which tribes express their priorities for funding; and fifth, the proposed transfer of the responsibility for negotiating the indirect costs associated with the operation of self-determination contracts from the Office of the Interior Department's inspector general to the Office of the Secretary. Last, but certainly not least, we will hear from those charged with the primary responsibility of implementing the amendments to the Act, Dr. Everett J. Rhoades, Director of the Indian Health Service, and the Acting Assistant Secretary for Indian Affairs within the Department of the Interior, Mr. Pat Ragsdale. We look forward to the important testimony of each of today's witnesses.

But before we proceed with the hearing, I would like to ask the Committee to turn first to the matter of the bill that is scheduled for our consideration today, the Coquille Restoration Act, and for the presentation of the bill to the committee, I would call upon Senior Counsel to the Committee, Mr. Peter Taylor. Chairman Allen.

STATEMENT OF HON. WILLIAM RON ALLEN, CHAIRMAN,
JAMESTOWN KLALLAM TRIBE, SEQUIM, WA

Mr. ALLEN. Thank you, Mr. Chairman, for the opportunity to come before you and this committee to testify regarding the critical issue of developing the Public Law 93-638 regulations.

You have my testimony before you, and what I'll try to do is articulate it as best I can without reading it too much.

This process of developing the regulations for Public Law 93-638 and 100-472 we have felt is a critical process, that is intended to try to modify the relationship between the tribes and the Federal Government consistent with the government-to-government policy. We feel that since the enactment of Public Law 93-638 act in 1975, the tribes have made a considerable amount of progress in developing their skills and their proficiency in handling their governmental responsibilities, affairs and their programs; yet, we have always been frustrated over the bureaucratic process and regulations that have come out of that first law and the very complex bureaucratic maze that we have to navigate through in order to accomplish our objectives.

So it takes a great deal of creativity on our part to try to make the goals of that act and the goals of the tribes in their pursuit of self-determination and self-proficiency a success.

The current system, in our judgment, has never been consistent with the policy of government-to-government relationship. It has never really been administered consistent with our unique relationship as governmental entities with our treaty rights and our sovereign jurisdictional obligations to our people.

On top of that, the consistent frustration that the tribes have experienced with the paternalistic disposition that we experience through IHS and BIA has caused us to work with this committee and Congress to try to change that system and change that relationship and do it in a positive manner.

We feel that a great deal of the tribes' efforts have been aborted with the fight of the tribes trying to pursue our self-sufficiency and self-determination and independence relative to the subtle underly

ing struggle of a bureaucracy to survive and to justify itself. We find the battle for the precious dollars that are appropriated by Congress to us is a very difficult process for us, and we also find a great deal of frustration in terms of trying to get those dollars prioritized consistent with our priorities and purposes.

In our judgment, this reality is a part of the dilemma we are facing, and that is dealing with how we are going to implement the new Amendment Act that changes the law, and hopefully changes it in a proper context to establish the proper relationship between the tribes and the Federal Government.

We feel that this amendment has provided us the opportunity to change this system. How this regulatory process takes place to implement this law is the basic theme of my discussion.

When we worked with this committee and the House Interior and Insular Affairs Committee, we had a number of objectives that we were trying to accomplish that we recognized were deficient within the current regulatory system to address the needs of the tribes.

One of the areas that we were quite frustrated with relative to our government-to-government relationship is the consultation process utilized by the Federal agencies. We recognize that it was a process that wasn't successfully and effectively working and, in our judgment, wasn't dealing with us in that true context of government-to-government relationship. So we were very diligent about putting the word "participation" into that law to try to replace 'consultation," because we felt that that is a way that the governmental relationship should be conducted. Thus, when policy and regulations are developed, such as we are dealing with right now, they would be developed in that context that we would work with. the Federal Government in negotiating those solutions, remedies, and conditions under which we would carry out this activity.

66

We had hoped that if the bureaucracy—that is, IHS and BIAwas working with us, we would be able to walk over this threshold and spend less time fighting with the agencies and more time dealing with the needs of tribes, as well as spend a lot less time here in Washington, DC.

