Authority exists to create a tribal corporation within a tribe. While Public Law 93-638 provides for options to fund a multitribal organization, no authority exists for tribes to create a multitribal corporation.

The only alternative is to incorporate multitribal organizations under State Law, thus exposing tribal sovereignty to the potential danger of state intrusion. Not only is tribal sovereignty jeopardized, but the potential of liabilities under state laws are in conflict to this government's trust responsibilities.

We urgently request this committee to consider establishing authority in the regulations or, if necessary, by legislation, granting authority for multitribal organizations to incorporate in a manner consistent with trust responsibilities.

2. We are satisfied that reasonable procedures for hearings and appeals are provided for in the BIA regulations.

3. Neither the BIA or IHS identify the types of functions that are subject to contracting, nor is any attempt made to define functions that are not subject to contracting.

4. Generally speaking, the BIA grant regulations adequately provide grant assistance to encourage tribal self-determination except that small tribes may be excluded or severely handicapped. The most recent formula developed in the BIA for developmental grants provides for a minimum allocation of $9,000. The BIA regulations further provide (401.15-(z)) for an initial planning grant of 10 percent of the minimum allocation. Small tribes would then receive $900 for initial planning. This limited amount would preclude small tribes from developing any plans that might assure their full participation as was intended by Congress.

To date small tribes have been grossly overlooked in Federal programing and would continue to derive minimal benefit under current proposed grant allocations. This committee should direct the agencies to place greater emphasis on the needs of smaller tribes if equality in the developmental process is to be realized.

[The prepared statement of Mr. Forrest follows:]

STATEMENT OF ERIN FORREST, VICE PRESIDENT, NATIONAL TRIBAL CHAIRMEN'S

ASSOCIATION

On behalf of the National Tribal Chairmen's Association, we would like to express our appreciation for your invitation to participate in this very important hearing.

We are most appreciative, that Congress, and in particular, this Committee, exhibited such a keen understanding relative to the need and timeliness for such a constructive and challenging approach to making self-determination a meaningful reality.

We have reviewed with interest, the history and intent of the Act as outlined in the Senate Committee Report of March 28, 1975. The potential for Tribal Governments to exercise expanded responsibilities and opportunities for delivery of services while strengthening their own governmental capabilities is exciting: however, we are experiencing some grave concerns, that the Indian Health Service Regulations of September 15, which very few of us have had an opportunity to review, may tend to stifle these intended goals.

Before responding to the questions posed by the Committee, we would like to take this opportunity to express some general concerns.

1. There is wide spread discontent, that both the BIA and IHS failed to give serious consideration to Indian recommendations which were expressed during initial consultation sessions. For example, repeatedly Indian leaders insisted that the BIA and IHS combine their efforts and develop one set of Regulations that would be easily understood, with a minimum of reference to other existing

regulatory authorities. It was suggested, that special provisions, whenever applicable, either to the BIA or IHS be inserted in appropriate sections of reference. Such has not been the case. We now have sets of Reegulations significantly different, even in definitions, and the references will require considerable research and acquisition. We anticipate two substantially differing handbooks not to mention two national efforts of regulation orientation. We also anticipate considerable confusion in the planned orientation sessions, resulting from differing interpretations of the law.

2. As prescribed by law, the initial consultations started out as a joint BIA and IHS effort. It soon developed into a competitive arena for organized confusion, with, each Agency charging the other with domination, etc. The atmosphere for productive Indian input has been severely limited, particularly, by the divergent interpretations under which comments were solicited.

If the intent of Congress is to be implemented to the greatest advantage of Indian Tribes, this Committee should concern itself with resolving these differences.

In all fairness to the Bureau of Indian Affairs however, their Regulations reflect greater conformance to the intent of the Law, their distribution of related documents has been prompt and their most recent consultation sessions related to the proposed Regulations indicate responsiveness to Indian ideas.

Response to IHS Regulations is most confusing and deeply depressing. To date, their published Regulations are not in sufficient distribution among Indian Tribes for intelligent comment. Rumors are prevalent, changing from day to day, that portions of their Regulations may or may not be amended. Answers to Indian inquiries are non-committal if not absolutely negative.

