DISCUSSION: THE TRIBAL CONSENT PROVISION As discussed above, the tribal consent provision could be appropriately applied to Alaska by limiting its application to inter-regional tribal contracts and to instances wherein an individual village can feasibly contract for federal programs at the village level. One concern raised by BIA officials was whether or not the above tribal consent provision would provide adequate safeguards against regional tribes exercising their authority to re-program program funds for administrative and other purposes against the will of affected village tribe or program beneficiaries. One approach to the issue with sacrificing the re-programing authority which is generally viewed as highly desirable, would be to apply the tribal consent provision whenever the regional tribe authorized substantial re-programing of program or service funds. This could be accomplished by limiting the tribal consent provision to: (a) inter-regional contracts; (b) intra-regional contracts in which the integrity of programs and services are altered; and (c) instances wherein an individual village tribe can feasibly contract for programs at the village level. Then via regulation and interpretation of what constitutes an alteration of the integrity of programs and services could be drafted perhaps implying an arbitrary percentage of the programs budget. CONCLUSIONS In conclusion, the following question might be brought before the ANF convention for its consideration and resolution: (1) Is one village tribe per village and one per region the desired arrangement? (2) Should the regional tribal entities be the regional non-profit corporations or the profit corporations? (3) Should the village tribal entities be the traditional villages and IRA (ARA) organizations or the village profit corporations formed pursuant to the Settlement Act? (4) Should the tribal consent provision apply in Alaska only when a proposed contract effects more than region and when a contract could be feasibly administered at the village level or as it is presently stated in the Self-Determination Act? (5) Does Alaska need standard definitions for the terms, Indian, tribe, and reservation and, if so, what should they be? 66 (6) How can the responses to questions one through five best be implemented? If the convention desired to recognize the traditional and IRA organizations and the regional non-profit corporations this could be accomplished through an amendment of the Section 4 (b) definition of tribe by deleting the phrase including any Alaska Native Village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act .." and adding of the end of the definition the phrase ". including any Native regional association or corporation named in Section 7(a) of the Alaska Native Claims Settlement Act." Similarly if the desire of the convention were to restrict the application of the tribal consent provision contained in Section 4 (c) of the Self-Determination Act this could be accomplished by inserting after the "Provided. . . benefiting more than one Indian tribe," the phrase: "whose members are not otherwise represented within the tribe initiating the contract request, unless a benefiting tribe can feasibly perform the services itself,". And finally a standard definition of reservation comparable to that contained in Section 14-H-1.270-2 of the March 19, 1975 "Buy Indian Act" regulations could be adopted. It reads "Indian reservation means all Indian reservations, former Indian reservations in Oklahoma, and lands occupied by other Indian groups and by Alaska Native communities, including all or any part of any of the twelve regions in Alaska established pursuant to the Alaska Native Claims Secretary, or his designee". Such a definition could avoid any future problems concerning an Indian's (or Native's) eligibility for service. APPENDIX Re Public Law 93-638 and the Alaska Native Claims Settlement Act Although Public Law 93-638 is primarily directed at Indian education and health programs, Section 7(b) of the Act creates Native preference in hiring, training and subcontracting in all Federal legislation enacted "for the benefit of Indians". The Department of the Interior has taken the position that Section 7(b) applies to be the Alaska Native Claims Settlement Act. The language of Section 7(b) clearly has broader scope than educational and health programs. It applies to all legislation for the benefit of Indians. Indeed the Department of the Interior has taken the position that ANCSA is such legislation. Recently, in the litigation which established that principle the Secretary indicated that the BIA will administer all Native preference elsewhere in the Department under ANCSA. This has come about as a result of a lawsuit brought by Ahtna, Inc., one of the 12 regional Native corporations, against the Department of the Interior and BLM for not awarding four village cadastral survey contracts to an Ahtna engineering co-venture. Ahtna contended that BLM had failed to follow Section 7(b) in letting the contracts. Ahtna further argued, inter alia, that absent regulations promulgated pursuant to that Act, Ahtna was unable to determine what administrative rights it had. The Department of the Interior, through the United States Attorney's office in Anchorage, effectively mooted the issue by agreeing to cancel any contractual processes under way involving the four Ahtna villages until regulations were issued. In effect, the government conceded the applicability of Public Law 93-638 to contract issued under ANCSA. The Department further agreed that it would circulate to Ahtna applicable regulations under the Act before the surveying contracts were again put up for bid. This has now been done. Notwithstanding the fact that this was a BLM contract, the government has handed over the BIA Regulations. Thus, at least in the context of the Ahtna lawsuit, it appears to be the Secretary's position that Public Law 93-638 applies to ANCSA, and that the BIA is the appropriate agency for administering Section 7(b) questions as