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Indian Preference at Bureau of Indian Affairs (2)
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Indian Preference at Bureau of Indian Affairs (2)
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Civil service
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The original documents are located in Box 3, folder "Indian Preference at Bureau of Indian
Affairs (2)" of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
ACTION PLAN STEPS
Appendix C
Digitized from Box 3 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
Responsible
Number
Action
Time frame
official
G 1
Establish an effective institutional focus for internal management
First half FY 77
Commissioner w/
G 2
Establish and operate an analytical program in the organizational,
First half FY 77
Commissioner
manpower allocation/utilization, and work methods areas
G 3
Design and conduct a program evaluation operation
During FY 77
Commissioner
G 4
Develop a communication/team work management style
During FY 77
Commissioner
G 5
Institute a management development program
First half FY 77
Commissioner &
Director of Adi
HR 1
Forecast the Bureau's manpower needs
Qtr 2 - FY 77
Director of Adm
& Chief P.O.
HR 2
Institute a. positive recruitment system
First half FY 77
Director of Adm
& Chief P.O.
HR 3
Develop and operate an Indian intake-and-development program
During FY 77, for Commissioner &
for Qtr 1, FY78, class Director of Adi
HR 4
Take steps to grow Indian candidates for technical/specialist
During FY 77
Commissioner &
positions
Director of Adi
HR 5
Issue guidelines on the application of Indian preference
Qtr 1 - FY 77
Chief P.O.
HR 6
Obtain legislative modifications in Indian preference
During FY 77
Commissioner &
Director of Adi
HR 7
Further facilitate outplacement of non-Indians
First half FY 77
Commissioner &
Director of Adr
HR 8
Develop qualification standards/guidelines for major types of
Qtr 3 - FY 77
Chief P.O.
positions
HR 9
Improve procedures for determining qualifications for specific
During FY 77
Chief P.O.
vacancies
HR10
Reissue updated and more specific guidelines for tribal consultation
During FY 77
Commissioner
on personnel selections
HR11
Develop and operate an effective position mgmt/classification program
During FY 77
Chief P.O.
HR12
Conduct management orientation and supervisory training in pers. mgmt.
Qtr 3 - FY 77
Chief P.O.
PF 1
Redefine and clarify the role of a personnel office
First half FY 77
Chief P.O.
PF 2
Establish a program planning system
Qtr 1 - FY 77
Chief P.O.
PF 3
Provide Bureauwide coordination within the function
Qtr 1 - FY 77
Chief P.O.
PF 4
Improve operational methods
During FY 77
Chief P.O.
PF 5
Conduct an evaluation program
Qtr 1 - FY 77
Chief P.O.
500
NOTE: Where It is leastite. " syllabus (headaote) will be re-
HOR530
leaved. as I: being done 11, consection with 11:11 care. at C.e time
the optition 1.- requed. The syllates constitutes 1.0 part 1.1 the optoten
of 11:0 Count bil 111.5 been prepared in the Reporter of Decisions for
BB 532A
the COLLECTION of the Sec Inted 21:10 Y. Detroit Lumber
Cc., 200 U.S. 321, 337.
CPP
SUPREME COURT OF THE UNITED STATES
Syllabus
MORTON, SECRETARY OF THE INTERIOR, ET AL.
1580
v. MANCARI IT AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOX THE
DISTRICT OF NEW MEXICO
No. 73-362. Argued April 21, 1974-Decided June 17, 1974*
Appeliees, non-Indian employees of the Bureau of Indian Affairs
(BIA), brought this class action claiming that the employment
preference for qualified Indians in the BIA provided by the Indian
Reorganization Act of 1931 contravened the anti-diserimination
provisions of The Equal Employment Opportunities Act of 1972,
and deprived them of property rights without due process of law
in violation of the Fifth Amendment. A three-judge District
Court hold that the Indian preference was implienly repealed by
§11 of the 1972 Act prescribing racial discrimination in most
federal employment. and commed appellant federal officials from
implementing any Indian employment preference policy in the
Wn
BIA. Held:
1. Congress did not intend to repeal the Indian preference, and
the District Court erred in holding that it was repealed by the
1972 Act. Pp. 0-16.
(a) Since in extending general anti-discrimbation machinery to
federal employment in 1972, Congress in no way modified and thus
reaffimmed the preferences accorded Indians by $ 701 (b) and
703 (i) of Title VII of the Civil Rights Act of 1901 for employ-
ment by Indian tribes or by private industries located on or near
Indian reservations. it would be anomalous to conclude that
Congress intended to eliminate the longstanding Indian prefer-
onces in BIA employment, as being racially discriminatory.
Pp. 12-13.
(b) In view of the fact That shortly after it passed the 1972
*Together with No. 73-304, Amerind v. Mancari cl al., also on ap-
peal to the same court.
