the BIA without full participation by and consultation with the tribes makes a mockery of the words, "self-determination." For years the BIA pressured Navajo to produce a balanced budget and to reduce the outlay of tribal funds. Yet it is the very refusal of the Area Office to cooperate with the Navajo Tribe in developing an integrated budget based on Tribal priorities which has resulted in two separate unrelated budgets, administrative duplication, program irrelevancies and large scale waste of funds on GIA-determined priorities which simply do not meet Tribal needs. The very insensitivity to Tribal needs of the BIA budget has resulted in increased appropriations of Tribal funds to meet those needs which the Area Office systematically disregards. Were our requests for full participation in the development of the budget even partially realized, Tribal expenditures would be significantly decreased. Not only is the BIA budget process a major contributing factor to increased Tribal expenditures, but the Tribe is at the same time made to suffer the indignity of constantly being reproofed for overspending. We have taken note of the Comptroller General's recommendations with regard to S. 1017. We have no basic objections to the various points raised in his recommendations. We have also noted that there are strong recommendations pertaining to tribal accountability for contracted programs. And, we agree that tribes should be accountable for living up to the terms of fully negotiated contracts which they do sign. However, those recommendations and S. 1017 nowhere make any provisions for BIA accountability to Indian tribes. Nowhere is there mention of accountability mechanisms to assure full two-party negotiations between the tribes and the BIA on contracts or accountability of the BIA in providing the tribes with the support systems and technical assistance the tribes will need to effectively administer programs and carry out the provisions of their contracts with the BIA. Similarly there should be provisions for assuring BIA accountability to tribes in terms of the expenditure of BIA funds, including quarterly financial reports to Indian tribes detailing how funds have been spent; the BIA should be accountable to the tribes for reprogramming of budget funds and should not be permitted to reprogram funds without consultation with the tribes. We believe that the overall intent and purposes of the legislation would be significantly enhanced if the law provided the Secretaries with authority to promulgate regulations to carry out the purposes of S. 1017 without being bound by the requirements of the Federal Procurement Regulations. Further, the purposes of the Act would be significantly enhanced if Section 105 of the Bill were to amend the Surplus Property Act to make all federally recognized Indian tribes fully and independently eligible for receipt of surplus property. Lastly, construction activity would be affected by the provisions of S. 1017. The Bill should provide for preferential hiring of Indians on reservation construction projects. The U.S. Supreme Court has finally settled the constitutional question on preference in favor of Indians, and the serious employment problems on reservations require that preference be mandated wherever possible. Provision should also be made for the payment of prevailing wages in conjunction with construction projects. However, we believe there should be some flexibility written into the Bill concerning wages. On the one hand, Indian workers have often been grossly underpaid on construction projects and we therefore favor a requirement that Davis-Bacon rates apply on construction subject to the provisions of this Act. On the other hand, the Davis-Bacon requirements have at times imposed a heavy burden on Indian development and at times have had a destructive net effect. For example, where a tribe is given a fixed amount of money to construct homes, a school, or other facilities, an inadequate budget and/or inflation has often put the tribes in a situation where the requirement to pay Davis-Bacon rates has resulted in a cut-back on construction and/or the construction of inadequate facilities. With a minimum amount of flexibility provided to the tribes in setting wage rates for construction workers, many of these problems could have been avoided. Therefore we support a general provision requiring Davis-Bacon rates, but with a provision permitting that rate to be lowered up to 25% where the Tribal Chairman and the Secretary deem such action as necessary to complete the given project with the funds allocated for it. We strongly endorse Title I of the Indian Self-Determination Act as a potentially historic piece of legislation. We urge that the following considerations be given deliberate consideration in order to assure that the intent of this legisla tion is actually realized and request that they be incorporated into the legislation itself or the Committee Report: 1. A new Office of Assistant Commissioner for Self-Determination should be created. This Office would be responsible for developing and implementing jointly with tribal officials plans for effecting self-determination. 