further quoting now states:

School board defined.-The school board is an elected body created according to the laws of the state to serve as the governing board of a school district for the purpose of organizing, maintaining, and locating schools and for providing educational opportunities and services for all citizens residing within the school district.

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