Senator ABOUREZK. Les, if I can break in for a moment. This law and other laws in the South Dakota constitution you are talking about really come together and clash and I guess you know that. On the one hand, if you insist on following the South Dakota constitution to the letter, then you can do that but you can't expect Federal money, which is intended for Indians. If you don't accept as a school board in South Dakota, if you don't want to accept Federal money intended for Indians, then you are subject to a class action by someone who will say you are discriminating against Indians because you are refusing the Federal money intended for them. It is really a mixed bag and a serious problem that we have to address ourselves to and I don't know how to do it.

Mr. KLEVEN. I would like to respond to that but first I would like to go through the conflicts a little bit more. Then I would like to talk about some things going on in our State that could possibly resolve that conflict at a later time. The establishment of the responsibility for school attendance is clearly mandated to the proper authorities in South Dakota and is clearly set forth in our law. Teacher evaluation, the same way.

The attorney general states in his opinion to me dated a couple of days ago:

In South Dakota, the constitution places the duty on the legislature to establish and maintain a general and uniform system of public schools, the legislature has therefore enacted numerous statutes relating to education, a few of which are set forth above. In answer to your specific question, it is my opinion that there is conflict between certain proposed Federal regulations (part 403) to implement Public Law 93-638 and the statutes cited above and other statutes not cited herein.

Further, there are serious questions raised with the right of Federal bureaucratic officials to change, not by law, but by regulation, the affirmative statutes of the State of South Dakota. As elected and duly appointed officials of the State of South Dakota, school board members, the Office of the Governor and myself are bound to give precedence to carrying out the legal mandates of State law. (Signed) WILLIAM J. JANKLOW.

That letter is attached herewith. In way of summary, I would say this that certainly the problem, the one you enunciated so clearly, could be worked out if our State in the future, and a long time in the past, could provide adequate funding on a State level to provide equalization for those districts that don't have the assessed valuation and resources to provide education equally for all students across the State. As I read these regulations, laying it right on the line, there will be one or two schools in Indian communities that will severely be cut in funds because of an inability to meet the regulations as set forth. That will not provide an equal educational opportunity for anyone and I am of the opinion that if you withhold the effective date of these proposed regulations, we have a committee which I happen to chair which is meeting very actively and another member in this room is also a member of that committee, to work out a plan where the State might provide the adequate equalization funds so that there can be true equalization in our State. We are one of the lowest in the Nation, as you well know, providing only 13 percent State funding but that has not been changed in the last 50 years and it won't be changed in the next 10 minutes and it will take time.

The legislation has moved forward in this area and has the desire to solve some of the problems of equalization and we are working on it now. To close schools in the meantime isn't going to solve anything. [The prepared statement and attachment follow:]

STATEMENT OF LES KLEVEN, STATE REPRESENTATIVE, STURGIS, S. DAK.

I am State Representative Les Kleven, of Sturgis, South Dakota. 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% Indian reservation and 50% 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 number 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 a 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 non-public schools.

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

SDCL 13-1-25, again clearly states that "general 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."

SDCL 13-8-39 mandates management of the individual schools to the school board directing that the board will have the power to hire necessary personnel. It does not say anything about hiring personnel from a list of approved persons mandated by an Indian Education Committee. SDCL 18-10-2 again clearly sets all hiring policy with the elected school board.

SDCL 13-11-2 clearly sets forth that the school budget is a function of the school board.

SDCL 13-15-2, allows the state board of education to contract with the federal government for the education of Indian children, but it also clearly states that such education shall proceed under rules as the state board of education may establish.

SDCL 13-27-1 and SDCL 13-27-20 establishes the responsibility of the parent or guardian for school attendance. There is no provision in South Dakota law for some other group consenting to this action. The law clearly establishes the responsibility.

SDCL 13-43-26 sets forth that teacher evaluation is a function of school board. These are just a few of the conflicts between your proposed regulations and South Dakota law.

The Attorney General states in his opinion to me:

In South Dakota, the Constitution places the duty on the Legislature to establish and maintain a general and uniform system of public schools, the Legislature has therefore enacted numerous statutes relating to education, a few of which are set forth above. In answer to your specific question, it is my opinion that there is conflict between certain proposed federal regulations (part 403) to implement P.L. 93-638 and the statutes cited above and other statutes not cited herein.