I
If
MORTON ". MANCARI
Syllabus
Act Congress emacted new Indian preference laws as part of the
Education Amendments of 1972 giving Indians preference in Cov-
erninent programs for training teachers of Indian children. it is
improbable that the same Congress condemned the BIA preference
as racially discriminatory. P. 13.
(c) The 1972 extension of the Civil Rights Act to Government
employment being largely just a codification of prior anti-discrimi-
nation Executive Orders, with respect to which Indian preferences
had long been treated as exceptions, there is no reason to presume
that Congress affirmatively intended to crase such preferences.
Pp. 13-14.
(d) This is a prototypical case where an adjudication of repeal
by implication is not appropriate, since the Indian preference is a
longstanding, important component of the Government's Indian
program, whereas the 1972 anti-discrimination provisions, being
aimed at alleviating minority discrimination in employment, are
designed to deal with an entirely different problem. The two
statutes, thins not being irreconeilable, are capable of co-existence,
since ii.e Indian preference, as a specific statute applying to a
specific situation. is not controlled or nullified by the general provi-
sions of the 1972 Act. Pp. 11-15.
:: The Indian preference does not constitute invidious racial
discrimine [on in violation of the Due Process Clause of the Fifth
Amendment bu is reasonable and rationally designed to further
Indian self-government. Pp. 16-20.
(a) If Indian preference laws, which were derived from histor-
ical relationships and are explicitly designed in help only Indians,
were deemed invidious racial discrimination. 25 U. S. C. in its
entirety would be effectively erased and the Government's commit-
ment to Indians would be jeopardized. Pp. 16-17.
(b) The Indian preference does not constitute "racial
discrimination" or even "racial" preference. but is rather an
employment criterion designed to further the cause of Indian
self-government and to make the BIA more responsive to the
needs of its constituent groups. Pp.
IS-19.
(c) As long as the special treatment of Indians can be fied
rationally to the fulfillment of Congress' jue obligation toward
Indians, such legislative judgments will not be disturbed. Pp. 19-
20.
359 F. Supp. 5S5, reversed and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
NOTICE: This optation 1. subject to formal rev! for before poblication
In the pretir dairy point 01 U. United Mates Reports. Readers are 11'.
quested to Enthr the Reporter "I Dec: lons, Supteme Court of 11:c
United States. Washing ton, D.C. 2033, of any maphical 05 where
formal itters. Is order that corrections may 110 made before the pre.
himinary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 73-362 AND 73-364
Rogers C. B. Morton, Secre-
tary of the Interior, cl al.,
Appellants,
On Appeals from the
73-302
v.
United States District
C. R. Mancari cl al.
Court for the District of
New Mexico.
Amerind, Appellant,
73-361
v.
C. R. Mancari et al.
[June 17, 1974]
MR. JUSTICE BLACKMUN delivered the opinion of the
Court.
The Indian Reorganization Act of 1934 accords an
employment preference for qualified Indians in the Bu-
reau of Indian Affairs [BIA]. Appellees, non-Indian
BIA employees, challenged this preference as contrary
to the anti-discrimination provisions of the Equal Em-
ployment Opportunity Act of 1972, and as violative of
the Due Process Clause of the Fifth Amendment. A
three-judge federal district court concluded that the In-
dian preference under the 1934 Act was impliedly re-
pealed by the 1972 Act. Mancari V. Morton, 359 F.
Supp. 5S5 (N. M. 1973). We noted probable jurisdic-
tion in order to examine the statutory and constitutional
validity of this longstanding Indian preference. 111
U.S. 1142 (1974).
73-302 & 73-364--OPINION
2
MORTON U. MANCARI
I
Section 12 of the Indian Reorganization Act, also
known as the Wheeler-Howard Act, 48 Stat. 9S6 (1934),
25 U.S. C. $ 472, provides:
"The Secretary of the Interior is directed to CS-
tablish standards of health, age, character, experi-
ence, knowledge. and ability for Indians who may
be appointed. without regard to civil-service laws,
to the various positions maintained, now or here-
after, by the Indian Office,' in the administration of
functions or services affecting any Indian tribe.
Such qualified Indians shall hereafter have the pref-
erence to appointment to vacancies in any such
positions.'
2
In June 1972. pursuant to this provision. the Commis-
sioner of Indian Affairs, with the approval of the Secre-
tary of the Interior, issued & directive (Personnel Man-
agement Letter No. 72-12) stating that the BIA's
policy would be to grant a preference to qualified Indians
not only, as before. in the initial hiring stage, but also
in the situation where an Indian and a non-Indian, both
already employed by the BIA, were competing for a pro-
motion within the Bureau. The record indicates that
this policy was implemented immediately.
1 The Indian Health Service was transferred in 1954 from the De-
partment of the Interior to the Department of Health, Education,
and Welfare. Act of August 5, 1954. §1, 08 Stat. 674, 42 U. S. C.
§ 2001. Presumably, despite this transfer. the reference in $ 12 to the
"Indian Office" has continuing application to the Indian Health
Service. See 5 CFR S 213.3116 (b) (S) (1974).
