THE FOLLOWING IS A SUMMARY OF THE COMMENTS, SUGGESTIONS, AND
OBJECTIONS BY THE MEMBERS OF THE SHOSHONE-BANNOCK TRIBAL ED-
UCATION COMMITTEE (REPRESENTING 3,000 INDIAN PEOPLE) CONCERNING
THE EDUCATION PROVISIONS OF P.L. 93-638.

WE FEEL THE EXPANSION OF THE REGULATIONS TO INCLUDE EDUCATIONAL
AGENCIES OTHER THAN THE PUBLIC SCHOOLS WILL WORK TO THE DETRIMENT
OF THE FUNDING FOR THE PUBLIC SCHOOL PROGRAMS. THE ORIGINAL
SCOPE AND PURPOSE OF THE JOHNSON O'MALLEY PROGRAM WAS TO AID
INDIAN CHILDREN IN PUBLIC SCHOOLS AND, WE BELIEVE, THIS INTENT
MUST BE UPHELD. "PREVIOUSLY PRIVATE SCHOOLS" AND BOARDING SCHOOLS
SHOULD HAVE THEIR OWN SEPARATE LINE ITEM FUNDING.

SECTION 403.12. WE FEEL THAT THE WORDING "FROM EARLY CHILD-
HOOD" IS TOO BROAD A DEFINITION. INASMUCH AS THE EDUCATION FUNDS
CONTINUE TO BE SO LIMITED, WE PREFER THAT ELIGIBILITY BE LIMITED
TO KINDERGARTEN THROUGH GRADE TWELVE.

SECTION 403.13. WE OBJECT TO THE INCLUSION OF "OPERATIONAL SUP-
PORT PROVISIONS IN THE GENERAL REGULATIONS." WE BELIEVE THAT
THESE SUPPORT PROVISIONS SHOULD BE SEPARATED FROM THE REST AND
SHOULD BE FUNDED BY THEIR OWN ALLOCATION.

SECTION 403.31. WE MOST STRENOUSLY DISAGREE AND OBJECT TO THAT
PART OF THE DISTRIBUTION FORMULA WHICH STATES "WITH ALLOWANCES
BEING MADE FOR THE ACTUAL COST OF DELIVERING EDUCATIONAL SERVICES
IN EACH STATE." THE FOLLOWING WORDING IS RECOMMENDED INSTEAD.

PAGE TWO

PUBLIC LAW 93-638

DISTRIBUTION FORMULA

IT IS RECOMMENDED THAT UNDER SECTION 403.31 FUNDS WITHIN EACH
STATE MAY BE DISTRIBUTED AMONG THE CONTRACTORS SO THAT EACH
CONTRACTOR WILL RECEIVE APPROXIMATELY THE SAME AMOUNT FOR EACH
ELIGIBLE INDIAN STUDENT TO BE SERVED UNDER THE CONTRACT TO
ESTABLISH A MINIMUM FUNDING BASE. THE COMMISSIONER SHALL MAKE
AVAILABLE ADDITIONAL FUNDS TO INDIVIDUAL CONTRACTORS ON THE BASIS
OF SPECIAL NEEDS OF THE COMMUNITIES INVOLVED AND THE STUDENTS
SERVED UNDER THE PROGRAM. SPECIAL NEEDS INCLUDE, BUT, ARE NOT
LIMITED TO PROBLEMS RISING FROM CULTURAL LINQUISTIC, SOCIAL
AND GEOGRAPHIC ISOLATION, AND THOSE IDENTIFIED BY THE SCHOOLS
AND COMMUNITIES AFFECTED. FUNDS OVER AND ABOVE THE MINMUM
FUNDING BASE BE MADE AVAILABLE THROUGH ADDITIONAL APPROPRIATIONS
REQUESTED TO MEET THE SPECIAL EDUCATIONAL NEEDS HEREIN STATED.

THIS DISTRIBUTION PATTERN IS CONSIDERED TO BE MORE REALISTIC
IN MEETING THE NEEDS OF INDIAN CHILDREN LOCATED IN STATES HAVING
A LOW PER PUPIL EXPENDITURE BY PROVIDING FOR EQUITABLE TREATMENT
AND HIGHER QUALITY PROGRAMS THAN WOULD BE ALLOWED UNDER THE PRESENT
PROPOSED RULES AND REGULATIONS.

