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With that, I might just go specifically into some of the concerns raised by our member tribes regarding S. 612, knowing that at its foundation, certainly, there is the support of the organization for this measure.

One of the concerns raised has to do with confidentiality, a critical issue for our tribes. There is some concern that in its current form, the bill lacks provisions which would ensure proper use of the tribes' unmet needs information. We like to see measures that protect against any misuse of that type of information.

A second point that has been raised to us is that the bill should include provisions on how the information in the Indian needs assessments will set priorities in the budget formulation process. The development of the needs assessment and the annual Indian program evaluations may indeed pose a burden for the agencies, and we want to make sure, Mr. Chairman, that efforts toward assessing the tribes' needs do not draw on resources that indeed should be going directly to the tribes for important programs.

We also believe that program evaluation-the annual listings of the strategic plans-will be helpful for tracking what programs are available to tribes, and how the agencies are doing. We want to make sure, however, that S. 612 does not allow Federal agencies, in the development of their program evaluations, to interfere with the operation of tribal governments, or to expand any monitoring activity on self-determination contracts and self-governance compacts. Certainly, provisions which limit the use of Federal program evaluations should be included in the bill, and the tribal program evaluations should be used when they are available.

Again, I know that it would have been important for the committee to have a tribal leader before them this morning. In the unfortunate circumstances, Chairwoman Rupnicki could not be here, Mr. Chairman; to the extent that it is appropriate and necessary, we would offer that NCAI would help to expedite any questions that the committee might have directly for Ms. Rupnicki through written form, and do what we can to turn those around right away to the committee.

Also, I had mentioned that Jennifer Hughes, who serves as counsel to Ms. Rupnicki, is accompanying me, and between the two of us we could do our best to try to answer some of the questions the committee might have.

With that, again, thank you on behalf of NCAI for the opportunity to share some of our comments and views with you this morning.

[Prepared statement of Ms. Rupnicki, as presented by Ms. Chase, appears in appendix.]

The CHAIRMAN. Thanks for the support of that underlying premise of the bill, and your suggestions, too.

Before we ask some questions, we will go ahead with Britt Clapham, please.

Mr. Clapham.


Mr. CLAPHAM. Mr. Chairman, Mr. Vice Chairman, members of the committee and staff, my name is Britt Clapham. I am the deputy attorney general at the Navajo Nation.

I would first like to thank the committee for the opportunity to discuss S. 612 with you today.

In general, the Navajo Nation supports the spirit and goals of the bill. We believe that without a clear and concise picture of the needs of Indian communities and Indian governments, neither Congress nor the administration can devise programs to address those needs and fulfill the trust responsibility.

The Navajo Nation, through myself and others, worked with Assistant Secretary Gover and Chairwoman Rupnicki on the TPA report. Assistant Secretary Gover mentioned the ICWA Workgroups some 10 years ago. We were instrumental in working on that at that point in time; in fact, we have made efforts to redirect funds to a needs-based methodology over 15 years. Some of that has been through litigation; some of it has been through administrative advocacy. The TPA report was one of those things.

We think that S. 612 appears to be guided in that same direction, as the Navajo Nation has tried over the past 15 years and as the TPA report seeks to do.

That report the TPA report-if you look at it closely, there is data in there that demonstrates that the Navajo Nation's unmet need in TPA alone exceeds $139 million. Questions have been asked of us about why we do not participate in self-governance with the BIA; and frankly, with the unmet need factors that we have, it's robbing Peter to pay Paul to readjust funds from one program to another.

Our biggest effort in the recent years in appropriations has been to try to address the TPA, because that's the core. The other programs that are mentioned and discussed here don't provide stable funding, and we're particularly interested in the provisions of the bill that look at the programmatic aspects as well as the needsbased aspects of the various agencies making funds available. We are aware of the Catalog of Federal Domestic Assistance and the listing of those programs, but we found in many instances that the competitive grant process and the program proposal reporting requirements create as many burdens as benefits.