they apply to ANCSA. There would seem to be no basis for arguing that Section 7(b) does not apply to ANCSA. The Settlement Act is very obviously legislation for the benefit of Indians. Section 7(b) by its terms clearly operates beyond the scope of the specific matters addressed elsewhere in the Act. Whether the BIA regulations are appropriate for all questions of ANCSA implementation is another matter indeed. For example, what use is there in the BIA administering the preference procedures for the BLM or Park Service. Shouldn't there be more direct contact between the contracting agency and the ANCSA corporation? This also suggests the importance in not limiting those entities which qualify under the new Act. Given, ANCSA, it is more likely that the regional corporations will be able to take advantage of business enterprise development opportunities that Section 7(b) rightfully presents, than the non-profit regional associations. There remains, of course, the interesting question of whether the non-profit associations are recognized in ANCSA for purposes of Public Law 93-638. There is also the need for inter-agency coordination regarding the effect of Section 7(b) on ANCSA implementation. While Public Law 93-638 is undoubtedly know to the BIA, there appears to be little awareness of it elsewhere throughout the Department of Interior's Alaskan operations. It is questionable whether this awareness would be enhanced by requiring resource to the BIA procedures by other agencies. In any case it seems clear that Public Law 93-638 applies to ANCSA. This is an important development. Whether exclusive BIA management of this application is appropriate is a matter which deserves further consideration. APPENDIX A SELECTED FEDERAL LAWS OR REGULATIONS DEFINING TRIBE (S), INDIAN (S) AND RESERVATION (S) IN ALASKA I. GENERAL A. "The Indian Self-Determination and Education Assistance Act" (1975) (1) Authorization: Public Law 93-638. (2) Alaska level of funding: Pending. (3) Description: This Act provides for maximum Indian participation in determining directions, conduct and administration of Federal programs for, and services to Indians. It includes provisions both for contracts and grants 81-879-77-20 to "Indian Tribal organizations" (Title I) and expanded Indian education assistance (Title II). (4) Definitions used: (a) "Indian" means a person who is a member of an Indian Tribe. (b) "Indian Tribe" means any Indian Tribe, band, nation, or other organized group or community, including any Alaska Native village or regional village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. (c) "Tribal Organization" means the recognized governing body of any Indian tribe; and legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Inndian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such a contract or grant. B. "The Alaska Reorganization Act" (1936) (1) Authorization: Public Law 74-538. (2) Alaska level of funding: Not Applicable. (3) Description: Extends the provisions of the "Indian Reorganization Act" (1934) to include Alaskan Natives. Gives Indian groups in Alaska the right to organize as legal corporations. (4) Definitions used: (a) "Indians" That group of Indians in not heretofore recognized as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district, may organize to adopt constitutions and by-laws and to receive charters of incorporation and Federal loans under sections 10, 16, and 17 of the Act of June 18, 1934. (48 Stat. 984) C. "The Buy Indian Act" (1910) (1) Authorization: 36 Stat. 861. (2) Alaska level of funding: Not Applicable. (3) Description: Authorizes preferential treatment in the negotiation of contracts with Indian contractors for the performance of services or programs to Indians. (4) Definitions used: (a) "Indian Reservation" means all Indian Reservations former Indian Reservations in Oklahoma, and lands occupied by other Indian groups and by Alaska Native communities, including all or part of any of the twelve regions in Alaska established pursuant to the Alaska Native Claims Settlement Act (85 Stat 688) that are recognized by the Secretary or his designee. (b) "Indian Tribe" means any Indian tribe, band, nation or other organization or community, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, and includes village corporations, regional corporations and Native associations provided for or recognized by the Alaska Native Claims Settlement Act (85 Stat 688). D. “The Intergovernmental Personnel Act” (1970) (as amended). (1) Authorization: Public Law 93-638, 84 Stat 1909 (as amended). (2) Alaska level of funding: Not Applicable. (3) Description: Provides for Federal aid and technical assistance to State and local governments in order to strengthen them through improved personnel administration. Includes provisions for interchange of government employees between federal, state and local levels and training programs. (4) Definitions used: (a) "any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village as defined in the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and includes any tribal organization as defined in section 4(c) of the Indian Self-Determination and Education Assistance Act." E. "The Alaska Native Claim Settlement Act" (1971) (3) Description: Extinguishes Alaskan Native aboriginal rights and provides for compensations of cash and land title through a formula set out in the act. (4) Definitions used: (a) "Native" means a citizen of the United States who is a person of onefourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian Community) Eskimo, or Aleut blood, or combination thereof. The term includes any Native as so defined either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any village or group. Any decision of the Secretary regarding eligibility for enrollment shall be final. (b) "Native village" means any tribe, band, clan, group, village, community, or association in Alaska listed in sections 11 and 16 of this Act, or which meets the requirements of this Act, and which the Secretary determines was, on the 1970 census