In every instance where a grant, loan or guaranty or insurance does not directly involve a defined reservation area the determination on whether it is an eligible transaction under the Indian Financing Act depends upon whether the transaction will have the impact upon such reservation areas required by the cited regulations. This is the standard required not only for Indians residing in States other than Alaska but also for Alaska Natives in Alaska. After reviewing, again, the legislative history of the Indian Financing Act we can come to no other conclusion. However, we perceive nothing in the Indian Financing Act or regulations to preclude special Alaska situations from being taken into account in determining whether a particular economic activity benefits an Alaska reservation area for the purpose of the Indian Financing Act. MORRIS THOMPSON, Commissioner. U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SOLICITOR, Juneau, Alaska, January 19, 1976. Memorandum. To: Area Director, BIA. From: Field Solicitor, Juneau. Subject: Eligibility of individual Tlingit and Haida members for guaranteed loan under the Indian Financing Act of 1974. This is in reference to your memorandum dated October 6, 1975, as supplemented on December 15, 1975, which asks for my opinion regarding the above subject. Your memorandum indicates that all Tlingit and Haida members are eligible to be members of their organization's credit union and that membership in the union requires a fee. The credit union is chartered by the U.S. Bureau of Federal Credit Unions. Your specific question refers to the eligibility of individual members of the Tlingit and Haida organization who are not members of the Tlingit and Haida Credit Union. 25 CFR 93.8 provides in relevant part follows: Indians who are members of tribes recognized by the federal government as eligible for services from the Bureau of Indian Affairs which are not making loans to its members and who are not members of or cligible for membership in an organization which is making loans to its members are eligible for guaranteed or insured loan. [emphasis added]. The above regulation is based on Section 101 of the Indian Financing Act of 1974, 25 U.S.C. § 1461, 88 Stat. 78, which also contains the following proviso regarding loans by organizations to its members from moneys borrowed from the Indian Revolving Loan Fund: Provided, That, where the Secretary determines a rejection of a loan application from a member of an organization making loans to its membership from moneys borrowed from the fund is unwarranted, he may, in his discretion, make a direct loan to such individual from the fund. The fund shall also be available for administrative expenses incurred in connection therewith. [emphasis added]. The fact that an Indian is a member of the Tlingit and Haida organization and not its credit union is not controlling since 25 CFR 93.8 clearly includes reference to those who are eligible for membership as emphasized above. A more difficult question is whether the "loans" made by an organization in 25 CFR 93.8 refers to loans in the case at hand which are not from the Revolving Loan Fund. You have also advised that no loans from the Revolving Loan Fund are currently available to members of the Tlingit and Haida organization. The above proviso in 25 U.S.C. § 1461 specifically refers to moneys borrowed from the Revolving Loan Fund and it could be argued that in reference to the language determining eligibility in 25 CFR 93.8, the failure to so define loans by tribal organizations means that if an Indian is eligible for any kind of tribal organization loan, he is not eligible for a guaranteed or insured loan. It is interesting to note, however, that in the legislative history of Section 101, the word "loans" is not specifically defined as loans from the Revolving Loan Fund as in the above-cited proviso. The relevant language is found at U.S. Code Congressional and Administrative News House Report No. 93-907, Second Session (1974) at 2876: 81-879-77-19 Section 101 provides for the consolidation of existing Indian revolving loan funds into one Indian Revolving Loan Fund. The Secretary is authorized to make direct loans from such fund to Indian tribes or organizations and to individual Indians who are not members of, or eligible for, membership in an Indian tribe making loans to its members provided that the Secretary is authorized to make direct loans to individuals who have been rejected for a loan by the tribe if such rejection is unwarranted. The fund can be used for administrative expenses. [emphasis added]. It is my opinion that the word "loan" was not specifically defined in the aboveemphasized portion of the House Report because of the intention that the only type of loans contemplated in Section 101 were those from the Revolving Loan Fund. Thus an Indian is prohibited from applying for a guaranteed or insured loan only if he is eligible for a loan from the tribal organization's Revolving Loan Fund. Since no such fund currently exists for the Tlingit-Haida organization, it is my opinion that members of said organization are eligible for guaranteed or insured loans. JOHN H. KELLY, ATTACHMENT 5 SOUTHEAST AGENCY ADMINISTRATION, April 14, 1976. Memorandum to: Agency superintendents. Attention: Credit and Financing. From: Area Director, Juneau. Subject: Fiscal year 1976 grant funds availability. To be eligible for consideration for a IBDP grant every applicant must meet all of the following requirements. 