403.16 (b). (2), (3) and (4). WE BELIEVE THESE PROVISIONS ARE AMBIGUOUS WHEN CONSIDERED TOGETHER WITH THE PROVISIONS OF SECTION 403.50. OUR PRESENT JOHNSON O'MALLEY COMMITTEE IS CURRENTLY HAVING CONSIDERABLE DIFFICULTY IN OBTAINING FROM THE SCHOOL DISTRICT ADMINISTRATION NAMES OF ELIGIBLE INDIAN STUDENTS INVOLVED IN THE JOHNSON O'MALLEY PROGRAMS AND OTHER REPORTS NECESSARY TO PROPERLY CARRY OUT THE POWERS AND DUTIES OF THE INDIAN EDUCATION COMMITTEE. THEREFORE, WE THINK IT NECESSARY TO VERY PRECISELY LIST WHICH REPORTS, EVALUATIONS, ETC., TO WHICH THE COMMITTEES SHALL HAVE ACCESS.

THANK YOU VERY MUCH FOR YOUR CONSIDERATION ON THESE MATTERS.

SINCERELY

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Traefined.

MAXINE EDMO, CHAIRPERSON
SHOSHONE-BANNOCK TRIBES

EDUCATION COMMITTEE

CC: SUZAN HARJO, NCAI

COALITION OF INDIAN

CONTROLLED SCHOOL BOARDS, INC.

Senator ABOUREZK. Mr. Parker.

STATEMENT OF ALAN PARKER

Mr. PARKER. Mr. Chairman, the Indian Self-Determination and Education Assistance Act has been widely recognized as an outstanding effort on the part of the 93d Congress and particularly this subcommittee to strengthen the processes of self-government of Indian tribes. We feel that the Bureau of Indian Affairs has made a sincere and commendable effort to secure the input of Indian tribes and organizations in the drafting of regulations to implement this act. In general, these regulations reflect that input and that effort. Most assuredly there are problems with these regulations and we intend to address some of these problems in testimony this morning. However, we wish to point out that we recognize the amount of time and effort expended by the BIA staff in drafting what is overall an exceptable set of regulations to implement an excellent piece of legislation.

In our judgment, if the Indian Self-Determination Act is to be successfully implemented through it, the most important issue to be considered is not directly related to the regulations themselves, but is nevertheless of the most crucial importance at this time. We are referring, of course, to the level of funding available to the Federal agencies to put this legislation into effect. While we acknowledge that this subcommittee is not charged with an appropriation function, nevertheless, we would suggest that it is quite appropriate for the subcommittee to concern itself with the administration's budgetary plans for implementing this committee's legislation.

Senator ABOUREZK. I might remind you that this subcommittee has no authorization or authority over the implementation of these plans. All we have is oversight authority by virtue of the Act of November 2, 1921, 48 Stat. 596, which gave the Bureau of Indian Affairs an open ended budget authorization. The only committee they really have to go to now is the appropriations committee. They don't have to appear before this committee for their appropriations.

Mr. PARKER. I am aware of that, Mr. Chairman, and I was about to suggest that next week, when you have the opportunity to question administration witnesses, that both the Interior Department and OMB fiscal plans for implementing the regulation be scrutinized to the extent you feel it would be appropriate and within the jurisdiction of your committee.

With respect to section 104 of the act, grants to Indian tribal organizations, we note that subsection (C) specifies that “funds made available to tribal organizations under this section may be used as matching shares for any other Federal grant programs which contribute to the purposes for which grants under this section are made.” This section is implemented by section 402.12, purposes of grants, and section 402.33, matching shares, of the proposed regulations.

The American Indian Law Center of Albuquerque, N. Mex., has been involved in a study entitled "Federal Indian Domestic Assistance Programs" (FIDAP) for the purpose of establishing the precise legislative barriers which may exist or which have been interpreted to limit tribal participation in Federal domestic assistance programs. The focus of this study has been on congressional legislative

eligibility requirements. The FIDAP study research findings will be made available to tribes: (1) To increase tribal participation overall in Federal domestic assistance programs; and (2) particularly as a strategy to open up such programs for tribal participation. The FIDAP study has established that approximately $48 billion is appropriated annually for Federal domestic assistance programs, and it is clear that the potential for tribal participation in these previously closed programs, or programs previously closed to tribes, will be immeasurably increased if section 104 grant funds are available for matching purposes at a realistic level.