In the first phase of this process, the bureaus did try to implement the regulation consistent with the timeframe set out in the law, but, unfortunately, the communication and the interaction with the tribes was very poor. We appealed to this committee and the House committee to support the tribes recommendation that the schedule be delayed to allow us to actively participate in this process. We felt that that relationship was critical to make the law a success. Those of us who are responsible for implementing this law and carrying out our governmental responsibilities must utilize these amendments as the framework to administer Public Law 93638 contracts, and assure that the activities within the contracts are realistic and reasonable relative to what we have been experiencing.

We felt, in the early phase, that the bureaucracy was not acknowledging that relationship and was not willing to do that. They wanted to proceed with the process and an approach that was essentially the same as consultation. We objected to that, and so we

pushed hard for these workshops referred to as "regulation drafting workshops."

In the mind of the tribes, that process meant that we would negotiate with IHS and BIA one single set of regulations for both Bureaus-because we felt this law applied to both Bureaus-and that the context in which each of those sections applied to Public Law 93-638 contracts would be a context consistent with the practical application and implementation for those of us who actually administer it.

The first two meetings took place in Nashville and Albuquerque. They were well attended by approximately 250 tribal representatives. Consistently, the same faces showed up at these sessions, and they were the tribal leaders, their technical assistants, lawyerspeople who represented the tribes and understood what these regulations meant.

We put this into a form in which we would try to negotiate it. We recognized in the early phases of this process that the Bureau was struggling with it, and they were struggling with it in the context that they felt that this was not a negotiating process; this was a process where they were going to hear the views of the tribes, and then they would go back to their offices and draft the regulations as they saw fit, taking into consideration those views. Now, that is not different from the consultation process.

In our mind, the identity of the document that we drafted-and we drafted that document in the context of regulations, so that what we were dealing with was the actual substance that we felt would come out in a published form. This was critical, and we worked very hard at accomplishing that.

We consistently heard Federal positions that said that we didn't understand what regulations were all about. Of course, we objected to that view, because we feel that we have the expertise, knowledge, and the competence to understand exactly how to develop regulations. You don't have to live and work in Washington, DC, to .know how to develop regulations. And we wanted to put them in that context.

We weren't concerned about minor technical aspects, but we were concerned about substance. We had a great deal of difficulty getting the Bureau, particularly, to come prepared to negotiate those positions. That was quite frustrating for us. It was frustrating because they would make arguments that they weren't prepared and they didn't come to these sessions understanding what they were about. We felt that they should have known, and there was no reason for them not to know. The communication, in our judgment, was very clear about what this purpose was.

The Bureau and IHS, to a certain extent, made arguments that this environment of 250 tribal representatives was not the proper environment in which you can develop regulations. We recognize that that is a difficult forum, but we also pointed out that this forum is necessary so that the very complex objectives for all the tribes, villages and rancherias involved are addressed so that the unique conditions of each of our tribal areas and needs could be addressed as well as possible. We felt we could work out our differences and recognize that the dynamics of the process will allow fur

ther modifications down the road. The process was basically rejected by the Bureau.

We had also recommended that we could utilize the steering committee that was established by the Indian Health Service to be the liaison between the tribes and the bureaucracy, and that the Steering Committee, which was initiated by the IHS program but was selected by the tribal leadership in the 12 regions, we felt-the form of which, as we moved forward in this process from the larger group to a smaller group, that those smaller representative groups could work out the details as the larger group moved a little bit closer in what we though was the appropriate context of these regulations.

Now, that hasn't been accepted by the Bureau. It has been accepted by IHS, and they initiated it, which means that they acknowledge, in our judgment, the governmental relationship between the tribes and the bureaucracy.