"There are earlier and more narrowly drawn Indian preference
statutes. 25 U.S. C. SS 44, 45, 46, 17, and 271. For all practical
purposes, these were replaced by the broader preference of $ 12.
Although not directly challenged in this litigation, these statutes,
under the District Court's decision, clearly would be invalidated..
[Footnote 3 is on P. 3]
73-362 & 73-301-OPINION
MORTON v. MANCARI
3
Shortly thereafter, appellees, who are non-Indian em-
playees of the BIA at Albuquerque, instituted this class
action, on behalf of themselves and other non-Indian
employees similarly situated, in the United States Dis-
trict Court for the District of New Mexico, claiming that
the "so-called Indian Preference Statutes' were re-
pealed by the 1972 Equal Employment Opportunity Act
and deprived them of rights to property without due
process of law, in violation of the Fifth Amendment.3
Named as defendants were the Secretary of the Interior,
a The directive stated:
"The Secretary of the Interior announced today [June 23, 1972]
he has approved the Bureau's policy to extend Indian preference to
training and to filling vacancies by original appointment, reinstate-
ment, and promotion. The new policy was discussed with the na-
tional president of the National Federation of Federal Employees
Mancare
under national consultation rights NFFE has with the Department.
Secretary Morton and I jointly stress that careful attention must
be given to protecting the rights of non Indian employees. The new
policy provides as follows: Where two or more candidates who meet
the established qualification requirements are available for filling a
vacancy, if one of them is an Indian, he shall be given preference in
filling the vacancy. This new policy is elfective immediately and is
incorporated into all existing programs such as the promotion pro-
gram. Revised manual releases will be issued promptly for review
and comment. You should take immediate steps to notify all
employees and recognized mions of this policy."
The appellees state that none of them is employed on or near an
Indian reservation. Brief for Appellees S. The District Court
described the appellees as "teachers
or programmers, or in com-
puter work." Mancari V. Morton, 359 F. Supp. 5S5, 5S7 (N. M.
1973).
5 The specific question whether § 12 of the 1931 Act authorizes a
preference in promotion as well as in initial hiring was not decided
by the District Court and is not now before us. We express no
opinion on this issue. See Freeman V. Morton -- U. S. App.
D.C. , F. 2d - (1974). See also Mescolero Apache Tribe
v. Hickel. 432 F. 2d 956 (CA10 1070), cert. denied, 401 U. S. 9S1
(1971) (preference held inapplicable to reduction in force).
73-362 & 73-361-OPINION
11
MORTON v. MANCARI
the Commissioner of Indian Affairs. and the BIA Di-
reclors for the Albuquerque and Navajo Area Offices.
Appellees claimed that implementation and enforcement
of the new preference policy "placed and will continue to
place [appellees] at a distinct disadvantage in competing
for promotion and training programs with Indian em-
ployees. all of which has and will continue to subject the
[appellees] to discrimination and deny them equal ein-
ployment opportunity."
A three-judge court was convened pursuant to 28
U.S. C. $ 2282 because the complaint sought to enjoin,
as unconstitutional. the enforcement of a federal statute.
Appellant Amerind, a nonprofit organization representing
who put up their
Indian employees of the BIA, moved to intervene in
?
support of the preference; this motion was granted by
money?
the District Court and Amerind thereafter participated
at all stages of the litigation.
After a short trial focusing primarily on how the new
policy, in fact. has been implemented. the District Court
concluded the Indian preference was implicitly re-
pealed by % 11 of the Equal Employment Opportunity
Act of 1972. Pub. 1. 92-261, S6 Stat. 111, 42 U. S. C.
(Supp. II 1973) % 2000c-16 (a), proscribing discrimina-
tion in most federal employment on the basis of race."
Section 2000s-16 (a) reads:
"All personnel actions affecting employees or applicants for cm-
playment (except with regard to aliens employed outside the limits
of the United States) in military departments as defined in section
102 of Title 5, in executive agencies (other than the General Ac-
counting Office) as defined in section 105 of Title 5 (including cm-
ployees and applicants for employment who are paid from nonap-
propriated funds), in the United States Postal Service and the Postal
Rate Commissioner, in those units of the Government of the District
of Columbia having positions in the competitive service, and in those
units of the legislative and judicial branches of the Federal Govern-
ment having positions in the competitive service, and in the Library
73-362 & 73-361-OPINION
MORTON U. MANCARI
5
Having found that Congress repealed the preference, it
was unnecessary for the District Court to pass on its
constitutionality. The court permanently enjoined ap-
pellants "from implementing any policy in the Bureau
of Indian Affairs which would hire, promote, or reassign
any person in preference to another solely for the reason
that such person is an Indian." The execution and en-
forcement of the judgment of the District Court was
stayed by MR. JUSTICE MARSHALL on August 16, 1973;
pending the disposition of this appeal:
II
The federal policy of according some hiring preference
to Indians in the Indian service dates at least as far back
as 1834.' Since that time, Congress repeatedly has en-
acted various preferences of the general type here at
issue. The purpose of these preferences, as variously
expressed in the legislative history has been to give In-
dians a greater participation in their own self-
of Congress shall be made free from any discrimination based on
race, color, religion, SCN, or national origin."
