The Indian Health Service is taking the position under the cover of not having said in the proposed Regulations whether and how 93-638 will apply to existing Contracts, that 93-638 will not automatically apply, that only a tribal council or a "tribal organization" as an instrument of or with the endorsement of a council can invoke 93-638 regarding existing Contracts, renewals of such Contracts or new Contracts. By logical extension of that statement then we would presume that they are saying that the IHS (in wanting to have the flexibility to continue to use the Buy-Indian Act authority) will continue to use the BuyIndian Act by preference to effect Contract renewals and amendments of existing Contracts and new Contracts-with Indian organizations, unless the new Contract proposal or proposed amendment is initiated by a Tribal Council Resolution.

The effect of this decision would exempt current contractors and new contracts from most of the desirable features of 93-638. A key feature of 93-638 is the affirmation and reinforcement of Tribal Sovereignty through the requirement for tribal governing body clearance for contract proposals.

The Indian Health Service would seem to be taking a position that would exempt contractors which would ordinarily have to qualify under 93-638 as a "tribal organization" from seeking tribal clearance as a routine measure. The only way a tribe or consortium of tribes could invoke 93-638 in opposing such action would then be to present a competing proposal by Tribal Resolution or to protest a contract award through administrative channels, or to institute legal action enjoining IHS from contracting contrary to the letter and intent of PL 93-638, and contrary to the intent of Buy-Indian Act.

IHS is not, however, making public its position regarding its preferencce for continued use of Buy-Indian Act.

It has been argued by some members of IHS staff that PL 93-638 is the primary and preferred contracting authority for IHS in contracting with Indian organizations for health service functions, in which case IHS would act affirmatively to invoke the requirements of 93-638 for tribal clearances.

The key factor in determing whether the IHS position regarding how and when 93-638 is invoked is whether it is the preferred contracting authority and whether the regulations of 93-638 should apply uniformly in precontract dealings with organizations which presumably could qualify as tribal organizations as defined in 93-638.

The answer to the question of whether it is a preferred authority or even a mandatory authority lies in the legislative history of 93-638 and even further back in the history and intent of the Buy-Indian Act of 1910.

The Senate Committee Report states that the major purpose of 93-638 is to provide Tribes a means to implement self-government, i.e., tribal sovereignty. The need for 93-638 was recognized by the committee by declaring that it was designed to provide a direct statutory authority for contracting of Federal programs by Indian Tribes because the BIA and IHS in expanding contracting with tribes had strained the statutory language of Buy-Indian, JOM, Snyder, and the Act of 1834 beyond the original intent of those laws. Since Buy-Indian is listed as being strained presumably IHS was also stretching the intent of Buy-Indian.

If you examine the intent of Buy-Indian, we think you can get an idea of the original intent of Buy-Indian and how far IHS had stretched it and why PL 93638 was meant to supplant Buy-Indian as a preferred authority for IHS in contracting for the various health service programs with Indian organizations and Tribes.

The HEW regulations on Buy-Indian state the policy of IHS to use the negotiating authority of Buy-Indian to give preference in award of contract to Indians (such preference exempts IHS from the usual requirement for competition in award of federal contracts).

The Buy-Indian Act was enacted in 1910. What was the intent of Congress in 1910? What was it that BIA was desirous of purchasing from Indians in 1910 that it should be given authority to waive the advertising requirements then in effect regarding federal procurements of supplies.

The Buy-Indian Act provides: "So far as may be practicable, Indian Labor shall be employed, and purchases of the products of Indian industry may be made in open market in the descretion of the Secretary of Interior."

It would appear that the original intent would be to allow the BIA to purchase Indian Labor on certain projects and to purchase supplies from Indian individuals or tribes or businesses without advertising.

Clearly the BIA was not in the wide scale business of either providing or contracting for health, education, or other social programs. The direct statutory

authority directing the Secretary to provide such service did not come until 1921 under the Snyder Act.

The DHEW regulations interprets the Buy-Indian Act authority to apply to the purchase of products of Indian industry in maintenance and operation of hospital and health facilities and (in operation of programs for) conservation of the health of Indians.

The DHEW definition of "Indian firm" used is heavily business oriented. Ordinarily a business is some sort of economic enterprise.

A "Product of Indian Industry" is defined as anything produced by Indians through physical labor or intellectual effort involving use of application of skills. We therefore, inasmuch as IHS is silent on a policy statement which would clarify Congressional intent, urge this Committee to instruct the IHS to incorporate a policy statement into their Regulations. In view of the clarity of Congressional intent and the need to minimize confusion, we recommend that IHS adopt the same policy statement as the BIA (Section 401.4) and add paragraph (h) which would indicate that PL 93-638 is the preferred authority for Contracting.

