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 HAMMITT, 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, re

64-882 O - 76 - 17

peatedly, 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 with 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).

In 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.

Authority exists to create a tribal corporation within a tribe. While Public Law 93-638 provides for options to fund a multitribal organization, no authority exists for tribes to create a multitribal corporation.

The only alternative is to incorporate multitribal organizations under State Law, thus exposing tribal sovereignty to the potential danger of state intrusion. Not only is tribal sovereignty jeopardized, but the potential of liabilities under state laws are in conflict to this government's trust responsibilities.

We urgently request this committee to consider establishing authority in the regulations or, if necessary, by legislation, granting authority for multitribal organizations to incorporate in a manner consistent with trust responsibilities.

2. We are satisfied that reasonable procedures for hearings and appeals are provided for in the BIA regulations.

3. Neither the BIA or IHS identify the types of functions that are subject to contracting, nor is any attempt made to define functions that are not subject to contracting.

4. Generally speaking, the BIA grant regulations adequately provide grant assistance to encourage tribal self-determination except that small tribes may be excluded or severely handicapped. The most recent formula developed in the BIA for developmental grants provides for a minimum allocation of $9,000. The BIA regulations further provide (401.15-(z)) for an initial planning grant of 10 percent of the minimum allocation. Small tribes would then receive $900 for initial planning. This limited amount would preclude small tribes from developing any plans that might assure their full participation as was intended by Congress.

To date small tribes have been grossly overlooked in Federal programing and would continue to derive minimal benefit under current proposed grant allocations. This committee should direct the agencies to place greater emphasis on the needs of smaller tribes if equality in the developmental process is to be realized.

[The prepared statement of Mr. Forrest follows:]

STATEMENT OF ERIN FORREST, VICE PRESIDENT, NATIONAL TRIBAL CHAIRMEN'S

ASSOCIATION

On behalf of the National Tribal Chairmen's Association, we would like to express our appreciation for your invitation to participate in this very important hearing.

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.

1. There is wide spread 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 sets of Reegulations 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.

2. 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 with domination, etc. 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 non-committal 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 PL 93-638. These implications appeal 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 PL 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).

In 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 Regulations become effective on November 4, 1975. The BIA has taken the position in their proposed Regulations that 93-638 will apply to all Contracts in effect on November 4, in regard to any amendments or Contract renewals specifically requiring tribal governing body clearance for all Contract actions after November 4, and to exisitng Contracts with "tribal organizations." This would not necessarily apply to all BIA current contracts with Indian negotiations which were awarded under the authority of the Buy-Indian Act. Obviously, an independent Indian owned business firm would not qualify as a "tribal organization," so Buy-Indian Contracts with them would not be affected.