IHS Regulations are a cause of serious concern, particularly due to their silence on a positive policy statement and in regards to Contracts in existence prior to the implementation of PL 93-638. These implications appeal to give credence to rumors that IHS will continue to use the Buy-Indian Act as the preferred method of contracting.

Under the guise of providing "flexibility in contracting" we are fully expecting IHS to provide regulatory authority that is designed to circumvent the need for "Tribal Clearance" on current and future Contracts.

There is sufficient evidence that confirms bitter, philosophical differences within IHS relative to intent and the responsibilities assigned to regulation development. It is apparent that one faction is more concerned with assuring continuation of current Contracts under the Buy-Indian Act, than subjecting such contracts to the intended provisions for Tribal scrutiny.

In any discussion of this matter, it should be understood that the history of PL 93-638 as published in the Senate Report, in March of 1974, specifically relates to the need to strengthen Tribal Governments and to provide a more clearly defined Contracting authority.

On Page 22, under II of that report, Congress identified the Four Basic Acts under which Contracting was authorized. These are, the Buy-Indian Act of 1910, the Johnson O'Malley Act of 1934, the Snyder Act of 1921, and the Act of 1834, (4 Stat. 737).

In reference to these authorities and S. 1017, the Congress went on to say, "The difficulties in straining statutory language beyond its original intent creates numerous administrative and management problems which this legislation is designed to correct."

In the second paragraph following the above quote, Congress added, "S. 1017 is designed to alleviate these problems by providing direct statutory authority for Contracting of Federal Programs by Indian Tribes.”

There is then, no question as to what the intent of Congress was and the implications of the IHS silence in these areas is questionable.

A key issue is that the IHS proposed Regulations on 93-638 are silent in regard to the applicability of 93-638 to existing Contracts at the time 93-638 Regulations become effective on November 4, 1975. The BIA has taken the position in their proposed Regulations that 93-638 will apply to all Contracts in effect on November 4, in regard to any amendments or Contract renewals specifically requiring tribal governing body clearance for all Contract actions after November 4, and to exisitng Contracts with "tribal organizations." This would not necessarily apply to all BIA current contracts with Indian negotiations which were awarded under the authority of the Buy-Indian Act. Obviously, an independent Indian owned business firm would not qualify as a "tribal organization," so Buy-Indian Contracts with them would not be affected.

The Indian Health Service is taking the position under the cover of not having said in the proposed Regulations whether and how 93-638 will apply to existing Contracts, that 93-638 will not automatically apply, that only a tribal council or a "tribal organization" as an instrument of or with the endorsement of a council can invoke 93-638 regarding existing Contracts, renewals of such Contracts or new Contracts. By logical extension of that statement then we would presume that they are saying that the IHS (in wanting to have the flexibility to continue to use the Buy-Indian Act authority) will continue to use the BuyIndian Act by preference to effect Contract renewals and amendments of existing Contracts and new Contracts-with Indian organizations, unless the new Contract proposal or proposed amendment is initiated by a Tribal Council Resolution.

The effect of this decision would exempt current contractors and new contracts from most of the desirable features of 93-638. A key feature of 93-638 is the affirmation and reinforcement of Tribal Sovereignty through the requirement for tribal governing body clearance for contract proposals.

The Indian Health Service would seem to be taking a position that would exempt contractors which would ordinarily have to qualify under 93-638 as a "tribal organization" from seeking tribal clearance as a routine measure. The only way a tribe or consortium of tribes could invoke 93-638 in opposing such action would then be to present a competing proposal by Tribal Resolution or to protest a contract award through administrative channels, or to institute legal action enjoining IHS from contracting contrary to the letter and intent of PL 93-638, and contrary to the intent of Buy-Indian Act.

IHS is not, however, making public its position regarding its preferencce for continued use of Buy-Indian Act.

It has been argued by some members of IHS staff that PL 93-638 is the primary and preferred contracting authority for IHS in contracting with Indian organizations for health service functions, in which case IHS would act affirmatively to invoke the requirements of 93-638 for tribal clearances.

