Statement of S. Bobo Dean budgetary needs. Congress recognized that information on resource availability assists Indian tribes in deciding whether or not to contract under the Act. The April 3 draft pertaining to the Secretary's annual report to Congress, to Indian tribes and the provision on consultation in preparation of the Secretary's annual budget reflects this Congressional directive. Unlike the IHS, which has been receptive to the need for the agencies to be more accountable, the Bureau has concluded that such reporting requirements are too "expensive and burdensome." We disagree and trust that the Committee will insist that reporting requirements be complied with. Contractibility and Divisibility. Finally, we note that neither agency has adequately focused on the issues of contractibility and divisibility of programs under the Act. Before regulations can be finalized these issues should be addressed. We believe that the 1988 Amendments resolve any significant issues as to contractibility and that the agencies need merely to promulgate regulations not inconsistent with the amended Act. Under section 102 the Act applies to any program or portion thereof which either Secretary is authorized to administer for the benefit of Indians by the Snyder Act (25 U.S.c. 313) and subsequent legislation. The Congress clearly intended by amending this section in 1988 to bar the agencies from exempting certain programs from tribal contracting under the Act. See Senate Report No. 100-274 at pages 23-25. In the consultation process, tribal representatives have differed on whether the regulations need contain any language on this issue. We understand that the agencies still consider that there are certain federal functions which cannot be legally transferred to tribes under the Act. We recognize that the trust responsibility and other legal constraints probably do have this effect as to certain federal functions (as distinct from programs). These functions include committing the federal government to certain actions, certain trust officer functions (approvals of leases of trust lands), technical advice in determining whether an action is binding on the United States, and maintaining accountability for federal funds, programs of property used or operated directly by the federal government. We urge that these specific functions be identified in regulations so that tribes may have the full benefit of the legislation without having to contest unjustified federal assertions of noncontractibility. Statement of S. Bobo Dean We recognize that the division of programs serving more than one tribe, when not all of the tribes being served request a contract (or multiple tribal contracts are contemplated), may be a critical issue in implementing the Act. Section 106(b)(5) of the Act provides that BIA and IHS are not required to reduce funding to non-contracting tribes in order to make funds available to another tribe under the Act. The Bureau has proposed that the declination criteria should be applied to the noncontracted portion of the program and a proposal should be declined if the non-contracted portion fails under these criteria. There is no statutory basis for this approach (except possibly as to trust resource programs). The regulations should, however, contain standards under which a program serving multiple tribes may be divided for purposes of implementing the Act. If a fair allocation of resources does not provide sufficient funds to meet declination criteria for the program to be contracted and no other resources are available, then the proposal can be declined, subject to the usual right to appeal and a hearing. We suggest that the agencies review the provisions on divisibility contained in the 1977 BIA Procedural Guidelines under the Act and circulate proposed language on divisibility for tribal comments in advance of the development of the next draft of the regulations. These are just some of the issues presented by the regulatory process to date. We have provided for the record a detailed analysis of the April 3 draft to supplement this testimony. We thank you for the opportunity of presenting these views. I would be happy to answer any questions which the Committee may have at this time. Attachment ANALYSIS OF THE APRIL 3, 1989 REGULATIONS DRAFTING WORKSHOP II WORKING DOCUMENT ALBUQUERQUE, NEW MEXICO HOBBS, STRAUS, DEAN & WILDER May 3, 1989 |