Further, there are serious questions raised with the right of federal bureaucratic officials to change, not by law, but by regulation, the affirmative statutes of the State of South Dakota. As elected and duly appointed officials of the State of South Dakota, school board members, the Office of the Governor and myself are bound to give precedence to carrying out the legal mandates of state law. Signed William J. Janklow.

In my opinion as an elected legislator in a district that will be affected by these regulations, I feel compelled by my oath of office to state my feeling that these regulations deprive me and other legislators of our constitutional duty to control elementary and secondary education in the state by the enactment of laws, which the legislature has done. Now these laws are changed by not federal law, but federal rulemaking.

I hope that you will withhold the effective date of these proposed regulations until we can work with you in making a harmonious change in keeping with South Dakota Law.

Attached herewith is the official opinion of the South Dakota Attorney General No. 75-174.

STATE OF SOUTH DAKOTA,
OFFICE OF THE ATTORNEY GENERAL,
October 16, 1975.

Representative LESLIE J. KLEVEN,

Box 779,

Sturgis, S. Dak.

Official opinion No. 75-174. Conflict of proposed Federal regulations part 403 to implement Public Law 93-638 and South Dakota statutes.

DEAR REPRESENTATIVE KLEVEN: You have submitted the following factual situation:

"Proposed federal regulations (part 403) to implement P.L. 93-638 contain in part, the following:

§ 403.15 Establishment of Indian Education Committee.

(a) When a school district to be affected by a contract (s) for the education of Indians pursuant to this Part has a local school board composed of a majority of Indians, that school board will serve in place of an Indian Education Committee for the purposes of this Part. The school board shall have the duties and powers given in § 403.16 and shall have approval authority over the programs to be contracted as given in § 403.17.

(b) When a school district to be affected by a contract (s) for the education of Indians pursuant to this Part has a local school board not composed of a majority of Indians, the tribal governing body (s) of the Indian tribe (s) affected by the contract (s) under this Part shall specify one of the following entities to serve as the Indian Education Committee for the purpose of this Part:

(1) An Indian Education Committee to be elected from among the parents (including persons acting in loco parentis except school administrators or officials) of eligible Indian students enrolled in the school (s) affected by a contract (s) under this Part; or

(2) A local Indian committee established pursuant to section 305 (b) (2) (B) (ii) of the Act of January 23, 1972 (86 Stat. 235) and existing prior to January 4, 1975; or

(3) An Indian advisory school board or Indian Education Committee established pursuant to the Johnson-O'Malley Act and existing prior to January 4, 1975.

(c) When the local school board is not composed of a majority of Indians and the tribal governing body (s) of the Indian tribe(s) affected by a contract(s)

under this Part determine which of the entities provided for in paragraph (b) of this section is to serve as the Indian Education Committee for the purpose of this Part, it shall notify the Area Director of such determination by January 15 preceding the school year for which the contract will be let.

(d) The Indian Education Committee established under paragraph (b) of this section and its members shall establish procedures under which the Committee shall serve. Such procedures shall be set forth in the Committee's organizational documents and by-laws. Each Committee shall file a copy of its organizational documents and by-laws with the appropriate Area Director, together with a list of its officers and members as soon as practicable after the Committee is organized.

(e) The existence of an Indian Education Committee shall not limit the continuing participation of the rest of the Indian community in all aspects of programs contracted under this part.

§ 403.16 Powers and duties of Indian Education Committee.

(a) Consistent with the purpose of the Indian Education Committee, each such Commitee shall be vested with the authority to:

(1) Participate fully in the planning, development, implementation, and evaluation of all programs, including both supplemental and operational support, conducted under a contract or contracts pursuant to this Part. Such participation shall include further authority to:

(i) Recommend curricula, including texts, materials, and teaching methods to be used in the contracted program or programs.

(ii) Approve budget preparation and execution.

(iii) Recommend criteria for employment in the program.

(iv) Nominate a reasonable number of qualified prospective educational programmatic staff members from which the contractor would be required to select.

(v) Evaluate staff performance and program results and recommend appropriate action to the contractor.

(2) Approve and disapprove all programs to be contracted under this Part. All programs contracted pursuant to this Part shall require the prior approval of the appropriate Indian Education Committee.