The key factor in determing whether the IHS position regarding how and when 93-638 is invoked is whether it is the preferred contracting authority and whether the regulations of 93-638 should apply uniformly in precontract dealings with organizations which presumably could qualify as tribal organizations as defined in 93-638.

The answer to the question of whether it is a preferred authority or even a mandatory authority lies in the legislative history of 93-638 and even further back in the history and intent of the Buy-Indian Act of 1910.

The Senate Committee Report states that the major purpose of 93-638 is to provide Tribes a means to implement self-government, i.e., tribal sovereignty. The need for 93-638 was recognized by the committee by declaring that it was designed to provide a direct statutory authority for contracting of Federal programs by Indian Tribes because the BIA and IHS in expanding contracting with tribes had strained the statutory language of Buy-Indian, JOM, Snyder, and the Act of 1834 beyond the original intent of those laws. Since Buy-Indian is listed as being strained presumably IHS was also stretching the intent of Buy-Indian.

If you examine the intent of Buy-Indian, we think you can get an idea of the original intent of Buy-Indian and how far IHS had stretched it and why PL 93– 638 was meant to supplant Buy-Indian as a preferred authority for IHS in contracting for the various health service programs with Indian organizations and Tribes.

The HEW regulations on Buy-Indian state the policy of IHS to use the negotiating authority of Buy-Indian to give preference in award of contract to Indians (such preference exempts IHS from the usual requirement for competition in award of federal contracts).

The Buy-Indian Act was enacted in 1910. What was the intent of Congress in 1910? What was it that BIA was desirous of purchasing from Indians in 1910 that it should be given authority to waive the advertising requirements then in effect regarding federal procurements of supplies.

The Buy-Indian Act provides: "So far as may be practicable, Indian Labor shall be employed, and purchases of the products of Indian industry may be made in open market in the descretion of the Secretary of Interior."

It would appear that the original intent would be to allow the BIA to purchase Indian Labor on certain projects and to purchase supplies from Indian individuals or tribes or businesses without advertising.

Clearly the BIA was not in the wide scale business of either providing or contracting for health, education, or other social programs. The direct statutory

authority directing the Secretary to provide such service did not come until 1921 under the Snyder Act.

The DHEW regulations interprets the Buy-Indian Act authority to apply to the purchase of products of Indian industry in maintenance and operation of hospital and health facilities and (in operation of programs for) conservation of the health of Indians.

The DHEW definition of "Indian firm" used is heavily business oriented. Ordinarily a business is some sort of economic enterprise.

A "Product of Indian Industry" is defined as anything produced by Indians through physical labor or intellectual effort involving use of application of skills. We therefore, inasmuch as IHS is silent on a policy statement which would clarify Congressional intent, urge this Committee to instruct the IHS to incorporate a policy statement into their Regulations. In view of the clarity of Congressional intent and the need to minimize confusion, we recommend that IHS adopt the same policy statement as the BIA (Section 401.4) and add paragraph (h) which would indicate that PL 93-638 is the preferred authority for Contracting.

We likewise recommended that Section 401.19 of the BIA Regulations be incorporated into the IHS Regulations, in total.

The following is in response to the five questions posed by the Committee: 1. Neither the BIA or IHS Regulations satisfactorily explain the conditions in which they will identify an entity as a "Tribal Organization."

Mass confusion exists throughout most areas and depending on local interpretations, on the question of what constitutes a "Tribal Organization."

The BIA definition of a tribal organization, subpart A, Section 401.2 and the IHS definition, subpart H, Section 36.102 are substantially different. We unequivocally reject the IHS definition.

The BIA definitions clearly define a "Tribal Organization," which substantiates our position that a "Tribal Organization" is the creation of a Tribe or Tribes.

The problem some administrators seem to have is with the phrase, "or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes maximum participation of Indians in all phases of its activities."

It is our interpretation, the reference to the words such organization, means one that is controlled, sanctioned, or chartered by a Tribe or Tribes. This is further substantiated by the "provisos" following the above quoted phrase.

Since, our interpretations are not shared by significant numbers of Federal Employees and so-called non-profit Indian organizations," the Committee needs to clearly establish Congressional intent.