enumeration date (as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance), composed of twenty-five or more Natives; F. "The Indian Financing Act" (1974) (1) Authorization: Public Law 93-262. (2) Alaska level of funding: Pending. (3) Description: Provides capital for loans and grants to Indians to promote economic development through utilization of their own resources, both human and physical. Promotes training of Indian personnel so as to assure greater selfdetermination. (4) Definitions used: (a) "Indian" means any person who is a member of any Indian tribe, band, group, pueblo, or community which is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs and any "Native" as defined in the Alaska Native Claims Settlement Act (85 Stat. 688). (b) "Tribe" means any Indian tribe, band, group, pueblo, or community, including Native villages and Native groups (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the Alaska Native Claims Settlement Act, which is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs. (c) "Reservation" includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act. A. "The Johnson O'Malley Act" II. EDUCATION (1) Authorization: Public Law 74-638, 25 USC 452-56. (2) Alaska level of funding: Fiscal year 1974, 4.5 mill. (3) Description: Provides funds for supplemental programs in public schools to insure adequate education of Indian children in these schools as opposed to Federal schools. (4) Definitions used: (a) "Indian" means an individual of one-fourth or more degree of Indian blood and a member of a tribe, band or other organized group of Indians, including Alaska Natives, which is recognized by the Secretary of Interior as being eligible for BIA service. (b) "Indian corporation" means an Indian controlled corporation chartered under State law, Federal law, and under tribal authority". B. "The Snyder Act" (1921) (1) Authorization: Public Law 67-85, 42 Stat 208 25 USC 13. (2) Alaska level funding: Fiscal year 1974, $11,476,900. (3) Description: Directs the Bureau of Indian Affairs to provide schools for Indian children who do not have access to public schools. (4) Definitions used: (a) "Enrollment in Bureau-operated schools is available to children of onefourth or more degree of Indian blood, reside within the exterior boundaries of Indian reservations under the jurisdiction of the BIA or on trust or restricted lands under the jurisdiction of the BIA . . .” (b) 32.1 Appropriations for loans or grants (used for) . . . students of onefourth or more degree of Indian blood . . . who reside within the exterior boundaries of Indian reservations under the jurisdiction of the BIA or on trust or restricted lands under the jurisdiction of the BIA. Also to students of onefourth or more degree of Indian blood who reside near the reservation when a denial of such loans or grants would have a direct effect upon Bureau programs within the reservation. After students meeting these eligibility requirements are taken care of, Indian students who do not meet the residency requirements but are otherwise eligible, may be considered. C. "The Indian Education Act" (1972) (1) Authorization: Public Law 92-318, 20 USC 241, Public Law 93-380, amended 1974. (2) Alaska level of funding: Fiscal year 1974, Part "A" programs, $3,706,936; Part "B" Programs, $253,000. (3) Description: Provides funding for programs designed to meet the special educational needs of Indian students. Includes provisions which strengthen Indian self-determination by giving funding priority to Indian organizations and by setting up Indian Parent Advisory Committees. (4) Definitions used: (a) "Indian means any individual, living on or off a reservation, who (a) is a member of a tribe, band or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendent, in the first or second degree, of any such member, or (b) is considered by the Secretary of the Interior to be an Indian for any purpose, or (c) is an Eskimo or Aleut or other Alaska Native. D. "Federal Impact Aid" (1) Authorization: Public Law 81-874, Title I (2) Alaska level of funding: Fiscal year 1974, $30.4 million. (3) Description: Provides funding for local school operational expenses in areas where federally owned land or activity has placed a financial burden on the local agencies. (4) Definitions used: (a) "Federal property" means real property which is owned by the United States or is leased by the United States and which is not subject to taxation by any State or any political subdivision of a State or by the District of Columbia. Such term includes real property leased from the Secretary of the Army, Navy, or Air Force under section 805 of the National Housing Act, as amended, for the purpose of title VIII of such Act. Such term also includes real property held in trust by the United States for individual Indians or Indian tribes, and real property held by individual Indians or Indian tribes which is subject to restrictions on alienation imposed by the United States. Such term does not include (A) any real property used by the United States primarily for the provision of services to the local area in which such property is situated, (B) any real property used for a labor supply center, labor home, or labor camp for migratory farm workers, or (C) any low-rent housing project held under title II of the National Industrial Recovery Act, the Emergency Relief Appropriation Act of 1935, the United States Housing Act of 1937, the Act of June 28, 1940 (Public Law 671 of the Seventy-sixth Congress) or any law amendatory of or supplementary to any of such Acts. E. "School Construction in Areas Affected by Federal Activities" (1) Authorization: Public Law 81-815. (2) Alaska level of funding: (see "Impact Aid"). (3) Description: Provides funding for local school construction in areas where federally owned land or activity has placed a financial burden on the local agencies. (4) Definitions used: (a) "Federal property" means real property which is owned by the United States or is leased by the United States, and which is not subject to taxation |