DOCUMENT RESUME ED 363 478 RC 019 361 TITLE Proposed Regulations To Implement the 1988 Amendments to the Indian Self-Determination and Education Assistance Act. Oversight Hearing To Establish a Detailed Timeframe for the Swift Development of New Implementing Regulations with Close Tribal Participation before the Committee on Indian Affairs. United States Senate, One Hundred Third Congress, First Session (May 14, 1993). INSTITUTION Congress of the U.S., Washington, DC. Senate Committee on Indian Affairs. REPORT NO ISBN-0-16-041336-2; Senate-Hrg-103-136 PUB DATE 93 NOTE 244p.; Some pages contain small or broken print. AVAILABLE FROM U.S. Government Printing Office, Superintendent of Documents, Congressional Sales Office, Washington, DC 20402. PUB TYPE Legal/Legislative/Regulatory Materialc (090) EDRS PRICE MF01/PC10 Plus Postage. DESCRIPTORS Alaska Natives; *American Indian Education; American Indians; Bureaucracy; Community Services; Elementary Secondary Education; Federal Aid; *Federal Indian Relationship; Federal Legislation; *Financial Support; Hearings; *Tribally Controlled Education; *Tribal Sovereignty; Tribes IDENTIFIERS Bureau of Indian Affairs; Congress 103rd; Indian Health Service; *Indian Self Determination Education Assistance Act; Tribal Government ABSTRACT Testimony was heard concerning the long delays in implementation of the 1988 amendments to the Indian Self-Determination and Education Assistance Act. These amendments were intended to reverse years of federal agency resistance to the act's original goal of promoting tribal self-determination through tribal contracting of the operation of federal Indian programs. However, despite the amendments' clear timeframe of 10 months for the development of implementing regulations by federal agencies, the regulations had not been developed 5 years later. Representatives of American Indian and Alaska Native tribes and tribally controlled programs discussed: (1) how the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) bureaucracies had subverted Congress's intentions by delaying promulgation of regulations, by misinterpreting the act in a restrictive manner, and by forcing tribal contractors to bear the brunt of financial shortfalls in funded programs; (2) thn lack of tribal participation in the regulatory process; and (3) damaging effects of the delay on provision of educational and health services. Representatives of the BIA and the IHS explained their efforts to draft regulations. A law firm representing several tribes submitted a detailed analysis of the 400 pages of draft regulations being proposed by the BIA and the IHS. (SV) S. HRG, 103-136 PROPOSED REGULATIONS TO IMPLEMENT THE 1988 AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT C:1 HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED THIRD CONGRESS FIRST SESSION ON OVERSIGHT HEARING TO ESTABLISH A DETAILED TIMEFRAME FOR THE SWIFT DEVELOPMENT OF NEW IMPLEMENTING REGULATIONS WITH CLOSE TRIBAL PARTICIPATION MAY 14, 1993 WASHINGTON, DC U.S. DEPARTMENT OF EDUCATION Office of Educational Researct, and Improvement EDUCATIONAL RESOURCES INFORMATION CENTER IERICI //This document has been reproduced as received from the person or orgaruzahon originating it Minor changes have been rnade to irnbrove ( reproduction oualdy Points ot view Or opinrons stated rn Pus docu ment do not necessarily represent ofl.c,al OERI posolron or pouty U.S. GOVERNMENT PRINTING OFFICE r WASHINGTON : 1993 68-408 For sale by the U.S. Government Printing Office Superintendent of Documents. Congressional Sales Olfice. Washington. DC 20402 Cr) ISBN n-16-041336-2 2 . 14k!:.J i.1441..t-L bij A COMMITME ON INDIAN AFFAIRS DANIEL K. INOUYE, Hawaii, Chairman JOHN McCAIN, Arizona, Vice Chairman DENNIS DeCONCINI Arizona FRANK MURKOWSK1, Alaska THOMAS A. DASCHLE, South Dakota THAD COCHRAN, Mississippi KENT CONRAD, North Dakota SLADE GORTON, Washington HARRY REID, Nevada PETE V. DOMENICI, New Mexico PAUL SIMON, Illinois NANCY LANDON KASSEBAUM, Kansas DANIEL K. AKAKA, Hawaii DON NICKI.FS, Oklahoma PAUL WELLSTONE, Minnesota MARK 0. HATFIELD, Oregon BYRON L. DORGAN, North Dakota BEN NIGHTHORSE CAMPBELL, Colorado Zeta, Staff Director PATRICIA M. N. Lewis, Minority Staff Director DANIEL CONTENTS Page Statements: Allen, W. Ron, chairman, Jamestown S'Klallarn Tribe, Sequim, WA 2 Brown, Eddie, Assistant Secretary, Indian Affairs, Department of the Interior, Washington, DC 32 Clapham, Britt, senior assistant attorney general, Department of Justice, Navajo Nation, Window Rock, AZ 27 Cohoe, Bennie, executive director, Ramah Navajo School Board, Rarnah, NM 7 Dean, Bobo, attorney-at-law, Hobbs, Straus, Dean & Wilder, Washington, DC 24 Garcia, Nora, chairperson, Fort Mojave Tribe, Needles, CA 11 Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee on Indian Affairs 1 Lincoln, Mike, Acting Director, Indian Health Service, Rockville, MD 39 Miller, Lloyd Benton, attorney-at-law, Sonosky, Chambers, Sachse, & En- dreson, Anchorage, AK 20 Pe Rola, Gene, executive director, Yukon-Kuskokwim Health Corporation, Bethel, AK 5 Rohn, Buford, health administrator, Poarch Creek Indians, Atmore, AL 16 Skibine, George, Division of Indian Affairs 32 Thomas, Jim, Division of Indian Self-Determination Service 32 Venda 11, Donna, Aberdeen Area Health Board, Aberdeen, SD 9 APPENDIX Prepared statements: Allen, W. Ron 45 Brown, Eddie 54 Clapham, Britt 51 Cohoe, Bennie (with attachments) 57 Dean, Bobo 231 Garcia, Nora 135 Kassebaum, Hon. Nancy Landon, U.S. Senator from Kansas 45 Lincoln, Mike 55 Miller, Lloyd Benton (with attachments) 156 Peltola, Gene 48 Bolin, Buford 149 Venda 11, Donna 130 Note.Other material submitted for the record retained in committee files (U) 4 PROPOSED REGULATIONS TO IMPLEMENT THE 1988 AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT FRIDAY, MAY 14, 1993 U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC The committee met, pursuant to notice, at 9:29 a.m. in room 485, Russell Senate Office Building, Hon. Daniel K. Inouye (chairman of the committee) presiding. Present: Senators Inouye and Kassebaum. STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS The CHAIRMAN. Good morning and welcome to this hearing of the Committee on Indian Affairs. In 1988 the Congress enacted comprehensive amendments to the Indian Self-Determination and Educational Assistance Act of 1975. The 1988 amendments were intended to reverse years of Federal agency resistance to the act's original goal of fostering and promot- ing tribal self-determination through tribally contractive, operation of Federal Indian programs. These amendments were also intended to remove the existing regulatory and statutory barriers to effec- tive and efficient tribal contracting under the act. The 1988 amendments established a detailed timeframe for the swift development of new implementing regulations with close tribal participation. Within 3 months from the effective date of Oc- tober 1988, the two Secretaries were to formulate proposed regula- tions with tribal participation. Within 6 months from the date of enactment, the Secretaries were to submit their proposed regula- tions to the Committee on Indian Affairs and the House Committee on Interior and Insular Affairs. One month after that, the Secretar- ies were to have published their proposed regulations in the Feder- al Register for formal comment. Within a total of 10 months, or August 1989, the Secretaries were directed to promulgate the regu- lations in final form. Now we come to May 1993. As of this moment, nearly 5 years since the amendments were enacted into law, no regulations have been published for notice and comment, and no proposed regula- tions have been promulgated and formally submitted to the Con- gress for review. (1) 2 Moreover, despite assurances last year by both departments that new regulations would be completed by the end of September 1992, it appears that completion of a draft set of implementing regula- tions approved by the proper departmental authorities may be sev- eral months awayhopefully, not 5 years awaywith final pro- mulgation of regulations as far off as another year. In Feb:uary 1993, the departments did release to the committees and to intk,rested tribes a draft set of regulations prior to its clear- ance by either Secretary Babbitt or Secretary Shalala or the Office of Managem,nt and Budget, although this draft had been cleared in January by former Interior Secretary Lujan and former MIS Secretary Sullivan. This draft has refueled deep concerns among Indian and Alaskan Native tribes over what is perceived to be a continuing resistance to, and even defiance of, the original intent of the Congress in en- acting the 1988 amendments. These concerns cut across all issues of contracting, including such areas as contract application and appeal procedures, contract funding, reporting requirements, pro- gram standards, programs division, transfer of administrative pro- grams, indirect cost and contract support costs, and financial man- agement. In the mean time, departmental implementation of the 1988 amendments in the field is reportedly haphazard at best. Due to the depth of the concerns that have been expressed to this committee and the prospect that final promulgation of regula- tions may take another year, the committee has requested ench of the witnesses to share with us their views on the reasons of these excessive delays ard to offer suggestions on what corrective actions might be taken to break the impasse that has frustrated