(3) Secure a copy of the negotiated contract(s) which include the program(s) approved by the Indian Education Committee.

(4) Recommend to the appropriate Bureau contracting officer cancellation of a contract (s) which contains the program(s) approved by the Indian Education Committee if the contractor fails to permit such Committee to exercise its powers and duties as specified by this section.

(b) The organizational papers and by-laws of the Indian Education Committee may include additional powers and duties which would permit the Committee to: (1) Participate in negotiations concerning all contracts under this Part. (2) Make an annual assessment of the learning needs of Indian children in the community affected.

(3) Have access to all reports, evaluations, surveys, and other program and budget related documents determined necessary by the Committee to carry out its responsibilities, subject only to the provisions of § 403.50.

(4) Request periodic reports and evaluations regarding the Indian education program.

(5) Head grievances related to programs in the education plan.

(6) Meet regularly with the professional staff serving Indian children and with the local education agency.

(7) Hold committee meetings on a regular basis which are open to the public.

(8) Have such additional powers as are consistent with these regulations. (c) A local school board composed of a majority of Indians and serving in place of the Indian Education Committee as prescribed in § 403.15 (a) shall have the same powers and duties as given in this section.

§ 403.17 Programs approved by Indian Education Committee. (a) All programs contracted under this Part shall:

(1) Be developed and approved in full compliance with the powers and duties of the Indian Education Committee as set out in § 403.16 and as may be contained in the Committee's organizational documents and by-laws. (2) Be included as a part of the education plan provided for in § 403.14.

(b) No program contracted pursuant to this Part shall be changed from the time of its original approval by the Indian Education Commitee to the end of the contract period without the prior approval, in writing, of the Committee.

(c) Programs developed or approved by the Indian Education Committee pursuant to this Part may, at the option of such Committee, include funds for the performance of Committee duties, including the following:

(1) Members' attendance at regular and special meetings, workshops and training sessions, as the Committee deems appropriate.

(2) Such other reasonable expenses incurred by the Committee in performing its primary duties, including the planning, development, implementation and evaluation of the program.

(d) A local school board composed of a majority of Indians and serving in place of the Indian Education Committee as prescribed in § 403.15 (a) shall perform all the functions that the Committee is required or authorized to perform in this section.

§ 403.32 Pro rata requirement.

All monies provided by a contract pursuant to this Part, shall be expended only for the benefit of eligible Indian students. Where students other than eligible Indian students participate in programs contracted under this Part, money expended under such contract shall be prorated to cover the participation of only the eligible Indian students, except where the participation of noneligible students is so incidental as to be de minimus.

§ 403.46 Indian preference.

(a) Any contract made by the Bureau with a State, school district or Indian corporation shall provide that the contractor shall, to the greatest extent feasible, give preference in and opportunities for employment and training to Indians.

(b) Any contract made by the Bureau with a State, school district or Indian corporation shall provide that the contract shall, to the greatest extent feasible, give preference in the award of subcontracts to Indian organizations and Indianowned economic enterprises.

(c) All subcontractors employed by the contractor shall, to the extent possible, give preference to Indians for employment and training and shall be required to include in their bid submission a plan to achieve maximum use of Indian personnel.

§ 403.53 State school laws.

In those States where Public Law 83-280, 18 U.S.C. 1162 and 28 U.S.C. 1360 do not confer civil jurisdiction, State employees may be permitted to enter upon Indian tribal lands, reservations, or allotments if the duly-constituted governing body of the tribe adopts a resolution of consent for the following purposes:

(a) Inspecting school conditions in the public schools located on Indian tribal lands, reservations, or allotments.

(b) Enforcing State compulsory school attendance laws against Indian children, parents or persons standing in loco parentis."

You have requested an opinion on the following question:

Do the proposed federal regulations (part 403) to implement P.L. 93-638 conflict with South Dakota statutes?

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. SDCL 13-1-12 reads as follows:

Policies for school classification and accreditation-Ensuring performance of statutory powers and duties.-The state board of education shall have the power and duty to establish rules and policies for execution by the executive officer of the state board as are necessary to:

(1) Establish standards for classifying, approving and accrediting elementary, secondary, adult education, kindergarten, primary, and summer schools, both public and nonpublic;

(2) Ensure the performance of such powers and duties as assigned to it by statute.

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