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The FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Public Law 105277, contained the following language concerning the distribution of Tribal Priority Allocations funds:

Sec. 129. (a) In the event any tribe returns appropriations made available by this Act to the
Bureau of Indian Affairs for distribution to other tribes, this action shall not diminish the Federal
Government's trust responsibility to that tribe, or the Government-to-Government relationship between
the United States and that tribe, or that tribe's ability to access future appropriations.

(b) The Bureau of Indian Affairs (BIA) shall develop alternative methods to fund tribal priority allocations (TPA) base programs in future years. The alternatives shall consider tribal revenues and relative needs of tribes and tribal members. No later than April 1, 1999, the BIA shall submit a report to Congress containing its recommendations and other alternatives. The report shall also identify the methods proposed to be used by BIA to acquire data that is not currently available to BIA and any data gathering mechanisms that may be necessary to encourage tribal compliance. Notwithstanding any other provision of law, for the purposes of developing recommendations, the Bureau of Indian Affairs is hereby authorized access to tribal revenue-related data held by any Federal agency, excluding information held by the Internal Revenue Service.

(c) Except as provided in subsection (d), tribal revenue shall include the sum of tribal net income, however derived, from any business venture owned, held, or operated, in whole or in part, by any tribal entity which is eligible to receive TPA on behalf of the members of any tribe, all amounts distributed as per capita payments which are not otherwise included in net income, and any income from fees, licenses or taxes collected by any tribe.

(d) The calculation of tribal revenues shall exclude payments made by the Federal Government in settlement of claims or judgments and income derived from lands, natural resources, funds, and assets held in trust by the Secretary of the Interior.

(e) In developing alternative TPA distribution methods, the Bureau of Indian Affairs will take into account the financial obligations of a tribe, such as budgeted health, education and public works service costs; its compliance, obligations and spending requirements under the Indian Gaming Regulatory Act; its compliance with the Single Audit Act; and its compact with its State.

Section 129 requires the Bureau to submit a report on alternative methods of distributing funds provided under the budget category, Tribal Priority Allocations (TPA). In accordance with the requirement, the Bureau submits the attached report to the Committee.

sinant diben not apply means tests to State and Local

apply to Tribal governments. Therefore, this report masshtë should not

Similar letters are being sent to the Honorable Don Young, Chairman, Committee on Resources, House of Representatives, Honorable George Miller, Ranking Minority Member, Committee on Resources, House of Representatives, and Honorable Frank Murkowski, Chairman, Committee on Energy and Natural Resources, United States Senate, Honorable Jeff Bingaman, Ranking Minority Member, Committee on Energy and Natural Resources, United States Senate, and Honorable Ben Nighthorse Campbell, Chairman, Committee on Indian Affairs, United States Senate.

Sincerely,

имат

Enclosures

Lenna M. Aoki

Director, Office of Congressional and
Legislative Affairs

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This week, conferees to the Interior appropriations bill will consider a measure which would empower Interior Secretary Bruce Babbitt to play

A new

more politics with our Nation's Ind- avenue to

an tribes. Besides promoting corruption in an already corrupt department, the provision would also be counterproductive economic policy, imposing an effective tax on the tribes just now climbing out of poverty.

The provision in the Senatepassed Interior appropriations bill (Section 125) grants the secretary of the interior virtually unlimited authority to redistribute Tribal Priority Allocation (TPA) funds among the tribes on the basis of "unmet needs." In other words, the secretary can take funding away from tribes that are doing better economically and grant it to tribes that are doing worse.

TPA is perhaps the most impor tant government program for tribes. The Bureau of Indian Affairs (BIA) provides TPA to tribal governments to fund basic local gov. ernment services, such as reservation law enforcement and children's education.

This provision creates a terrible potential for corruption. The amendment includes no guidelines for the secretary's authority or definitions of terms such as unmet needs. The secretary could simply redistribute money to tribes who contributed the most campaign finds to the secretary's party, or provided other political support. This is especially so since "unmet needs" are so extensive and obvious throughout Indian country. The record of this sorry, corrupt Interior Department shows that this is a very realistic concern. Earlier this year, Mr. Babbitt was held in contempt of court by US. District Judge Royce Lamberth for officially deceiving the court in a lawsuit over the government's mishandling of 300,000 trust fund accounts totaling $2.5 billion that Interior manages on behalf of American Indians. Judge Lamberth excoriated Mr. Babbitt, saying he engaged in a "shocking pattern of deception of the cart" and "abused the rights of Indiankar obtain these

corruption

trust documents.”