the will of the Concress on behalf of the Indian nations when it enacted the 1988 amendments. The question may be posed in another way. Was this committee established for the BIA or was this committee established for Indian country? Put another way, is this committee impotent, or are we in a position to do something about this? I am certain those of you who know me, know me as a very pa- tient person. But, there is a limit. I will not tolerate any further defiance of the Congress of the United States. [Prepared statement of Senator Inouye appears in appendix.] The CHAIRMAN. Our first panel consists of the chairman of the Jamestown S'Klallam Tribe, W. Ron Allen; chairperson of the Fort Mojave Tribe of California, Nora Garcia; the executive director of the Ramah Navajo School Board of New Mexico, Bennie Cohoe; ex- ecutive director of the Yukon-Kuskokwim Health Corporation of Alaska, Gene Peltola; the Aberdeen area health board member of South Dakota, Donna Vandall; The health administrator of the Poarch Creek Indians of Alabama, Buford Roland. Please step for- ward. Chairman Allen. STATEMENT OF W. RON ALLEN, CHAIRMAN, JAMESTOWN S'KLALLAM TRIBE, SEQUIM, WA Mr. ALLEN. Mr. Chairman, good morning. Thank you for the op- portunity to be here before you to make this presentation. 6 a 3 You have my written testimony. If I might ask, the panel of tribal leadership has prepared a set of presentations here that have a certain order that we'd like to beg your indulgence of a shiftirg the players around, asking Mr. Peltola to follow me, then Mr. Cohoe to follow him, Ms. Vandall to follow Mr. Cohoe and Nora Garcia, and concluding with Mr. Roland. We think if we get all of the highlighting points of these issues in order, we feel our testimo- nies will be of more interest to the committee. The CHAIRMAN. That is fine. And, if you do have prepared state- ments, they will be made part of the record. Mr. ALLEN. Thank you very much. Well, it's only been half a decade since we were trying to put these regulations together and, quite frankly Mr. Chairman, it's not a very good commentary for the attitude and the disposition of trying to make this act a reality. For centuries, as you know, the tribal people have been the most manipulated, the most regulated and the most controlled people in the United States. It's a relation- ship something that's been quite frustrating for us. We also are frustrated that every time the tribes have something of valueit doesn't matter whether it's gold, oil, tax privileges, a gaming activi- ty, or just exercising our governmental authoritywe always seem to find that experience or that opportunity being taken away from us or being constricted or restricted in one way or another. Quite frankly, we think that's what we're dealing with with regard to these regulations. I think there's basically a sort of a psychological barrier or set of principles that we're struggling with and that is that the bureaus, whether it's IHS or BIA, that they're constantly unwilling to inter- pret the law liberally in the interest of the tribes exercising their sovereign or governmental authority. That really saddens us, be- cause as tribal leadership we've been very patient and we've been diligent at trying to make it a reality. We have worked with them, we have shared with them our views, we have shared with them our involvement in developing laws and persuading Congress to take a particular course of action. But, we have not availed yet townrd any kind of successful or regu- latory condition that we think reflects this relationship. Yet, we will persist and we are persisting as fast as we possibly can. We know that this committee is very well aware of the intent of the Public Law 93-638 Amendment Act, and what the original Act was trying to do. We feel that the main objective was to pro- vide direct control, so that the tribes can discern for themselves, their own prioritization for Federal resources, and that these laws and regulations reflect the conditions that would give us that kind of liberty, that kind of discretion. I think that the self-government demonstration project reflects that objective. Enacted and approved at the same time, you see a great deal of success in self-government in those tribes that are ac- tually implementing that law right now. It really does reflect what these amendments were intended to do and are very successful. Quite frankly, the other tribes that should be enjoying the same kind of privileges and opportunities through these regulations, through the 638 contracting, are not enjoying those same opportu- nities, and they should be, rightfully so. 4 regulations The length of time to develop the Public Law 93-638 changed the is somewhat our fault, to a certain