2. Tribes should be provided the necessary funds to obtain independent technical assistance needed in developing and implementing their plans. 3. The Bill should clearly recognize the probability that the initial costs of self-determination and tribal program administration pursuant to the contracting provisions of the Bill will be considerably higher than current costs of program operation; the Bill should provide an authorization to cover these additional costs, above and beyond planning costs, for a period of up to five years. 4. A joint Tribal/BIA personnel plan should be developed in order to place tribal Indians in BIA offices; training of tribal Indians should be funded by BIA. 5. Tribes must have full participation in budget formulation if self-determination is to be fully realized. 6. In regards to the proposed 10% cut in BIA personnel to pay the overhead and administrative costs of self-detemination, these slots should remain on the BIA "books" in order that budgeted funds not be lost and Section 110 of the Bill should be amended to include an unequivocal maintenance of effort provision based on FY 75 funding levels. 7. Mechanisms for BIA accountability should be provided by the Bill for review of BIA decisions and to insure full two-party negotiations in contracting. 8. Quarterly fiscal reports to the tribes should be provided if the tribes are to be able to make up-to-date fiscal decisions. 9. The Secretaries of Interior and Health, Education and Welfare should be free of existing Federal Procurement Regulations in promulgating regulations pursuant to S. 1017. 10. The Bill should permit waiving of the provisions of the Davis-Bacon Act upon the joint agreement of the Secretaries and the Tribal Chairman for purposes of lowering wages by a maximum of 25% pursuant to construction contracts covered by the Bill. 11. Section 105 of the Bill should provide the tribes with full and independent authority to acquire Government surplus property. Thank you. PETER MACDONALD, Chairman, Navajo Nation. STATEMENT OF THE NATIONAL INDIAN YOUTH COUNCIL, ALBUQUERQUE, N. MEX. Honorable Chairman, Members of the Sub-Committee, The National Indian Youth Council is privileged to testify before you on this very important legislation. But first, a little bit about NIYC is in order. The National Indian Youth Council is an organization of 15,000 Indian people nation-wide with over 50 chapters and affiliates. These chapters are located in Indian communities, jr. high schools, high schools, colleges, and universities, and prisons. NIYC is active in civil rights issues, action research projects, and running educational and labor programs. It is conceivable that NIYC is the leader in experimental and innovative educational programs. The National Indian Youth Council national office and the NIYC divisions of Oklahoma, Northern Arizona, Southern Arizona, Nevada, Wisconsin and New Mexico wish to call attention to certain sections of S. 1017. 1. Definitions, Sec. 4(4) "tribal organization," needs clarification. This definition seems cumbersome to the average Indian. 2. Title I Sec. 102(a) (4) . . . "community support for the contract." How can community support be measured for a contract? If this means letters or petitions NIYC will probably out-poll all tribal councils in Oklahoma. 3. Title I Sec. 102(b) (3) . . . "provide the tribe with a hearing . . . and the opportunity for appeal. . ." It appears to NIYC that the avenues of appeal are severely limited by appealing to the one who was responsible for turning you down in the first place. 4. Title I, Sec. 103 (a) (4)—Same comment as the second. 6. Title I, Sec. 104-This section apparently excludes any group that does not have the blessings of the tribal council. NIYC is a little hesitant to rely too heavily upon the tribal chairmen and councils, because many are minority elected because of lack of run-off provisions in many tribal constitutions. 7. Title I, Sec. 106 (c) "... for a term not to exceed one year..." This section appears to be inconsistent with the title of this act. Tribes and tribal organizations can and should be funded for multiple years in order to establish continuity of their perspective programs. 8. Title I, Sec. 170(b) (1) “... to the extent practicable, consult . . .” This section is much to vague; public hearings with opportunity for all Indians to be heard is desirable and should be required. 9. Title II, Part A, Sec. 202, (Sec. 6 ". . . may... be reimbursed by him for the full per capita costs." Does this mean such school districts will receive payment committee sign off on the programs? The public school districts would have to educate our children if there was no such thing as Johnson-O'Malley funds at all. 10. Title II, Part A, Sec. 203(2)(A)“. . . to provide general operating expenditures to schools and school districts educating Indian children." This has been a pain in the past, în such states as Arizona, and the problem will not be alleviated merely by making legal, that which was questionable. 