S. 612 - The Indian Needs Assessment and Program Evaluation Act April 5, 2000 Good Morning, I am Britt E. Clapham, II, Deputy Attorney General, Navajo Nation Department of Justice, I am here on behalf of the Navajo Nation and have been authorized by the Intergovemmental Relations Committee of the Navajo Nation Council to provide you with the Navajo Nation's position on S. 612. As background, the Navajo Nation has sought to revise the Federal funding processes, procedures and criteria for more than ten years. In several instances this has included both litigation and advocacy with several agencies within the federal government. The litigation involved Title III of the Indian Child Welfare Act and the funding caps imposed by the Bureau of Indian Affairs (BIA) through regulation and was eventually resolved through a settlement that doubled Navajo Nation funding. A second case involved an action against the State of New Mexico for denial of equal protection in the manner it distributed federal funds to the Navajo Nation. Specifically, these were Social Services Block Grant funds Title XX. We prevailed in both the Federal District Court and in the Tenth Circuit. The United States Supreme Court later denied New Mexico's petition for certiorari. A consistent theme that the Navajo Nation has employed, is that the agencies' funding procedures often fail to match funding to the needs of the Navajo Nation. In the recent past the Navajo Nation actively participated in the efforts of the BIA in response to the Fiscal Year 1998 Appropriation Rider, more commonly known as the Tribal Priority Allocation (TPA) Report. That report demonstrated that the BIA's TPA fails to meet the needs of Indian tribes due to more than $1.3 billion in unmet needs when funding is compared to need that is based on benchmarks from other similar governmental programs operated outside Indian country. The Navajo Nation's unmet need as identified by the TPA Report methodology exceeds $135 million. - 9000 WINDOW ROCK, NAVAJO NATION AZ 86515 520-871-6000 • 520-871-4025 FAX The Navajo Nation believes other federal programs serving Indian communities are similarly underfunded. The Navajo Nation has consistently taken the position that funding for all tribes must be needs-based and that fulfilling those needs must be the driving force in funding federal programs. The concepts embodied in S. 612 are attractive to the Navajo Nation in several respects. First, the requirement that federal agencies periodically assess needs is necessary to determine what level of funding is required to address the issues. Second, in addition to the needs assessment, Section 3(b)(1)(B) also requires the agencies to simultaneously assess the procedures by which funding is awarded and the policy behind the funding initiative. The Navajo Nation's experience has demonstrated that too often not only is the level of funding inadequate to meet actual needs, but that funding requirements, terms and processes often undermine tribal self-govemment. Generally, it does not appear to be a goal of the agency, but by simply adding tribes as eligible recipients of funds to agency system requirements often ignores the sovereign nature of the Indian governments. To succeed in the apparent goal of having a comprehensive Federal Indian funding policy, the amount of funds, the mechanisms for distribution, and the funding management requirements must be examined. The requirement that Indian tribes be consulted within the development of the analysis is essential, provided that consultation is meaningful and not merely a onetime event conducted periodically. The proposed legislation should also define the nature and scope of the consultation process contemplated. While the concepts of S. 612 appear consistent with the Navajo Nation's efforts, several aspects of the bill appear to be confusing. There are references throughout the bill to the Secretary, without clearly defining whether this is the Secretary of the Interior. We assume that it is the bill's intent to have the Secretary of the Interior coordinate the assessments required. It is further unclear why several Departments are not specifically included in Section 3(a)(1). That Section makes no specific mention of the Departments of Health and Human Services, Education or Housing and Urban Development. In fact the Department of the Interior was not included either. If the goal is to address Indian funding needs comprehensively, the failure to include those departments could undermine this process. If the Departments of Interior, Health and Human Services, Education, Housing and Urban Development were not included based upon a belief that these Departments are currently distributing funds based upon need or that there are no problems, one need only look as far as the BIA's TPA Report. The Navajo Nation believes all of these agencies experience the same problems as the BIA. There are also some practical concems with S. 612. Section 3(a)(1) requires a population and service area assessment. Those activities may duplicate ongoing efforts by the BIA and/or the Indian Health Service. It is not clear why those activities would be undertaken when data may already exist. If BIA or Indian Health Service