We have a checklist of regulation provisions about which we have questions or comments. I will briefly indicate those particular points and come back and try and address some comments to each of them.

First of all, there is section 401.2, the definition provision and the issue of a definition of a trust responsibility. Sections 401.18 through 401.21, the role of the tribal council in reviewing and approving contract applications by tribal organizations. Section 401.74, the reassumption provision and particularly the definition of violation of rights. Section 401.54 and appendix A to section 406, part 2, No. 16, attorney fees. Section 401.49 sub C, the monthly reporting requirements imposed upon tribal governments. Section 401.81, the hearing procedures and section 401.74, retrocession.

Prior to going into any detailed discussion of these points, there are a few in general, budgetary or fiscal questions which are not clarified at all in the regulations as far as we were concerned. These questions are primarily in two different areas.

No. 1, the regulations do not give any hint as to the relationship between contract funds, or funds made available for contracts and the band analysis system presently utilized by the Bureau. We feel that tribal governments who are anticipating or planning to enter into contracts should be informed by the administration just what is the relationship between the present band analysis system which the administration utilizes and the plans for funding contracts.

The other general budgetary question that we feel is left unclarified as far as regulations are concerned is the relationship between presently existing funding levels on a line item basis which have been used to define the level of services which are provided and funding levels which will be imposed upon contracts under this act.

Returning to our checklist of provisions about which we had questions, definition of trust responsibility. This is defined in section 401.2. Initially, when NCAI and other members of the task force analyzed the definition of trust responsibility in the proposed regulations, we were dismayed by its seemingly narrow focus and negative interest. We felt that, insofar as the act itself called upon the administration to come forth with a definition of trust responsibility, that this should not be the opportunity for a narrow legalistic definition.

However, upon reconsideration and analysis of the purposes for which this definition is offered, we feel that the narrowly defined definition offered in the regulations is acceptable if it is understood as being for the limited and technical purposes only of indicating that set of functions

Senator ABOUREZK. Do you have an alternative definition that you are suggesting?

Mr. PARKER. We had suggested an alternative definition which would include language to the effect that the Bureau's trust responsibility, including ideas like supporting and preserving the right of tribal self-government and being charged with an advocatory responsibility to check those resources.

But the point I was making is that upon reconsideration, we feel that this narrow technical definition offered in the regulations is acceptable if it is understood that it is only for the purpose of indicating that core trust responsibility which cannot be contracted by the Bureau without abrogation of its trust role.

If this definition restricts the Bureau to a very core set of functions, this will provide greater flexibility as far as tribes are concerned and any plans they may have for contract functions which border on the trust role as far as the development of natural resource potential. If we have a broadly phrased definition, it could be interpreted by the administration to prohibit contracts which might otherwise be very beneficial to the tribes.

Sections 401.18 through 401.21 deal with the role of the tribal council in reviewing and approving applications by tribal organizations. The point we wish to make here is that the regulations spell out that the tribal council has a review and more or less veto power over contract applications by tribal organizations which are in some way or another separately constituted from the tribal government themselves.

We feel that the provision which would allow for a tribal government body to exercise the veto power over these kinds of contracts, contracts by tribal organizations which are not part of the tribal governments themselves, is a necessary part of the regulations and we would oppose any change in the regulation which would in some way or another provide for contracting by tribal organizations completely outside the scope of the review and approval authority of the tribal council.

Section 401.74, the section on reassumption, in general this provision provides that the administration or Bureau of Indian Affairs can reassume services where the contractor has, in the performance of his contract, violated the rights of any person or engaged in acts which might be detrimental, cause an immediate threat of safety and other kinds of language.

The particular cause we are concerned with is the provision that calls for reassumption upon a violation of rights, in quotation marks. Senator ABOUREZK. It is subsection 1.

Mr. PARKER. Subsection 1 of section 401.74.

Senator ABOUREZK. What is your particular concern with that section?

Mr. PARKER. We feel to invest authority in a contracting officer to reassume service when a tribe is engaged in a violation of rights should be clarified. Violation of rights, if you consider what that might mean can only mean something in the nature of fundamental civil rights. Our concern is that this clause may not be interpreted to be grounds for contract reassumption for violations of civil rights which are not interpreted within a context of existing law.

Primarily, we are referring to the Indian Civil Rights Act and other relevant law that follows that same trend. Basically, what we are say