11. Title II, Part C, Sec. 206(d) (2) “... meet the requirements of the State and local building codes... set by the state educational agency ... or by the local government in the jurisdiction within which the facilities are situated." This section quite obviously further erodes the Federal government's trust responsibility to Indian land. The states and other political subdivisions have not been known for their Indian advocacy and they have no legal or moral sense of trust reponsibility. NIYC believes this section to be particularly dangerous to tribally owned land. ... 12. Title II, Part C, Sec. 206 (a) ... “acquisition . . . if such facilities are necessary for the education of Indians . . ." but further the act states in Title II, Part C, Sec. 206 (e) “... Such consultation shall be advisory only..." Again, NIYC believes this part to be inconsistent with the Titles of this Act. 13. Title II, Part G, Sec. 217 (a). Same as No. 8. 14. Title II, Part G, Sec. 219. It is reassuring to know that this act does enable Title IV to continue in effect. However, laced throughout the Act are references to the JohnsonO'Malley Act, which leads NIYC to believe this singular and unique Indian Education Act is in jeopardy. Rather than doing away with the JohnsonO'Malley Act, let this sub-committee urge the Commissioner of Indian Affairs to adopt good sound regulations. The amendments contained in this bill do tighten up the JOM Act, but it means that now Indians will be faced with rigid guidelines at a time when we are attempting to contract more in accordance with stated administration policy, namely self-determination. It is also disturbing to note that Indian students are still going hungry in school. The transfer of the school lunch program for Indians from BIA to the Agriculture Department has failed miserably. Perhaps it would be a good idea to provide for child nutrition through the JOM Act again. And the Bureau has a responsibility to Indian students not only in the BIA boarding schools, but also in the public schools as well. In providing for contracting with local groups, this bill should also provide the necessary police power to insure the best possible benefits for Indian children. If the points raised are not dealt with to the satisfaction of NIYC, rest assured that our chapters and members are standing by to massively oppose this entire bill. The NIYC wants change and legislative reform, but let us undertake this task with caution and in a rational manner. Thank you. Hon. LLOYD MEEDS, U.S. House of Representatives, NATIVE AMERICAN RIGHTS FUND, Cannon House Office Building, Washington, D.C. DEAR CONGRESSMAN MEEDS: I genuinely appreciate your invitation to testify at the hearings on S. 1017 before your Subcommittee on May 20 and 21, 1974. Unfortunately, I have a prior commitment which I have attempted to break but cannot. There are, however, several considerations which I would like to draw to your attention. As you know, a large number of Indian organizations have submitted proposed Johnson-O'Malley regulations (the "Red Regs") to Commissioner Thompson. For your reference, I enclose two copies of the "Red Regs." The "Red Regs" resulted from an inordinate amount of work and study of organizations which are deeply involved in the day-to-day administration of the Johnson-O'Malley program. Since the "Red Regs" were submitted in late February, several other organizations have joined in support of them. We are advised that still more organizations will offer their approval. The "Red Regs" appear to represent a near-unanimous view of the Indian education community on almost all of the provisions in the "Red Regs." Many people in the "Red Regs" group have suggested that the basic principles from the "Red Regs" be incorporated into a new Johnson-O'Malley statute. Title II, Part A of S. 1017 deals directly with Johnson-O'Malley and Title II, Part A already includes amendments to the Johnson-O'Malley Act. Accordingly a new Johnson-O'Malley Act could very logically be included as the main thrust of Title II, Part A. We would hope that you would be particularly interested in the recommendations by the "Red Regs" groups concerning a rewriting of the Johnson-O'Malley Act. I emphasize that any proposed Johnson-O'Malley Act would be extremely short and uncomplicated. I doubt that it would run more than five or six very short sections. Representatives of the "Red Regs" organizations and of several other organizations will be meeting in late May to discuss, among other things, a proposed Johnson-O'Malley Act, as outlined above. Ideally, we would have hoped to present the proposed Johnson-O'Malley Act to you at the hearings on S. 1017. Because of the short notice, however, it has not been possible to arrange a meeting of so many people and to give the many organizations an opportunity to approve the proposed act after the meeting. We anticipate that a proposed act will be presented to you in mid-June. Such a time period will permit us to have time to send out drafts in advance of the meeting, to have thorough discussion of the drafts at the meeting, and to give all organizations sufficient time to act upon the proposed act. For these reasons, we would request that you keep the record open for the submission of the proposed Johnson-O'Malley Act until approximately June 20. It may be that