The secretary has also been under independent counsel investigation for an apparent political.connection between 1996 campaign contributions and bis denial of an Indian casino license. In short, Mr. Babbitt's troubling history with the tribes is nothing less than despicable. How could Congress even consider granting Mr. Babbitt broad leeway for even further corruption?

The Senate TPA provision is also horrible policy as a matter of economics. It penalizes those very tribes who have made a strong effort to address their own economic problems. Naturally, if you effectively tax success by reducing established funding when it occurs, then you will get less success.

Moreover, TPA funding arose out of historic treaty obligations, where the federal government promised tribes certain funding in return for their land. While the promises themselves are often not well specified, current TPA funding is a modest fulfillment of them. Granting a federal bureaucrat unlimited discretion to redistribute such funding simply ignores and discounts these obligations, which are still very real and sacred to the tribes.

Today, this funding is analogous to federal aid to states and cities, as tribal governments take the place of state and local governments on reservations. State and local aid is not redistributed based on the economic success or failure of each state. To do this to tribal funding singles out Indians as not worthy of the same federal funding as other citizens.

For these reasons, the tribes are bitterly opposed to the proposed provision, even those who might stand to gain from the funding reallocation. Perhaps they recognize

they will just be subject to campaign contribution shakedowns from corrupt administrations.

Oddly, the provision is the brainchild of BIA head Kevin Gover, himself a Pawnee Indian from Oklahoma, who requested the provision be inserted in the Senate bill. Mr. Gover, whose 18-month, highhanded reign at BIA is generating increasing disgust among the tribes, saw more virtue in increasing the power of his new bureaucrat friends at BIA than in stability and integrity in the tribal funding he administers.

Instead of this socialist approach of redistribution, a better policy would be the capitalist approach of privatizing the BIA. Already about one-third of tribes have contracted out most or all of BIA services, which are again classic local government functions like law enforce ment, education, fire protection, etc. Under this policy, initiated by President Nixon and strongly supported by President Reagan, the tribes are providing better services for less at the local level.

Through this process, the number of BIA employees has been reduced from about 17,000 in 1981 to about 9,500 today. If this policy were expanded to the rest of the tribes, the BIA could be reduced to a small advisory agency.

This policy would promote rather than penalize economic success. Por tribes could then administer their local services to best advance economic growth. Tribes could also structure their services to best meet local needs, enabling them to address more unmet needs without burdening the taxpayers for more money.

The conference on the Interior Appropriations bill should consequently reject the new redistributlonist, corrupting authority for the interior secretary. Instead Congress should direct the BIA to get on with the policy of transferring its funds and authority to the tribes themselves.

Peter Ferrara is general counsel and chief economist at Americans for Tax Reform

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I am taking this opportunity to comment on S.612 introduced March 15, 1999 and referred to the committee on Indian Affairs.

The Mescalero Apache Tribe is in agreement with the concept of this bill and particularly with the following findings:

(1) Pursuant to the Constitution, treaties, statues, Executive order, court decisions, and course of conduct, the United States has a trust obligation to provide certain services to Indian tribes and to Indians,

(2) Federal agencies charged with administering programs and providing services to or for the benefit of Indians have not furnished Congress with adequate information necessary to assess such programs on the needs of Indians and Indian tribes;

(3) Such lack of information has hampered the ability of the Congress to determine the nature, type, and magnitude of such needs as well as its ability to respond to them;

and

(4) Congress cannot properly fulfill its obligation to Indian tribes and Indian people. Often we can not find out what funding is available from Federal Agencies other than Bureau of Indian Affairs.

Time frames to write grants approach the ridiculous as Federal Agencies wait until the last minute to issue their proposal packages and expect tribes to respond in 5 or 10 days.

The purposes of the bill are right on track with tribal needs and will insure that these needs are known to the Congress.

Mr. Campbell
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March 14, 2000

I know that Needs Assessments in general will provide the accountability for the Mescalero Apache Tribe essential to the expenditures of Federal Funds.

I have begun that process here where we will compile a step-by-step approach that will lead to a Needs Assessment Study that not only determines funds but also direction. I call it the Mescalero Apache Tribe Federal Budget Process Modernization Project.

I do not want the unique legal and government-to-government relationship between us to get lost in this process. It is imperative that Congress deals directly or through the Department of Interior with the Mescalero Apache Tribe in determining needs for our Tribe.

Best Wishes with S.612.

Sincerely,

Sara Musque,
Sara Misquez, President
Mescalero Apache Tribe

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