We likewise recommended that Section 401.19 of the BIA Regulations be incorporated into the IHS Regulations, in total.

The following is in response to the five questions posed by the Committee: 1. Neither the BIA 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 seem 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 organization, 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 non-profit 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 PL 93638 provides for options to fund a multi-tribal organization, no authority exists for Tribes to create a multi-tribal corporation.

The only alternative is to incorporate multi-tribal organizations under State Law, thus exposing tribal sovereignty to the potential danger of State intrustion. Not only is Tribal sovereignty jeopardized, but, the potential of liabilities under State Laws are in conflict to this Governments trust responsibilities.

We urgently request, this Committee, to consider establishing authority in the Regulations or, if necessary, by legislation, granting authority for multi-tribal 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, or 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 $9,000.00. The BIA Regulations further provide (401.15-(z)) for an initial planning grant of 10% of the minimum allocation. Small tribes would then receive $900.00 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 programming 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.

Mr. FORREST. At this time, Byron Graves will present the education portion.

STATEMENT OF BYRON L. GRAVES, RED LAKE RESERVATION

TASK FORCE

Mr. GRAVES. Mr. Chairman, members of the subcommittee, my name is Byron L. Graves. I am a member of the Red Lake Band of Chippewa Indians and a member of the Red Lake Reservation task force which is testifying in behalf of the National Tribal Chairman's Association in regard to the oversight hearing on rules and regulations promulgated to implement Public Law 93-638, the Indian Self-Determination and Education Assistance Act.

Since the numerous meetings have been held with respect to the drafting of the rules and regulations, our task force has been diligently involved in contributing evaluations and recommendations of the numerous drafts that have been formulated and we appreciate this opportunity to again be able to offer comments and recommendations for the amending and revision of the rules and regulations as they pertain to implementing title II of Public Law 93-638, the Indian Self-Determination and Education Assistance Act.

At the outset of our testimony we would like to present our objection to Public Law 93-638, the Indian Self-Determination and Education Assistance Act in form of a resolution which will be enacted by the Red Lake Band of Chippewa Indians and which we would appreciate having inserted into the record.

Senator ABOUREZK. When will you have that resolution adopted? Mr. GRAVES. We have a copy of it

Senator ABOUREZK. Has it been adopted already?

Mr. GRAVES. It will be adopted.

Senator ABOUREZK. How long do you think that will take?
Mr. GRAVES, Thursday.

Senator ABOUREZK. We will hold the record open for 30 days. I'm advised we can hold it open until the end of November. Please submit the resolution to the committee as soon as possible, and it will be made a part of this record.

Mr. GRAVES. We feel very strongly and apprehensive about some of the danger signals within the act to the extent that we are opposing any legislation that may be detrimental to the best interests of the members of the Red Lake Band of Chippewa Indians. To reiterate some of the remarks make by President Wendell Chino of the National Tribal Chairman's Association at a meeting held on the Red Lake Indian Reservation last week, Mr. Chino stated:

Tribal people should be on the alert of efforts to legislate Indians out of existence. We, as Indian people, have as much right as any other people to extend our culture and heritage into continued perpetuity. Protection should be intensified against legislation that will run over the Indian people. Continued protection should be effected for all Indian land and other natural resources through perpetuity.

The Red Lake tribal council and the Red Lake Reservation task force are in agreement with President Wendell Chino's remarks when he indicated that recognition of Indian tribes is basic stemming from recognition within the Constitution of the United States. Indian tribes are definitely recognized and spelled out in the document. Many people want to ignore this fact that there are over 200 tribes in America. We must stick to the Constitution. Indian tribes have been in existence before the establishment of the Constitution. We have an obligation, a constitutional obligation, to retain the rights afforded Indian people and to protect the Indian people from any danger of this obligation being reduced or taken away. Yet Senators and Representatives have continuously enacted legislation that contain danger signals that this obligation could be taken away.

We think we should go to these Senators and Representatives and say: "Mr. America-you have this obligation with respect to Indian tribes. Let us hang on to this obligation. This is what constituted the beginning principles in America. It is a basic principle."

Our task force is very concerned and apprehensive over the broadened definition of an Indian as prescribed in the act and implemented in the rules and regulations. This concern is shared by many reservation-based Indians throughout the country. We believe that this is a danger signal which has the effect of legislating Indians out of existence with the support of rules and regulations promulgated by the Secretaries of the Interior and Health, Education, and Welfare.