extent, because it be relationship nd the rules including the notion that we're not to the manage- just consulted with, we're actively participating in than it appears ment of Indian programs. That's more complicated 500 tribes, that's diffi- on the surface because when you've got over observe the cult to do. Yet, you'll notice in the beginning, if you that over 400 reports and the minutes of the meetings, you'll see tribes were represented and, of course, that representation nar- in the rowed down because the confidence of t..e. Indian leadership comfortable people who remained actively participating and were would that their issues were being addressed. That participation system, slow the process down naturally because you're changing a you're changing a mentality. the On the other hand, it doesn't justify what's happened over forum in last 2.5 to 3 years, because it really has taken place in a attitude of al- which our participation has not been there and the there, lowing us to actively help shape these regulations are not still not will- the administration is still not willing to let go, they're ing to let us control our own affairs. it I think that this experience is a sad experience because, to me, English lan- shows a bureaucracy that, in my judgment, twists the restrictive views or in- guage of the law to the interest of the most in their inter- terpretation. %There they want the law to be liberal they want it to be est, they will interpret it that way, but where Quite frank- restrictive for control, they will interpret it that way. and we are ly, it is regularly contrary to where the tribes stand I think always chipping away at them, but with very little success. where we are today really reflects that attitude. language We are asking for additional regulatory amendment through and some people have charged us with micrornanaging going to try to Congress but, quite frankly, if the bureaucracy is in line at a hot treat tribes as vendors, almost as if we're standing ask Con- dog stand at a national park, well, we're going to have to concise statutory language gress to assist us in giving some clear, rights that that says that the tribes do have these privileges, and we're trying allow us to act as legitimate governments. That's what liberate the tribes to accomplish, not to be restricted, but asking to to a from the harness of bureaucratic control. It is micromanaging that certain extentit is only because we are breaking a harness has been around us now for over 200 years. these So, we are asking the Congress, basically, to help us get the regulations published, and we mean expeditiouslynot over forward. We do next 41/2 years or whateverwe need to move them precise legislative language due to the fact need some addition t. that we that we have revealed some bureaucratic recalcitrance and that Ls not willing to let go or in- are experiencing with the system terpret the law liberally. in We want to advance the notion of participating in the system government-to-government basis. We are a meaningful way on a been changing old ways, and we are trying to change attitudes. I've ad- appreciative of people like Dr. Eddie Brown who has tried to that you've got systems that vance this concept, but the reality is if aren't willing to change easily and it's difficult to change even 8 5 the attitude is positive at the top. But, we're not going to give up, Indian country will never give up. We're still going to persevere, we're still going to move this concept forward and change the way tribes do business with the Federal Government. We think that we have shown successes, as I pointed out, with the self-governance project. We know that once the 'ribes are pro- vided these privileges and liberties that we believe the Congress in- tended for us, that you're going to see many successes. You're going to see tribes control and address the problems that you know very well, that exist throughout Indian country. With that, I conclude my comments. Thank you, Mr. Chairman. [Prepared statement of Mr. Allen appears in appendix.] The CHAIRMAN. Thank you. I believe the next person you want is Mr. Peltola. Mr. ALLEN. Yes. The CHAIRMAN. Mr. Peltola. STATEMENT OF GENE PELTOLA, EXECUTIVE DIRECTOR, YUKON- KUSKOKWIM HEALTH CORPORATION, BETHEL, AK Mr. PELTOLA. Thank you, Mr. Chairman. My name is Gene Fel- tola and I've traveled 11 hours and almost 5,000 miles to testify today. I am the president of the Yukon-Kuskokwim Health Corporation in Bethel, AK, the largest tribal health contractor in the United States. I'm also the chairman of the Alaska Association of Regional Health Directors and our organization is a member of the Alaskan Native Health Board. Our tribal organization, actually a consortium of 