7 Act of June 30, 1834, § 9, 4 Stat. 737, 25 U.S. C. $ 45:
"In all cases of the appointments of interpreters or other persons
employed for the benefit of the Indians, a preference shall be given
to persons of Indian descent, if such can be found, who are properly
qualified for the execution of the duties."
$ Act of May 17, ISS2, § 6, 22 Stat. SS, and Act of July 1, 1SS1,
§ 0, 23 Stat. 97, 25 U.S. C. § 46 (employment of clerical, mechanical,
and other help on reservations and about egencies); Act of August 15,
1891, § 10, 28 Stat. 313, 25 U. S. C. § 14 (employment of herders,
teamsters, and laborers, "and where practicable in all other cin-
playments" in the Indian service); Act of June 7, 1897, $ 1, 30 Stat.
S3, 25 U. S. C. § 274 (employment as matrons, farmers, and in-
dustrial teachers in Indian schools); Act of June 25, 1910, § 23, 30
Stat. SG1, 25 U.S. C. § 17 (general preference as to Indian labor and
products of Indian industry).
73-302 & 73-361-OPINJON
6
MORTON v. MANCARI
government; 0 to further the Government's trust obliga-
tion toward the Indian tribes; 10 and to reduce the nega-
tive effect. of having non-Indians administer matters
that affect Indian tribal life."
The preference directly at issue here was enacted as
an important part of the sweeping Indian Reorganization
Act of 1934. The overriding purpose of that particular
Act was to establish machinery whereby Indian tribes
would be able to assume a greater degree of self-govern-
ment, both politically and economically."2 Congress was
9 Senator Wheeler, co-sponsor of the 1934 Act, explained the need
for a preference as follows:
"We are setting up in the United States a civil service rule which
prevents Indians from managing their own property. It is an c-11-
Oncly different service from anything clse in the United States be-
cause these Indians own this property. It belongs to them. What
this policy of this Government is and what it should be is in teach
these Indians to manage their own business and control their own
funds and to administer their own property, and the civil service
has worked very nearly so far as the Indian Service is concerned
"
Hearings before the Senate Committee on Indian Allairs on S. 2755
and S. 3645 (Part 2), 70d Cong., 2d Seas, 250 (1934).
10 A letter, contained in the House Report to the 1934 Act, from
President F. D. Roosevelt to Congressman Howard states:
"We can and should, without further delay. extend (.) the Indian
the fundamental rights of political liberty and local elf-government
and the opportunities of education and economic assistance that they
require in order to attain a wholesome American life. This is but
the obligation of honor of a powerful nation toward a people living
among us and dependent upon-our protection." II. R. Rep. No. 1804,
731 Cong., 2d Sess, S (1931).
" "If the Indians are exposed to any danger, there is none greater
than the residence among them of unprincipled white men." 11. R.
Rep. No. 474, 23d Cong., 1st Sess., 98 (1S34) (letter dated
February 10, 1834, from Indian Commissioners to the Secretary of
War).
12 As explained by John Collier, Commissioner of Indian Affairs:
"[T]his bill is designed not to prevent the absorption of Indians in
73-362 & 70 001-OPINION
MORTON l'. MANCARI
7
seeking to modify the then-existing situation whereby
the primarily non-Indian-staffed BIA had plenary con-
trol, for all practical purposes. over the lives and destinies
of the federally recognized Indian tribes. Initial con-
gressional proposals would have diminished substantially
the role of the BIA by turning over to federally chartered
self-governing Indian communities many of the func-
tions normally performed by the Bureau." Committee
sentiment, however, ran against such a radical change
in the role of the BLA." The solution ultimately
adopted was to strengthen tribal government while con-
tinuing the active role of the BIA, with the understand-
ing that the Bureau would be more responsive to the
interests of the people it was created to serve.
One of the primary means by which self-government
would be fostered and the Bureau made more responsive
was to increase the participation of tribal Indians in
the BIA operations." In order to achieve this end, it
was recognized that some kind of preference and exemp-
Gon from otherwise prevailing civil service requirements
white communities, but rather to provide for these Indians unwilling
or unable to compete in the white world some measures of self-gov-
ernment in their own affairs." Hearings on S. 2735 before the Senate
Committee on Indian Affairs (Part 1), 72d Cong., 2d Sees, 26 (1934).
13 Hearings before the House Committee (:11 Indian Affairs on
JI. R. 7902, Readjustment of Indian Affairs, 734 Cong., 2d Sess, 1-7
1931 [House Hearings]. Sce also Mescalaro Apache Tribe V. Jones,
111 U.S. 145, 152-153, In. 0 (1973).
" House Hearings 491-197.