data are used, the consultation process contemplated with Indian governments, could be used to resolve any conditions in the population or service area data. Finally, S. 612 does not appear to create any consequence for a department or agency not to participate or perform the requirements of the periodic assessments the bill contemplates. Fashioning a remedy to address this problem is completed. One could make the agency subject to an action for mandamus in the United States District Court, but the time needed to pursue the action by an Indian tribe could well last as long as the five year period between assessments. Conclusion The Navajo Nation supports the goals and concepts embodied in S. 612, provided it includes all federal agencies funding Indian tribes and govemmental operations. The Navajo Nation also believes that the development of mechanisms needed to accomplish these goals are a proper step in fulfilling the trust responsibility. The National Academy of Public Administrators' recent report on the BIA appears to contemplate a similar undertaking. That report suggests that the Assistant Secretary Indian Affairs pursue policy initiatives through the Domestic Policy Council. See: A Study of Management and Administration: The Bureau of Indian Affairs, August 1999, Pages 36 and 37. That report suggests that the Domestic Policy Council attempt "to coordinate and harmonize programs for American Indian Alaska Natives, thus creating the possibility of more effective and efficient delivery of services." This appears to be a goal very similar to that of S. 612. The combination of the goals may provide a viable vehicle to accomplish what appears to be shared goals. One must understand that ultimately the problem remains funding, once needs are identified, there must be a commitment to appropriate the funds to address those needs. The Navajo Nation stands willing to assist the Committee in accomplishing both the needs assessment and the funding consistent with those needs. Attached please find the copy of my oral testimony and the responses to questions posed by Senator Campbell and Senator Inouye. In regard to the transcribed testimony, I have fully reviewed it and it appears to be accurate as transcribed. Attached to each of the response you will find a questions posed that corresponds to the notes I have made in the blank portions of the testimony transcript. Attachment I - Sets forth the response to the question concerning programs to be evaluated. Attachment II - Sets forth the response to the question concerning federal funds that are available to Tribes through the States. Attachment III - Discusses the joint Navajo Nation and U.S. Bureau of the Census efforts on the 2000 Census. Upon review, please advise if you or the Committee need further information from me or the Navajo Nation. Sincerely, batellit Britt E. Clapham, II Attachment I Senator Campbell requested information on programs that need assessment and/or evaluation. Response The Navajo Nation feels strongly that mechanisms for Needs Assessment and Program Evaluation should be undertaken by the Departments of the United States that provide funds and programs to Indian Tribes and Nations as well as to individual tribal members. The starting place in our view is the Catalog of Federal Domestic Assistance. Attached is the Applicant Eligibility Index from the June 1999 edition of the Catalog. That index identifies, in the extreme right hand column, those programs where a Federally Recognized Indian Tribe is an eligible applicant. That listing should create a universe of programs to be included for needs assessment and evaluation. Obviously, not each of these programs are designed to reflect the unique situations faced by tribes. That universe of programs should then be evaluated to determine program purpose and funding methodology. Of particular interest or focus should be programs/funds provided to Tribes "for the benefit of Indians because of their status as Indians [25 U.S.C. § 450f (a) (E)]. This will focus the inquiry upon truly "Indian programs" rather than programs where both Indians and nonIndians are eligible. Such analysis will require review of the statutory and regulatory frame work that created and implements the programs. Obviously, special attention should be paid to programs within the Department of the Interior, including but not limited to, the Bureau of Indian Affairs, the Office of the Special Trustee for American Indians; the Bureau of Reclamation; the Minerals Management Service; the Bureau of Land Management; and Likewise the Department of Health and Human Services including, but not limited to, the Indian Health Service; the Administration for Native Americans; the American Indian Programs Branch of the Administration for Children Youth and Families (Headstart); and the Temporary Assistance to Needy Families Program. The Department of Housing and Urban Development also has programs that address Indian Housing and Community Development through the Community Development Block Grant program. Similarly the Departments of Agriculture, Energy, Education and Justice and the Environmental Protection Agency operate programs designed to provide special services to American Indians. |