you will think it appropriate to hold an additional one-half day of hearings to discuss the provisions of the proposed act. Again, I emphasize that we would very much prefer to be able to present the proposed act to you at the hearings next week. All of the "Red Regs" groups are, however, working on this important matter as quickly as possible. We believe that the product will be well worth your careful consideration. May I again express my personal regret at my inability to appear before your Subcommittee next week. Very truly yours, CHARLES F. WILKINSON. STATEMENT OF C. STANLEY LOWELL, ASSOCIATE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE S. 1017 is one of those pieces of legislation which, with an ostensibly noble purpose, ends in the performance of mischief. It is a bill designed to permit federal funding for religious schools serving the Indians. The bill authorizes the Secretary of Health, Education and Welfare "to establish and carry out a pro gram of making grants to and contracts with institutions of higher education and other public, private nonprofit organizations or agencies. . . ." The bill would provide $10 million during the first fiscal year and $15 million for each of the two succeeding years for such purposes. The money would be provided for school construction and various educational services for Indians. The purpose here is commendable. It is certainly worthy and highly desirable to improve educational services and standards for the Indians. Unfortunately, the legislation seriously encroaches upon First Amendment liberties as contained in the doctrine of separation of church and state. It is the apparent legislative intent to provide government subsidies to church educational institutions in a manner that the Supreme Court has repeatedly declared offensive to the Religion Clause of the First Amendment. This Amendment forbids Congress to "make any law respecting an establishment of religion or prohibiting the free exercise thereof." Government aid to church schools by any one of a variety of methods has repeatedly been included in this ban. It is not a proper business of government to undertake such a substantial form of aid to religion or, in the process thereof, to become entangled with affairs of religion. What is envisaged here is a series of grants of a general nature to religious institutions, including “private nonprofit organizations or agencies. . . .” The vague and nebulous nature of this proposal would leave it wide open to enormous violation on the church-state count. Not only church schools, but agencies of worship themselves could be directly subsidized by this proposal. What this legislation imperatively needs is a "sectarian disclaimer" which would ban any use of the funds involved for religious institutions. In the Pennsylvania cases, Sloan v. Lemon, decided in June 1973, the Court found that in the institutions involved "more than 90% of the children attending nonpublic schools... are enrolled in schools that are controlled by religious organizations or that have the purpose of propagating and promoting religious faith." The same situation prevailed in other instances where state aid to religious institutions was struck. The same situation would undoubtedly prevail in regard to the aid programs projected in this legislation. It thus becomes clear that the constitutional stricture against aid to religion applies not only to government grants to churches, but also to church schools. Recall now the meaning of the "establishment of religion" clause of the First Amendment as defined by the Supreme Court in Everson v. Board of Education (1947). "The establishment of religion clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state."" This specific doctrine of the First Amendment has been reiterated by the Court on numerous occasions since, as in McCollum v. Board of Education (1948), Zorach v. Clausen (1952), McGowen v. Maryland (1961), Engel v. Vitale (1962); and the general doctrine itself is also set forth in the 1971 cases of Lemon v. Kurtzman and Earley v. DiCenso and in the 1973 cases of PEARL v. Nyquist, Sloan v. Lemon and Levitt v. PEARL. The argument is frequently advanced that Indian affairs provide the exception on the matter of state aid to religion because of the case of Quick Bear v. Laupp (1908). In the legislation then under consideration, however, Congress was dealing not with federal funds but with treaty funds held by the federal government as trustee for the Indians. The Indians themselves were the real owners and the funds, it was found, could be transferred to religious institutions at the designation of the Indians themselves. It is evident that no such condition exists here. This is a proposal to use the taxpayers' funds for religious purposes in a manner proscribed by the First Amendment. The proposals here are quite likely unconstitutional because of the church-state complication. The possibility of such proposals being overturned in the courts cannot be excluded. It would be far wiser for Congress to pursue its legislative purpose by providing financial aid for education to public institutions rather than to those that are sectarian. |