50 remote Yup'ik and Athabascan Tribes located in the Yukon-Kuskok wim River Delta, provides comprehensive primary, secondary, and pre- ventive health care services to nearly 2,000 Indian Native Ameri- can people spread out across a roadless region of tundra and rivers approximately the size of the States of Oregon or Kansas. To put this in further perspective, our region is larger than the combined New England States of Maine, Connecticut, Vermont, New Hamp- shire, Massachusetts, and Rhode Island. Mr. Chairman, for this entire vast area, there is only one medi- cal facility, YKHC's hospital, and only one health care provider, YKHC. Ours is a vast region of extreme climates and enormous barriers to the effective delivery of health care. As a consequence, the health status of our people is, in some categories, among the very lowest of all Native American tribes in the United States. As the committee is aware, many of these conditions are duplicated, although perhaps not quite as accurately, as in the other remote areas of Alaska. You are familiar, yourselves, with the Delta, since you traveled there about 4 years ago. Over the course of 24 years, YKHC has taken over the operation of increasing portions of the Indian health service system under the authority of Indian self-determination. This has been the direct product of our tribes' desire to control and improve our health care delivery system. The same trend has been evident elsewhere in the Alaska area, where tribes today operate virtually all IHS programs 6 other than the Anchorage hospital, and the area's administrative offices. In October 1991, Yukon-Kuskokwim Health Corporation took over the last remaining portion of the IHS system in our region, that being the Bethel hospital. With the addition of these hospital programs today YKHC employs approximately 600 people, operates 48 village-based clinics, and administers a reoccurring IHS budget in excess of $26 billion. As you know, an indirect cost rate is what sustains the adminis- trative overhead of a tribe's Federal programs. When YK more than doubled the size of its programs, region 10 of the Department of Health and Human Services negotiated a new indirect costs rate for our entire organization. Today, my oral testimony will focus on the problems stemming from that process, Mr. Chairman, problems which persist, notwithstanding the 1988 Indian Self-Determination Act amendments. In our case, the Federal negotiators at DHHS approved a rate translating to approximately $7 million in indirect costs funds deemed by the government, not just us, to be appropriate and nec- essary for IHS to support the direct service programs covered by our contract. But, when it came time to finalize our contract, IHS included only $4 million in actual indirect costs funding. The result was a $3 million shortfall in indirect costs in fiscal year 1992 alone. The same problem is again happening in fiscal year 1993 and it has been duplicated throughout our area. Mr. Chairman, tribal contractors cannot operate programs with- out full indirect costs. At YKHC we, like any hospital in America, need these funds to operate our payroll systems; our personnel sys- tems; our procurement systems; our administrative offices; our ac- counting systems; our employee training programs; our monitoring- auditing functions; our risk management programs; our quality control programs; our facility, utility, and housekeeping costs; our insurance costs; our office overhead; and so on. For us, the $3 million shortfall suffered in fiscal year 1992 and being experienced again during this current fiscal year has forced upon us the very hardest choices. We've had to shift money away from other programs and lay off over 40 employees. We have re- duced services throughout our system and will be faced with even greater cuts later this year. In fact, shortly after this panel con- cludes their testimony, I'm jumping on an airplane and I'm meet- ing with my CFO and my hospital administrator in Bethel tomor- row at 9 Our tribal organizations in Alaska have suffered the same fate, particularly Chikatchamute, Mineluk, arid the Southeast Alaska Regional Health Corporation. So, too, as you will hear, the same problem is faced in California, New Mexico, and in our eastern States. In my written testimony, I tried to explain what YK could do were it not suffering from the current indirect costs shortfall, to give you a concrete sense of what this all means on the ground. The six additional physicians we could hire woulJ provide an esti- mated 12,000 patient contacts in areas of internal medicine, gener- al family practice, and village visits. We could also provide early cancer screening and detection and childhood screening in schools. t