15 "[Section 12] was intended to integrate the Indian into the
government service connected with the administration of his af-
fairs. Congress was anxious to promote economic and political self-
determination for the Indian" (footnote omitted). Mescalero
Apache Tribe V. Hickel, 432 F. 2d, at 900.
73-302 & 73 361--OPINION
8
MORTON v. MANCARI
was necessary." Congressman Howard, the House
sponsor, expressed the need for the preference:
"The Indians have not only been thus deprived
of civic rights and powers, but they have been largely
deprived of the opportunity 10 enter the more im-
portant positions in the service of the very bureau
which manages their affairs. Theoretically, the In-
dians have the right to qualify for the Federal civil
service. In actual practice there has been no ade-
quate program of training to qualify Indians to
compete in these examinations. especially for tech-
nical and higher positions; and even if there were
such training. the Indians would have to compete,
under existing law. on equal terms with multitudes
of white applicants
The various services on
the Indian reservations are actually local rather
than Federal services and are comparable to local
municipal and county services, since they are deal-
ing with purely local Indian problems. It should
be possible for Indians with the requisite vocational
and professional training to enter the service of their
own people without the necessity of competing with
white applicants for these positions. This bill per-
mits them to do so." 78 Cong. Rec. 11720 (1934).
Congress was well aware that the proposed preference
would result in employment disadvantages within the
10 "The bill admits qualified Indians to the position [sic] in their
OWT: service.
"Thirty-four years ago, in 1000, the number of Indians holding
regular positions in the Indian Service, in proportion to the total of
positions, was greater than it is today.
"The reason primarily is found in the application of the generalized
civil service to the Indian Service, and the consequent exclusion of
Indians from their own jobs." House Hearings II (Memorandum
dated February 19, 1934, submitted by Commissioner Collier to the
Senate and House Committees on Indian Affairs).
1
73-362 & 73-361-OPINION
MORTON 1. MANCARI
9
BIA for non-Indians." Not only was this displacement
unavoidable if room were to be made for Indians, but it
was explicitly determined that gradual replacement of
non-Indians with Indians within the Bureau was a de-
sirable feature of the entire program for self-govern-
ment." Since 1034, the BIA has implemented the pref-
erence with a fair degree of success. The percentage of
Indians employed in the Bureau rose from 31% in 1934
to 57% in 1972. This reversed the former downward
trend, see n. 16. supra, and was due. clearly. to the pres-
ence of the 1934 Act. The Commissioner's extension
of the preference in 1972 to promotions within the BTA
was designed to bring more Indians into positions of re-
sponsibility and, in that regard, appears to be a logical
extension of the congressional intent. Sce Freeman V.
Morton, supra, and 1). 5, supra.
III
It is against this background that we encounter the
first issue in the present case: whether the Indian pref-
erence was repealed by the Equal Employment Oppor-
tunity Act of 1972. Title VII of the Civil Rights Act
of 1961, 78 Stat. 253, was the first major piece of federal
17 Rep. Carter, an opponent of the bill, placed in the Congressional
Record the following observation by Commissioner Collier at the
Committee Hearings:
"[W]c must not blind ourselves 10 the fact that the effect of this bill
if worked 0111 would unquestionably be to replace white employees by
Indian employees. I do not know how fast, but ultimately it ought
to go very far indeed." 78 Cong. Rec. 11737 (1934).
"It. should be possible for Indians to enter the service of their
own people without running the cauntlet of competition with whites
for these positions. Indian progress and ambition will be enormously
strengthened as soon as we adopt the principle that the Indian
Service shall gradually become, in fact as well as in name, an Indian
service predotainantly in the hands of educated and competent
Indians." 78 Cong. Rec. 11731 (1934) (remarks of Rep. Howard).
73-302 & 73-361--OPINION
10
MORTON v. MANCARI
legislation prohibiting discrimination in private employ-
ment on the basis of "race, color. religion. sex, or national
origin." 42 U. S. C: $ 20000. :! (a). Significantly,
701 (1) and 703 (i) of that Act explicitly exempted
from its coverage the preferential employment of Indians
by Indian tribes or by industries located on or near In-
dian reservations. 42 U.S. C. 12000s (b) and 2000c-
2 (i). This exemption reveals a clear congressional
recognition, within the framework of Title VII, of the
unique legal status of tribal and reservation-based activ-
itics. The Senate sponsor, Senator Humphrey, stated on
the floor by way of explanation:
"This exemption is consistent with the Federal
Government's policy of encouraging Indian em-
ployment and with the special legal position of In-
dians." 110 Cong. Rec. 12723 (1904).**
The 1964 Act did not specifically outlaw employment
discrimination by the federal government. Yet the
"Section 20035 (b) excludes "an Indian Tribe" from the Act's
definition of "employer." Section 2000a-2 (i) states:
"Nothing contained in this subchapter shall apply to any business
or enterprise on (')' near an Indian reservation with respect to any
publicly announced employment practice of such business or enter-
prise under which a preferential treatment is given to any individual
because he is an Indian living 01! or near a reservation."