We would like to explore the possibility of moving to more uniform reporting along the lines of what is in 638, with all the agencies. That would also assist us in reducing the burden on indirect costs. If we had one system to use instead of a multiplicity of systems to report and analyze what program activities are being done, we think we can do that more effectively.

We also express in our written comments some specific concerns with S. 612. We are very concerned that while we see the term "tribal consultation"-and we are supportive of that-we think the bill needs to better define the scope and methodology of any tribal consultation. Too often, an agency makes a decision and then meets to tell us what it is, and we have the opportunity to try to change their minds. That's not consultation, in our view.

We would suggest also that we define the roles more clearly. We have a partial listing, but we noticed that Interior, Health and Human Services, Education, and HUD, though major agencies are not included in the list at section 3(a)(1) of the bill, we think that a way to do this is to look at the Catalog of Federal Domestic Assistance, pull out the agencies that are in there, and include all of them. We would not anyone to assume-especially from the Navajo Nation's point of view, in light of the TPA problems that we're experiencing that these four agencies are meeting all our needs, because they're not.

We are also concerned that there seems to be neither an incentive for the agencies to participate actively, nor any requirement that they do. I've tried to put on my lawyer's hat and think about a way to address that. I come up with the idea of an action in Federal court, but between the periods, we could probably spend 5 years in court litigating whether or not the agency had a duty to do this, and then be in time for the next 5-year reporting period. I'm not sure that that's a positive way to address these issues.

Finally, I have to take issue somewhat with a couple statements that Assistant Secretary Gover made.

The BIA is not prohibited, per se, from imposing standards. They are prohibited from unilaterally imposing standards. Standards in reporting, as the committee is aware, are subject to negotiation in 638 contracts and self-governance compacts. Our experience has been that the BIA has made no reporting proposals through our negotiations on our contracts. We would be willing to actively participate in a process of negotiation on those issues provided the reporting is used in a manner such as Mr. Gover describes. But they are not prohibited. There is a burden to negotiate, but I think that's a fair burden and can be dealt with within the context of the legis lation.

Finally, in conclusion, I know the committee is having a hearing next week on the NAPA report that was done by the National Academy of Public Administrators. My written testimony makes reference to a point in the NAPA report about having the Assistant Secretary for Indian Affairs use the Domestic Policy Council as a vehicle for Government-wide policy development. It may be that that creates an opportunity that the committee and the Assistant Secretary could work together on. We would certainly support that type of activity to support the goals of S. 612 and the ideas that were mentioned earlier today.

Finally, the scholarship model that was discussed-the Navajo Nation may be the biggest single issue in scholarships. Our unmet need using the TPA methodology in scholarships alone was $63 million; 14,000 Navajo applicants were denied scholarships. We would be very encouraged to work jointly with the Assistant Secretary to pursue the types of proposals he is suggesting on scholarships alone.

With that, I would be happy to answer any questions.

[Prepared statement of Mr. Clapham appears in appendix.]

The CHAIRMAN. Thank you for your information. I know, as you do, that the Navajos are not a wealthy tribe in comparison with some, with no casinos and not too many natural resources and a large population. It would be my view that the TPA is all the more

important. I was really astounded at your comment that there are $139 million in unmet needs, and that so many youngsters who have the ability and intelligence and creative resources that ought to go to school are going to be denied scholarships because of that, and I'm sorry to hear that.

But I might also mention, as you alluded to, this bill is a vehicle. When we write it, nobody has all the magic answers around here, so we write a bill hoping that we're doing the right thing, and that's what these hearings are about, to get some information about where we ought to improve it, or if there is something that we ought to drop in the first place.

Let me ask you a couple of questions, starting with JoAnn.

The testimony of the Chairwoman indicates that NCAI has formed a Workgroup on Data Management Needs Assessment and Auditing. Is that correct?

Ms. CHASE. Yes; it is correct.

The CHAIRMAN. And is that workgroup representative of tribes throughout the Nation?