We are quite frustrated that the Bureau seems to think that Indian representatives on IHS are only knowledgeable about Indian Health Service issues. We pointed out that the Indian leaders on the Steering Committee are Indian leaders who deal with both BIA and IHS issues and are knowledgeable with the broad expertise and background to deal with both bureaus, including the broad spectrum of programs that are addressed inside the BIA.

That has been a frustrating experience for us because the Bureau has not been willing to acknowledge that entity to try to work out the details, or even come to an acceptance of the concept that we would negotiate these regulations.

The other example of frustration that we have experienced was putting the schedule together to develop the regulations. We couldn't even get cooperation to get a consistent schedule. We kept getting arguments that the Bureau was a different system, and so therefore we had to work out a different kind of a schedule. Only slowly, in the recent weeks, have we developed a schedule-with a great deal of frustration and effort that is somewhat consistent. A part of it is that we have consistently asked for the cooperative spirit between the tribes and the bureaucracy to make this thing happen, and to try to make it happen expeditiously.

We hear comments that the departmental clearance process statutorily is mandated to have 60 days minimum, and OMB has another 30 days. Our problem with that is that the statue exists, but that doesn't mean that you can't, in good spirit, work with us to try to expedite that. Can we work to try to make that happen quicker, if we could work together? There was absolutely no offer to try to make that happen.

The other thing that bothered us a great deal was that we had heard from the Bureau that this would never get by OMB. That really irritated us, too, because it was like this Darth Vader sitting in the background that you'll never get by, and we felt that it was absolutely inappropriate that an entity within the administration should be used as if that's going to be our hammer, if you will, to modify regulations or the contents of regulations.

We ask why we couldn't meet with OMB, the Bureau, and IHS together and work out some of these differences so that we, the tribes, are communicating the needs for the regulations together

and work out the problems so that there is not an intermediary between us, the Bureau and OMB regarding how these regulations should be developed. We point out that BIA didn't wholeheartedly support this law, nor did IHS. IHS even recommended to the President that it should be vetoed.

With those understandings, we had a great deal of skepticism whether our views would be clearly articulated to OMB individuals regarding how these regulations would be developed.

So this attitude has been a real problem for us, and a difficult experience for us in the willingness of the Departments to work with us.

We feel like the way the process is emerging, what has happened in the recent past at the last workshop in Albuquerque, that the Bureau and IHS-the Bureau, particularly-has taken a position that they're going to draft the NPRM, that is, the Notice of Proposed Rule Making for the regulations, and that we will be allowed to comment to try to modify them through the comment process, which is simply no different than the current consultation process. Now, IHS has been willing to work with us. We point out to the committee that there is a distinct difference between the way IHS is dealing with us versus the way BIA is dealing with us. IHS, in my judgment, is acting more as a trustee to us than the BIA because they're willing to work with us in the sense of to review their draft, to review their NPRM before it goes out, to negotiate the context and the conditions of those regulations, and to work out a compromise.

The BIA, on the other hand, has said they will not give us any document, or even show us any draft, until after the document is completely completed. So the frustrating experience is that we have an inconsistency in the way the two departments are acting. So, as you can see, where we are in this process is that the regulations are in the hands of the two Departments. There is a difference between the way the tribes are interacting with IHS, as opposed to BIA, in this process.

We recognize there are still some problems in IHS. I have given some more positive comments towards IHS, but there are still some problems in IHS within the HHS level of the Department responsible for promulgating regulations. We recognize those same kids of problems also reside in the Department of the Interior.

But we feel that if they would work with us in actually sitting across the table in working these problems out, that these issues could be concluded much more in the context of tribes.

In conclusion, I would like to urge this committee to assist us in influencing the administration to implement this law. Right now the primary issue is the Department of the Interior and HHS's cooperation regarding this bill. We feel that if we are not able to implement this law consistent with the President's policy of government-to-government relationship and consistent with the Congressional mandate of pursuit of self-sufficiency and self-determination, then, in our judgment, this effort would result in a grave disappointment. We would digress back to a status quo condition which would be very discouraging for the tribes. It simply means that we would be back-peddling a number of steps and would have to make another charge.