Mr. Lester S. Jayson
August 8, 1975
Page 2

5. The Secretary of the Interior and the Secretary of Health, Education and Welfare, pursuant to Sections 102 and 103, respectively, upon the request of any Indian tribe, are directed to enter into a selfdetermination contract. Is this mandatory requirement compromised in any manner by either of the two Departments' proposed rules and regulations?

6. Sections 102 and 103 authorize the appropriate Secretary, under speci-
fied conditions, to decline a tribal request to enter into a self-deter-
mination contract. In approving the language authorizing a declination
process, the Committee endeavored to strike a balance between its
desire to establish a true self-determination policy and, yet, at the
same time, preserve the right of public officials to decline to enter
into self-determination contracts which would not be in the best
interests of the tribal beneficiaries and the Federal government.
The language is designed to place the burden of proof on the appropri-
ate Secretary in his exercise of this authority.

The Committee would appreciate a critical analysis of the rules and regulations governing Sections 102 and 103 to make certain that the delicate balance described in the preceding paragraph is maintained.

7. Sections 104(a) and (b), authorize the Secretary of the Interior and
Secretary of Health, Education and Welfare, respectively, to make
grants to tribes for a variety of activities designed to facilitate and
enhance their participation in the self-determination policy. I would
appreciate an examination of the proposed rules and regulations to
determine if the proposed procedures meet the intent of the Act.
Unfortunately, the Department of Health, Education and Welfare
failed to draft rules and regulations for Section 104(b)(2). How-
ever, the Committee has instructed the Secretary of the Department
to submit such rules and regulations at the earliest possible date.
The Committee staff will forward them to you as soon as we have
received them here in the Committee.

8. The Committee views all the provisions in Section 106 as critical
supporting elements to the implementation of a successful Indian
self-determination policy. Therefore, we would appreciate your
analysis including a critical review of these provisions in order to

Mr. Lester S. Jayson
August 8, 1975
Page 3

make certain the intent of the Act is met.

Title II The Indian Education Assistance Act

1. Do the regulations assure that the educational plan submitted by the prospective Johnson-O'-Malley contractor contains educational objectives which adequately address the educational needs of Indian students as required in Section 202 of Public Law 93-638. If so, are these requirements excessive or reasonable?

2. Are the powers and duties assigned to Indian parent committees
reasonable or excessive? Do the responsibilities assigned to the
parent committees by regulation involve matters normally the
perogative of a school board or school administrator?

3. Under Section 204, a program is established to provide funds to reservation public school districts qualifying under Public Law 815. Public Law 815 is administered in the Department of Health, Education, and Welfare as a part of the Impact Aid Program. Do the regulations establish a working relationship with the Department of Health, Education, and Welfare and the Bureau of Indian Affairs as required by Section 204. If so, do the regulations establish excessive or reasonable requirements in expediting the priority list from the Department of Health, Education, and Welfare and the delivery of funds by the Bureau of Indian Affairs to a local school district.

In order that the best possible analysis be provided the Committee, I am offering complete latitude and flexibility to your staff in behalf of this request. They should not feel restricted to an exploration of the specific issues set forth in this letter. The Chairman of the Subcommittee on Indian Affairs has tentatively scheduled oversight hearings on the proposed rules and regulations on October 1 and 2, 1975. Therefore, the Committee would appreciate receiving the requested information at the earliest possible date.

Mr. Lester S. Jayson
August 8, 1975
Page 4

Should you wish further information on this matter, please have your staff contact Mr. Forrest Gerard of the Committee staff at 224-7143.

Subject: Analysis of BIA and HEW Regulations Implementing the Indian Self-Determination and Education Assistance Act

The following report is an analysis of draft regulations promulgated by the Department of Interior and Department of Health, Education and Welfare to implement the provisions of the Indian Self-Determination and Education Assistance Act, Public Law 93-638, 25 U.S.C.A. 450 et seq. (1975 Supp.). The regulations are issued pursuant to sections 107

and 207 of the Act.

The analysis will center on the conformity of the proposed regulations with the statutory provisions and legislative intent of the Act. The similarity between the Interior regulations and those of HEW will also be examined. Other, more specific questions which will be dealt with include the regulations' reflection of the mandatory requirements in the Act, treatment of the declination process in contracting in the regulations, sufficiency of the education plans required by Title II of the Act under the regulations, the nature of the Indian parent committees provided for in the regulations, and, the degree of HEW and BIA coordination in the handling of funds for reservation public school districts pursuant to section 204 of the Act.

TITLE I

A. Conformity of the Regulation With The

Terms and Intent of the Act

This section will examine those sections of the Act which set forth statutory requirements for contracts and grants and the contracting and grant process and determine whether such requirements are reflected in the regulations of BIA and HEW.

Definitions. Both the BIA contract regulations and grant regulations employ the key definitions of section 4 of the Act. 401.2; 402.2. The HEW regulations also reflect section 4's definitions with the exception of differing definitions for "tribal organization" in its contract and grant provisions. For purposes of the contract regulations, tribal organization is defined as in section 4 of the Act. 36.204(i). The grant regulations, however, require the legally established organization of Indians to be nonprofit. 36.102(d).

The Act does not require that organizational contractees or grantees be non-profit organizations. While the making of a profit by means of a self-determination contract or grant may not be contemplated by the Act, there seems to be no prohibition that organizations which contract or receive grants be non-profit. The distinction is demonstrated in the BIA regulations. Part 401 provides for the "application and approval process for non-profit contracts. 401.1(a). Tribal organizations eligible

to contract, however, are not limited to non-profit organizations and the definition in the BIA regulations follows section 4(c) of the Act.