We are in accord with respect to the general principles and provisions of the act and the rules and regulations that expand the contracting authority of the Department of the Interior to include Indian tribes and organizations for educational services pursuant to the amendments of the act of April 16, 1934 (48 Stat. 596), as amended, (known as the Johnson-O'Malley Act).

Our task force has been vigilant in respect to the manner in which the provisions for the establishment of parental committees are carried out. We believe that it is the right of the Indian people to be involved in the programs that affect their lives, and it is important to consult with Indian tribal representatives in developing such regulations to assure that the methods developed for carrying out the provisions of the act are consistent with the desires and needs of the tribes affected.

We have been persistent in our efforts in requesting that the tribal governing bodies have the option to specify the school board to serve as the Indian Education Committee when the majority of the school board members are of Indian descent or the option of an organization of a governing body be designated to serve as the Indian Education Committee. We believe that these options would afford some flexibility to the diversity of Indian tribes as they enter into contracts with the Secretary of the Interior to assure that the educational needs of the Indian sudents who are to be beneficiaries of such contracts are met and to insure that funds expended in public school districts are in accordance with programs and plans which have been developed by the Indian tribes.

We have also been vigilant in appraising the effect of the legislated Johnson-O'Malley study and report by the Secretary of the Interior

would have on the development of a more rational and equitable policy and procedure to govern the Johnson-O'Malley Act.

It is our considered judgment that the report will be unreliable and unvalidated and will exemplify another danger signal in the process of legislating Indians out of existence. We strongly feel that in a short time that the study was made, it would result in recommendations that would be based on information and other data hurriedly surveyed and gathered within the time limits. It is a tremendous task to analyze even one school district that receives Federal funding from Federal finance systems resulting from Federal legislation involving five different acts within the report. If Indian tribes are expected to operate with the recommendation changes in various Federal financing systems, they should have the opportunity for input into the report. Our concern here is to point out that Indian tribes might be legislated out of existence resulting from a report that was hurriedly made in 3 or 4 months which involves the effect that it would have on over 200 tribes.

Senator ABOUREZK. Mr. Graves, the time period for this panel has expired and gone a little beyond. Under the agreement, we will insert your entire statement in the record. I regret having to cut you off like this except that there are so many witnesses and so many people.

Mr. GRAVES. Mr. Chairman, I have one more request. This concludes my testimony and I would like to reserve the privilege of adding an addendum and additional documents to this testimony.

Senator ABOUREZK. Yes; you certainly have that right to do that. I want to thank you all for appearing here. I thank my colleague from the House for coming over.

[The prepared statement of Mr. Graves follows:]

STATEMENT OF BYRON L. GRAVES, RED LAKE RESERVATION TASK FORCE

Mr. Chairman, members of the Subcommittee:

My name is Byron L. Graves. I am a member of the Red Lake Band of Chippewa Indians and a member of the Red Lake Reservation Task Force which is testifying in behalf of the National Tribal Chairman's Association in regard to the Oversight hearing on Rules and Regulations promulgated to implement P.L. 93-638, the Indian Self-Determination and Education Assistance Act.

Since the numerous meetings have been held with respect to the drafting of the rules and regulations, our task force has been diligently involved in contributing evaluations and recommendations of the numerous drafts that have been formulated and we appreciate this opportunity to again be able to offer comments and recommendations for the amending and revision of the rules and regulations as they pertain to implementing Title II of P.L. 93-638, the Indian Self-Determination and Education Assistance Act.

At the outset of our testimony we would like to present our objection to P.L. 93-638, the Indian Self-Determination and Education Assistance Act in form of a resolution which will be enacted by the Red Lake Bank of Chippewa Indians and which we would appreciate having inserted into the record.

We feel very strongly and apprehensive about some of the danger signals within the Act to the extent that we are opposing any legislation that may be detrimental to the best interests of the members of the Red Lake Band of Chippewa Indians. To reiterate some of the remarks made by President Wendell Chino of the National Tribal Chairman's Association at a meeting held on the Red Lake Indian Reservation last week, Mr. Chino stated, "Tribal people should be on the alert of efforts to legislate Indians out of existence. We, as Indian people, have as much right as any other people to extend our culture and heritage into continued perpetuity. Protection should be intensified against legislation that will run over the Indian people. Continued protection should be effected for all Indian land and other natural resources through perpetuity."