1. Must be an eligible enrolled individual Indian or an organization which is at least 51 percent eligible Indian ownership. (25CFR80.3) 2. Must be unable to meet their total financing need without securing a grant. (25CFR80.3) and (25CFR80.17) 3. Must have a form of organization acceptable to the Commissioner. (25CFR 80.3) 4. Must have all necessary legal authority to engage in their proposed enterprise. (25CFR 80.7) 5. Must have contributed all of his available assets to his proposed enterprise. (25CFR 80.17) 6. Must be self sustaining as evidenced by pro forma balance sheets, operating statements and cash flow statements. (80 BIAM 2.2D) 7. The proposed enterprise must be profit oriented. (25 CFR 80.4) 8. Must bring direct economic benefit to a tribe or individual Indians living on a reservation. (25 CFR 80.2) 9. Must create employment for Indians. (25 CFR 80.4) 10. Must be located on or near a reservation. (25 CFR 80.4) If near a reservation can only be considered as a second priority. (Fiscal year 1976 there will be no funding for second priority applicants-25 CFR 80.7) 11. The proposed enterprise must have tribal approval if it is to be on reservation (priority one) (25 CFR 80.7) 12. The applicant must be able to show that the required additional financing is either available or committed. (80 BIAM 1,80) 13. Must demonstrate technical ability to succeed. (25 CFR 80.17) 14. Must show how grant funds will be used. (Not for refinancing.) (25 CFR 80.17) 15. Second grants to same applicant must meet the additional requirements of 25 CFR 80.17 (g) · 16. Must show by pro forma financial statements that available capital, including the requested grant is adequate to allow the project to become self sustaining and have a strong likelihood of success. (80 BIAM 3.3) 17. Must show that there is a market for the product or service provided by the proposed enterprise. (80 BIAM 3.3) 18. The application must show that the applicant has developed a satisfactory plan of operation for the business. (Form 5-8003 D.2) 19. Should meet all other requirements of the BIAM. The above cited 19 items are required to be present before a person has a basis for making application for a grant. If the application fails to provide adequate information to demonstrate that the above 19 criteria are all positively in compliance then the application cannot be considered for funding because it is incomplete. In cases where agency credit staff have an incomplete application they should work to complete the application properly before presenting that application for consideration to the Area review committee. In addition to the above a reasonable ratio of Indian jobs created for grant dollars expended must still be maintained. The additional concept of comparison of the relative merit of competing applications will apparently not be applicable to the fiscal year 1976 Grant program in the Juneau Area. The initial commitment of funds to eligible applicants did not exhaust our entire appropriation for this fiscal year so we will continue to fund qualified applications from any agency so long as funds remain. CLARENCE ANTIOQUIA, Area Director. REPORT ON THE LEGISLATIVE HISTORY OF THE INDIAN FINANCE ACT Public Law 93-262, the Indian Finance Act, became the second of President Nixon's seven Indian measures to be enacted. President Nixon first introduced the "Indian Financing Act of 1970" to Congress in his Indian Message of July 8, 1970: "As I said in September of 1968, it is critically important that the Federal Government support and encourage efforts which help Indians develop their own economic infrastructure. To that end, I am proposing the Indian Financing Act of 1970" (The essense of Titles I & II of the act are found in the message). The President's Financing Act is encompassed in HR 18571 and S 4116. In order to gather by-partisan support for his bill, the President requested that both Democrats and Republicans introduce the legislation. To enhance the passage of his bill, the President sought the support of leading men on both the House and Senate Interior and Insular Affairs Committee. The leading Republican John Saylor of the House Interior and Insular Affairs Committee formally introduced HR 18571 on July 21, 1970, and Chairman Jackson of the Senate Interior and Insular Affairs Committee introduced S 4416 on July 23, 1970. Although the bills had the support of powerful men on both committees and, in addition, the backing of leading representatives from the Indian Affairs Subcommittee, the bills never came up for hearings primarily because the Subcommittees were preoccupied with other legislation which they regarded as more urgent (such as the Alaska Native Land Claims Act). Consequently, these two bills HR 18571 and S 4116 died in their respective Houses. In 1971, the President again initiated the action for an Indian Finance Act. Senator Jackson and Senator Abourezk introduced the Administration's proposals S 1013 the "Indian Financing Program of 1971" and S 1015, the "Indian Business Development Program Act." But again, both the Senate and House Subcommittees agenda was too busy with other