If in fact we are in error in our interpretation, then, the intent of "strengthening Tribal Governments" is meaningless.

A critical and related issue concerns, what constitutes a recognized legal "entity," for purposes of participation.

Authority exists to create a Tribal Corporation within a Tribe. While PL 93638 provides for options to fund a multi-tribal organization, no authority exists for Tribes to create a multi-tribal corporation.

The only alternative is to incorporate multi-tribal organizations under State Law, thus exposing tribal sovereignty to the potential danger of State intrustion. Not only is Tribal sovereignty jeopardized, but, the potential of liabilities under State Laws are in conflict to this Governments trust responsibilities.

We urgently request, this Committee, to consider establishing authority in the Regulations or, if necessary, by legislation, granting authority for multi-tribal organizations to incorporate in a manner consistent with trust responsibilities. 2. We are satisfied that reasonable procedures for hearings and appeals are provided for in the BIA Regulations.

3. Neither the BIA or IHS identify the types of functions that are subject to contracting, or is any attempt made to define functions that are not subject to contracting.

4. Generally speaking, the BIA grant regulations adequately provide grant assistance to encourage tribal self-determination except, that small tribes may be excluded or severely handicapped. The most recent formula developed in the BIA for Developmental Grants, provides for a minimum allocation of $9,000.00. The BIA Regulations further provide (401.15-(z)) for an initial planning grant of 10% of the minimum allocation. Small tribes would then receive $900.00 for initial planning. This limited amount would preclude small tribes from developing any plans that might assure their full participation as was intended by Congress.

To date small Tribes have been grossly overlooked in Federal programming and would continue to derive minimal benefit under current proposed grant allocations. This Committee should direct the Agencies to place greater emphasis on the needs of smaller tribes if equality in the developmental process is to be realized.

Mr. FORREST. At this time, Byron Graves will present the education portion.

STATEMENT OF BYRON L. GRAVES, RED LAKE RESERVATION

TASK FORCE

Mr. GRAVES. Mr. Chairman, members of the subcommittee, my name is Byron L. Graves. I am a member of the Red Lake Band of Chippewa Indians and a member of the Red Lake Reservation task force which is testifying in behalf of the National Tribal Chairman's Association in regard to the oversight hearing on rules and regulations promulgated to implement Public Law 93-638, the Indian Self-Determination and Education Assistance Act.

Since the numerous meetings have been held with respect to the drafting of the rules and regulations, our task force has been diligently involved in contributing evaluations and recommendations of the numerous drafts that have been formulated and we appreciate this opportunity to again be able to offer comments and recommendations for the amending and revision of the rules and regulations as they pertain to implementing title II of Public Law 93-638, the Indian Self-Determination and Education Assistance Act.

At the outset of our testimony we would like to present our objection to Public Law 93-638, the Indian Self-Determination and Education Assistance Act in form of a resolution which will be enacted by the Red Lake Band of Chippewa Indians and which we would appreciate having inserted into the record.

Senator ABOUREZK. When will you have that resolution adopted? Mr. GRAVES. We have a copy of it

Senator ABOUREZK. Has it been adopted already?

Mr. GRAVES. It will be adopted.

Senator ABOUREZK. How long do you think that will take?
Mr. GRAVES. Thursday.

Senator ABOUREZK. We will hold the record open for 30 days. I'm advised we can hold it open until the end of November. Please submit the resolution to the committee as soon as possible, and it will be made a part of this record.

Mr. GRAVES. We feel very strongly and apprehensive about some of the danger signals within the act to the extent that we are opposing any legislation that may be detrimental to the best interests of the members of the Red Lake Band of Chippewa Indians. To reiterate some of the remarks make by President Wendell Chino of the National Tribal Chairman's Association at a meeting held on the Red Lake Indian Reservation last week, Mr. Chino stated:

Tribal people should be on the alert of efforts to legislate Indians out of existence. We, as Indian people, have as much right as any other people to extend our culture and heritage into continued perpetuity. Protection should be intensified against legislation that will run over the Indian people. Continued protection should be effected for all Indian land and other natural resources through perpetuity.