Ms. CHASE. Yes, it is. There are, I believe 12 tribal leaders who are members, representing each of the areas, including an invitation for Navajo to participate with us on the workgroup. And while the funding actually covers travel and costs for those particular tribal leaders to participate, the meetings are open, so we also have the benefit of additional folks who may want to come and share their concerns or comments, participating with us. I mentioned that the group has met twice already in conjunction with the NCAI meeting earlier this year, our Executive Council meeting, and we will be meeting again on the 13th and 14th of this month.

The CHAIRMAN. Is that workgroup concerned with TPA funding only, or is it also considering other non-BIA funds as well?

Ms. CHASE. I believe, sir, that the workgroup is also considering-clearly, the priority is on TPA funding, but it is considering non-BIA funds as well.

The CHAIRMAN. Well, you heard the Assistant Secretary's testimony. They are not too supportive, and that is not really surprising. Sometimes when the committee tries to do something we believe is in the best interest of the Indian people, we sometimes get caught in this "turf overlap" where the administration believes they ought to do it and we shouldn't be interfering. I'm sure you've seen that in your experience.

But do you believe this committee should continue to work on S. 612?

Ms. CHASE. I'm sorry, Mr. Chairman?

The CHAIRMAN. Should we continue to work on S. 612 with a goal of enacting it? Or have the workgroup's activities already duplicated what we're trying to do?

Ms. CHASE. Oh, I think there is a great need for us to continue our collaborative efforts, Mr. Chairman. Certainly, this is a vehicle, as you mentioned, a very positive beginning. The member tribes of NCAI have indicated their fundamental support, and I think the previous TPA Workgroup, in conjunction with some of the recommendations that will be forthcoming from our workgroup, in the end will produce a result very positive for Indian country collectively.

So we look forward to a collaborative effort. I don't see things that are duplicative or redundant at this point, by any means.

The CHAIRMAN. Swell.

I would ask also if you would consider asking the workgroup to look at the bill that I talked about earlier, S. 2052, which consolidates some of our economic development programs.

Ms. CHASE. Absolutely.

The CHAIRMAN. They might be interested in that.

Britt, the Navajo Nation is the largest tribe in the country. I would ask you, does the Navajo support S. 612 insofar as it requires a review of Federal programs that are potentially subject to interagency coordination? You mentioned some of the concerns.

Mr. CLAPHAM. Yes. We would support that, Mr. Chairman. In fact, we would hope that we would be given the opportunity to actively participate

The CHAIRMAN. Yes; well, we would ask if you would, in fact, identify if the tribe could identify the programs that ought to be included, we would appreciate it if you would make that information available to the committee.

We will do that.

The CHAIRMAN. Would the Navajo Nation be willing to share information with the BIA or other agencies if it meant a more equitable distribution of Federal funds? We've heard some concern about confidentiality.

Mr. CLAPHAM. Currently the Navajo Nation submits reports to the BIA on virtually every program it has contracted. My clients are often heard to complain that the reports go in to the Regional Office, but do not filter up the chain to the BIA. I think that there are, in fact, some vagaries in the reporting process. There is more than one model of reports that go in; I know, for example, without a great deal of difficulty I can get you 14 years of quarterly reports from our Social Services Program that they have on record that have been previously submitted to the BIA.

The CHAIRMAN. So as required by law, the tribe turns them in? Mr. CLAPHAM. Right.

The CHAIRMAN. Then sometimes they are not used.

Mr. CLAPHAM. We have differences of opinion; in fact, I am involved in a contract declination matter right now that involves reporting issues, where the Bureau personnel, unfortunately, think that certain types of reports are required, and in our opinion they are not required either by the act or the contract.

The CHAIRMAN. Are you suggesting that there is not a consistent reporting format?

Mr. CLAPHAM. Absolutely true. The TPA report and the TPA Workgroup have acknowledged that, too.

The CHAIRMAN. Thank you.

Senator Inouye, did you have further questions?

Senator INOUYE. Yes: I do.

In serving on this committee for the past several years, I have noted that the Federal Government provides a lot of programs, but they are administered by the States, such as maternal and child health care, which is a block grant. And in many cases, the tribes or the individuals are short-changed. We don't have the staff or the information to come up with the necessary data, but do you people

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