legislation to hold hearings on these bills. In 1972, however, the Senate schedules hearings on S 2036 "Indian Finance Act of 1971" and S 2237 "Indian Business Development Program Act." The Department of Interior, on behalf of the Administration, submitted S 2036 to Congress April 13, 1971 and Senator Byrd (for Mr. Jackson, himself, and Mr. Allot) introduced the bill to the Senate June 9, 1971. The Department of Interior submitted S 2237 to Congress July 12, 1971, at which time Mr. Jackson introduced the bill to the Senate. Both bills were read twice, referred to the Committee on Interior and Insular Affairs, and then referred to the Senate Indian Affairs Subcommittee. August 1, 1972 the Subcommittee held hearings on both bills. During this hearing, the Senators discussed the possibility of combining the two programs (the Finance Program and the Indian Business Development Program) under one piece of legislation. The Assistant Secretary of the Interior, for Public Land Management Mr. Loesch, representing the Administration's view, testified against the adoption of such a union between the two programs. Aside from Mr. Loesch's testimony, a few Native leaders testified about the impact the legislation would have on their tribes. The hearing ended with a report on the Secretary of Interior's letter supporting the passage of this legislation. But with no action taken on the House side, the bills died in the 92nd Congress. In 1973, the Administration introduced legislation pertaining to these two programs, S 1341 the "Indian Finance Act of 1971". Similar legislation HR 5371, HR 6493, HR 9843, and HR 10562, was also introduced that Congress. With the increased interest among more representatives, the subcommittees in both Houses finally received the necessary impetus for serious consideration of the legislation. In the Senate, the subcommittee on May 31, 1973 held hearings on S 1341, S 1013 ("the Indian Finance Program of 1971), and S 1015 "The Indian Business Development Program). Because the language in S 1341 was unclear in several places, the Subcommittee voted to delete the language of S 1341 after the enacting clause and insert in lieu thereof the provisions of S 1013 and S 1915, and ordered the bill reported to the full Committee on June 11, 1973. The full Committee approved S 1341, as amended by the subcommittee with some further amendments on July 20, 1973. On July 28, Mr. Mansfield asked unanimous consent that the Senate consider S 1341, calender number 331. There being no objections, the Senate considered the bill. After an amendment had been agreed to the bill was ordered to be engrossed for a third reading, read the third time, and passed. The House proved to be not as successful as the Senate. On October 12, 1973 the House Subcommittee on Indian Affairs held a hearing on the various proposals for an Indian Finance Act: HR 6371, HR 6493, HR 9843, HR 10562 and S. 1341. During the hearing, John Kyle the Assistant Secretary of the Interior for Congressional and Public Affairs spoke favorably on the bill in behalf of the Administration. Various Native leaders testified on the impact the legislation would have on their tribes (among these are the key testimonies of Clarence Jackson, Ray Paddock and Robert Williard). The full Committee on Interior & Insular Affairs did not hold any hearings on the proposed legislation. Again the attempts to push the legislation through Congress came to a standstill. But in 1974, the House Subcommittee proved successful in scheduling a hearing with the full Committee. March 13, 1971 the Committee favorably reported HR 6371 to the Committee of the Whole House on the State of the Union. Mr. Meeds, Chairman of the House Indian Affairs Subcommittee moved that HR 6371 be brought to the attention of the House floor. He yielded himself time to explain the various amendments the Subcommittee had proposed, i.e. the substitution of the language with the adoption of HR 9843 language (which is identical to S 1341 as passed by the Senate) and the addition of a new title providing management and technical assistance to the economic enterprises receiving benefits from the Act. In addition, Mr. Haley, Mr. Taylor, Mr. Regula, and Mr. Zwach also presented supportive statements. The Speaker then acknowledged Mr. Meeds request for consideration of the bill as amended, and HR 6371 was passed. Mr. Meeds presented an amendment which was agreed to and a motion to reconsider was laid on the table. March 27, 1974, Mr. Mansfield brought S 1341 to the attention of the Senate. The Senate favorably considered the message from the House, i.e. the House amendment to the bill. Mr. Jackson, after urging his colleagues to favorably pass on the legislation, moved that the Senate concur with the amendment of the House. The Senate did so, but also added a small amendment. On April 1, 1974, Mr. Meeds asked the House for unanimous consent to concur in the Senate amend. ment. The Senate amendment to the House amendment was concurred in and a motion to reconsider was laid on the table. The Indian Finance Legislation had finally made it through both Houses. On April 13, 1974, President Nixon signed the Indian Finance Act into law. CENTRAL COUNCIL OF THE TLINGIT AND HAIDA INDIANS OF ALASKA, MORRIS THOMPSON, Commissioner, Bureau of Indian Affairs, Washington, D.C. DEAR