"Senator Mundt supported these exemptions on the Senate floor
by claiming that they would allow Indians "to benefit from Indian
preference programs now in operation or later to be instituted."
110 Cong. Rec. 13702 (1964).
21 The 1964 Act, however, did contain a proviso, expressed in some-
what precatory language:
"That it shall be the policy of the United States to insure equal
employment opportunities for Federal employees without discrimi-
nation because of race, color, religion, SCX or national origin." 78
Stat. 251.
This statement of policy was receacted as 5 U.S. C. § 7151, SO Stat,
523 (1960), and the 1901 Act's proviso was repealed, id, at 062.
73-362 & 73-364-OPINION
MORTON v. MANCARI
11
mechanism for enforeing long outstanding Executive
Orders forbidding government discrimination had proved
ineffective for the most part. In order to remedy this,
Congress, by the 1972 Act, amended the 1964 Act and
proscribed discrimination in most areas of federal gov-
ernment. See 11. 0, supra. In general, it, may be said
that the substantive anti-discrimination law embraced
in Title V11 was carried over and applied to the Federal
Government. As stated in the House Report,
"To correct this entrenched discrimination in the
Federal service, it is necessary to insure the effec-
tive application of uniform, fair and strongly en-
forced policies. The present law and the proposed
statute do not permit industry and labor organiza-
tions to be the judges of their own conduct in the
area of employment discrimination. There is no
reason why government acenmes should not be
treated similarly." H.R. Rep. No. 92- 238, on II. R.
1746, 92d Cong., 1st Sess. 24-25 (1971).
Nowhere in the legislative history of the 1972 Act, how-
ever, is there any mention of Indian preference.
Appellees assert, and the District Court held, that
since the 1972 Act proscribed racial discrimination in
government employment, the Act necessarily, albeit sub
silentio, repealed the provision of the 1934 Act, that
22 "This disproportionatte [sic] distribution of minorities and
women throughout the Federal bureaueracy and their exclusion from
higher level policy-making and supervisory positions indicates the
government's failure to pursue its policy of equal opportunity.
"A critical defect of the Federal equal employment program has
been the failure of the complaint process. That process has im-
peded rather than advanced the goal ci the climination of discrimina-
tion in Federal employment." II. R. Rep. No. 92-23S, on II. R.
17-16, 92d. Cong., 1st Sess, 23-24 (1971).
73-302 & 301-OPINION
12
MORTON l'. MANCARI
called for the preference in the BIA of one racial group,
Indians, over non-Indians:
"When a conflict such as in this case, is present,
the most recent law or Act should apply and the
conflicting Preferences passed some 39 years earlier
should be impliedly repealed." Brief for Appellees
7.
We disagree: For several reasons we conclude that
Congress did not intend to repeal the Indian preference
and that the District Court erred in holding that it was
repealed.
First: There are the above-mentioned affirmative pro-
visions in the 1964 Act excluding coverage of tribal em-
ployment and of preferential treatment by a business or
enterprise on or near a reservation. 42 U. S. C.
§§ 2000c (b) and 2000e-2 (i). See 11. 19, supra. These
1964 exemptions as to private employment indicate Con-
gress' recognition of the longstanding federal policy of
providing 8 unique legal status to Indians in matters
concerning tribal or "on or near" reservation employ-
ment. The exemptions reveal a clear congressional sen-
timent that an Indian preference in the narrow context
of tribal CT reservation-related employment did not
constitute racial discrimination of the type otherwise
proscribed. In extending the general enti-discrimination
machinery to federal employment in 1972, Congress in
no way modified these private employment preferences
built into the 1964 Act, and they are still in effect. It
would be anomalous to conclude that Congress intended
to eliminate the longstanding statutory preferences in
BIA employment, as being racially discriminatory, at the
very same time it was reaflirming the right of tribal and
reservation-related private employers to provide Indian
preference. Appellees' assertion that Congress implicitly
repealed the preference as racially discriminatory, while
73-362 & 73-361--OPINION
MORTON v. MANCARI
13
retaining the 1964 preferences, attributes to Congress
irrationality and arbitrariness, an attribution IIC do not
share.
Second: Three months after Congress passed the 1972
amendments, it enacted (119) new Indian preference laws.
These were part of the Education Amendments of 1972,
86 Stat. 235, 20 U. S. C. (Supp. 11 1973) §§ 887c (a)
and (d). and S 1119a. The new laws explicitly require
that Indians be given preference in government programs
for training teachers of Indian children. It is improb-
able, to say the least, that the same Congress which affir-
matively approved and enacted these additional and
similar Indian preferences was, at the same time, con-
demning the BIA preference as racially discriminatory.
In the total absence of any manifestation of supportive
intent. we are loathe 10 imply this improbable result.