COMMISSIONER THOMPSON: The Central Council of the Tlingit and Haida Indians of Alaska hereby appeals the decision of the Area Director, Juneau Office BIA, dated October 7, 1976 to deny our tribal application for a tribal development grant under Section 104 of the Indian Self-Determination and Education Assistance Act (88 Statute 2203; hereafter, "the Act”). We contend that the Area Director has erroneously interpreted and applied the Act. We contend that under Sec. 4(b) of the Act we are the "Indian Tribe" which has the legal authority to represent all Tlingits and Haidas. Congress legislatively recognized our legal existence as the Indian Tribe representing all Tlingits and Haidas in the original Jurisdictional Act of June 19, 1935 (49 Stat. 388), the Act of August 19, 1965 (79 Stat. 543), and the legislative history developed pursuant to the latter Act. Secondly, Congress has continuously recognized our existence as an Indian Tribe representing all Tlingits and Haidas in the course of legislative hearings. I particularly refer you to the legislative history surrounding the enactment of Alaska Native Claims Settlement Act (85 Statute 688). In this monumental transaction of and between the Federal government and all Alaska Natives, the Congress never, for one moment, questioned the right of the Central Council of the Tlingit and Haida Indians of Alaska to represent all Tlingits and Haidas in order to forever disclaim aboriginal Indian Title in exchange for a legislative settlement. We can only question the propriety and even motivation of BIA officials who supposedly have a fiduciary responsibility to the Indian Tribes, who were so willing to not question the right of the Central Council Tlingit and Haida Indians of Alaska to represent all Tlingits and Haidas when we agreed to disclaim further claims to Alaska lands, but subsequently question the authority of the Central Council of the Tlingit and Haida Indians of Alaska when the Central Council seeks to assert its rights under an Act of Congress which seeks to strengthen tribal government. The failure of the Bureau of Indian Affars to recognize the Central Council of the Tlingit and Haida Indians of Alaska as an "Indian Tribe" under Sec. 4(b) of the Act will most assuredly, eventually undermine the political authority of the Central Council of the Tlingit and Haida Indians of Alaska. We oppose any such effort. We find it a bitter irony that the BIA Area Office has chosen to implement the Self-Determination Act in such a way as to undermine, rather than strengthen our tribal government. The Area Director's denial contended that we have not complied with Sec. 4 (c) of the Act. Since we assert our rights as the tribal government, Sec. 4 (c) is inapplicable to our situation. Further, even if one assumes that Sec. 4(c) is applicable, the Area Director has not recognized the intent of the Department of Interior Solicitor's opinion, dated May 21, 1976. This opinion states that the authorizing resolution is not a requirement of the Act, but of regulation. The Commissioner may waive this regulation where it is an onerous burden on the tribe. This requirement is an onerous burden on Central Council Tlingit and Haida Indians of Alaska and we suggest that if the Commissioner queried any Alaska Native regional tribal government, he would find the same heavy burden. We would like to point out that the Bureau had to grant the Tanana Chiefs Conference $25,000 just to procure such resolutions. These problems are as great or greater in other regions. Therefore, we contend that if the Bureau treated everyone alike, it might have to spend 1⁄2 of a million dollars just to comply a bureaucratic grant application process. This would be a regrettable and irresponsible waste of the scarce resources available to Alaska Natives. Finally, the Area Director of the Juneau Area Office has recognized the Central Council of the Tlingit and Haida Indians of Alaska as an Indian Tribe in two letters to the President, Central Council, Tlingit and Haida Indians of Alaska, dated August 30, 1976 and October 7, 1976. Again, even if we assumed that the Central Council of the Tlingit and Haida Indians of Alaska fell under the purview of Sec. 4(c) of the Act (and we do not concede that), you will note that in the Solicitor's opinion dated May 21, 1976, Page 3, paragraph 3, Mr. Soller states that not every contract (and impliedly, grant) to a regional corporation (and impliedly, every regional Indian tribe) will necessarily benefit every village or village corporation in the region. Under the hypothetical assumption that the Central Council, Tlingit and Haida Indians of Alaska is only one of many Indian Tribes in the region, we contend that our application is not of direct benefit to every village within our regional tribal boundary. Therefore, the requirement of village consent is inappropriate even under these hypothetical circumstances. We would also like to point out that although the Central Council Tlingit and Haida Indians of Alaska represents approximately 20 percent of the Alaska Native population, entities approved for grants under Sec. 104 in our region have received only approximately 7 percent of the total funds. The Tlingits and Haidas are being seriously shortchanged by the actions of the Juneau Area Director. |