Third: Indian preferences, for many years, have been
treated as exceptions to Executive Orders forbidding
government employment discrimination." The 1972 ex-
tension of the Civil Rights Act to government employ-
ment is in large part merely a codification of prior anti-
discrimination Executive Orders that had proved inefice-
tive because of inadequate enforcement machinery.
There certainly Wils no indication that the substantive
23 Sec. C. (1., Ex. Order 7423, July 26, 1936, 1 Fed. Reg. SS5-SS6.
When President Eiscnhower issued an Order prohibiting discrimina-
tion on the basis of race in the civil service, Exce. Order 10577,
No. 22, 1954, 10 Fed. Reg. 7521, § -1.2, he left standing earlier Execu-
tive Orders containing exceptions for the Indian service. Id., § 301.
See also 5 CFR S 213.3112 (ii) (7) (1974), which provides it civil
service exemption for:
"All positions in the Bureau of Indian Affairs and other positions
in the Department of the Interior directly and primarily related to
the providing of services to Indians when filled by the appointment of
Indians who are one-fourth or more Indian blood."
Sce also is CFR § 213.3116 (b) (S) (1974) (Indian Health Services).
73-302 & 73-261--OPINION
11
MORTON V. MANCARI
proscription against discrimination was intended to be
any broader than that which previously existed. By
codifying the existing anti-discrimination provisions, and
by providing enforcement machinery for them, there
is no reason to presume that Congress affirmatively in-
tended to erase the preferences that previously had co-
existed with broad anti-diserimination provisions in
Executive Orders.
Fourth: Appellees encounter head-on the "cardinal
rule
that repeats by implication are not favored."
Posedas V. National City Bank, 206 U.S. 497, 503 (1963);
Wood V. United States, 10 Pet. 342-343, 303 (1812);
Universal Interpretative Shuttle Corp. i. Washington
Metropoliten Area Transit Comm'n, 303 U. S. 186, 193
(196S). They and the District Court read the congres-
sional silence as effectuating a repeal by implication,
There is nothing in the legislative history, however, that
indicates affirmatively any congressional intent to repeal
the 1934 preference. Indeed. as explained above. there
is smple evidence that U.C. legislative intent
was to the contrary,
This is iL prototypical case where an adjudication of
repeal by implication is not appropriate. The prefer-
once is a longstanding. important component of the
Government's Indian program. The anti-discrimination
provision, aimed at alleviating minority discrimination
in employment, obviously is designed to deal with an
entirely different and, indeed, opposite problem. Any
perceived conflict is thus more apparent than real.
In the absence of some affirmative showing of an in-
tention to repeal, the only permissible justification for a
repeal by implication is when the earlier and later stat-
utes are irreconcilable. Georgia 1: Pennsylvania R. Co.,
321 U. S. 439, 456-457 (1945). Clearly, this is not the
73-302 & 73-361-OPINION
MORTON U. MANCARI
15
case here. A provision aimed at furthering Indian self-
government by according an employment preference
within the BTA for qualified members of the governed
group can readily CO exist with a general rule prohibiting
employment discrimination on the basis of race. Any
other conclusion can be reached only by formalistic rea-
soning that ignores both the history and purposes of the
preference and the unique legal relationship between the
Federal Government and tribal Indians.
Furthermore, the Indian preference statute is a spe-
cific provision applying to a very specific situation. The
1972 Act. on the other hand. is of general application.
Where there is no clear intention otherwise, a specific
statute will not be controlled or nullified by a general
one. regardless of the priority of enactment. See, c. g.,
Bulora Watch Co. V. United States, 365 U S. 753, 758
(1961); Rodgers V. United States, 185 U. S. 83, 87-S9
(1002).
The courts are not at liberty to pick and choose among
congressional enactments, and when two statutes are
capable of co-existence, it is the duty of the courts, ab-
sent it clearly expressed congressional intention to the
contrary, to regard each as effective. "When there are
two acts upon the same subject. the rule is to give effect
to both if possible
The intention of the legislature
to repeal 'must be clear and manifest.' United States
V. Borden Co., 30S U. S. 188. 198 (1939). In light of
the factors indicating no repeal. we simply cannot con-
clude that Congress consciously abandoned its policy of
furthering Indian self-government when it passed the
1972 amendments.
We therefore hold that the District Court erred in
ruling that the Indian preference was repealed by the
1972 Act.
73-302 it 73-361-OPINION
16
"MORTON ". MANCARI
IV
II'c still must decide whether. as the appellees contend,
the preference constitutes invidious racial discrimina-
tion in violation of the Due Process Clause of the Fifth
Amendment. Bolling V. Sharpe, 347 U.S. 407 (1954).
The District Court. while pretermitting this issue, said,
"[\\' le could well hold that the statute must fail on con-
stitutional grounds." 359 F. Supp., at 591.
Resolution of the instant issue turns on the unique
legal status of Indian tribes under federal law and upon
the plenary power of Congress. based on a history of
treaties and the assumption of a "guardian-ward" status,
to legislate on behalf of federally-recognized Indian tribes.
The plenary power of Congress to deal with the special
problems of Indians is drawn both explicitly and im-
plicitly from the Constitution itself. Articl 1, $8, cl. 3,
provides Congress with the power to "regulate Com-
merce
with the Indian Tribes," and thus, to this
extent, single Indians out as a proper subject for separate
legislation. Article 11. § 2. cl. 2. gives the President
the power. by and with the advice and consent of the
Senate, to make treaties. This has often been the source
of the Government's power to deal with the Indian tribes,
The Court has described the origin and nature of the
special relationship:
"In the exercise of the war and treaty powers, the
United States overcame the Indians and took pos-
session of their lands. sometimes by force, leaving
them an uneducated, helpless and dependent people,
needing protection against the selfishness of others
and their own improvidence. or necessity, the
United States assumed the duty of furnishing that
protection, and with it the authority to do all that
was required to perform that obligation and to
prepare the Indians to take their place as independ-
73 362 & 73-361--OPINION
MORTON l'. MANCARI
17
ent, qualified members of the mostern body politic."
Board of County Commirs 1: Seber, 313 U. S. 705,
715 (1943),
See also United States 1; Kayama, 118 U.S. 375, 383-384
(1886).
Literally every piece of legislation dealing with Indian
tribes and reservations, and certainly all legislation deal-
ing with the BLA, single out for special treatment a con-
stituency of tribal Indians living on or near reserva-
tions. If these laws. derived from historical relation-
ships and explicitly: designed to help only Indians, were
deemed invidious racial discrimination, all entire Title
of the United States Code (25 U. S. C.) would be effec-
tively crased and the solemn commitment of the Govern-
ment toward the Indians would be jeopardized. See
Simmons V. Eagle Seclatare, 244 F. Supp. 80S, S14 n. 13
(ED Wash. 1965), aff'd. 3S4 U.S. 200 (1966).
It is in this historical and legal context that the con-
FORD
}
utional validity of the Indian preference is to be de-
termined. As discussed above. Congress in 1934 de-
LIBRARY
termined that proper fulfillment of its trust required
turning over to the Indians a greater control of their
own destinies. The overly paternalistic approach of
prior years had proved both exploitative and destructive
of Indian interests. Congress was united in the belief
that institutional changes were required. An important
part of the Indian corganization Act was the preference
provision here at issue.
Contrary to the characterization made by sppellees
this preference does not constitute "racial discrimina-
tion." Indeed, it is not even a "racial" preference.
The preference is not directed towards a "racial" group consist-
ing of "Indians"; instead, it applies only to members of "federally
recognized" tribes. This operates to exclude many individuals who
73-302 & 73-364-OPINION
19
MORTON 1'. MANCARI
Rather. it is an employment criterion reasonably de.
How
doe
this
signed to further the cause of Indian self: covernment-
and to make the BIA more responsive to the needs of
Non & Sally
its constituent groups. It is directed to participation
rights
by the governed in the governing agency. The pref-
erence is similar in kind to the constitutional require-
ment that a United States Senator. when elected. be "an
Inhabitant of that State for which he shall be chosen,"
Art. I. § 3. cl. 3. or that a member of a city council reside
within the city governed by the council. Congress has
sought only to enable the BIA to draw more heavily from
among the constituent group in staffing its projects, all of
which, either directly or indirectly. affect the lives of
tribal Indians. The preference. as applied. is granted to
Indians not as a discrete racial group. but, rather, as
members of quasi-sovereign tribal entities whose lives
and activities are governed by the BLA in a unique
fashion. See 1). 24, supra. In the sense that there is no
are racially to be classified as "Indians." In this sence. the profer-
ence is political rather then racial in nature. he eligibility criteria
appeari BIAM
".1 Policy---An Indian has preference in appointment in the Bu-
real. To be eligible for preference in appointment, promotion, and
has invalid been muled
training, an individual must be one-fourth or more degree Indian
blood and be 0 member of a Federally-reenzed tribe. It is the
policy for promotional consideration that where two or more candi-
dates who meet the established qualification requirements are avail-
able for filing a vacancy, if one of them is an Indian, he shall be
given preference in filling the vacancy. In accordance with the
policy statement approved by the Secretary, the Commissioner may
grant exceptions to this policy by approving the selection and ap-
pointment of non-Indians, when he considers it in the best interest
of the Bureau.
"This program does not restrict the right of management 10 fill
positions by methods other than through premotion. Positions may
be filled by transfers, reassignment, reinstatement, or initial
appointment." App. 02.
The main point here seems to be that the
Supreme court has rulel that preference was only the
am employment critine reasonably designed to further
based cause of their Andian decision self Gevernment. on the critinal They used in the
BIA under B 1AM 335 3.1 which in turn is baid
on Executive 49 The vare now planning to
substatute a statute defining Indian that the
Supreme court was aware of It is extremely
subtful the Supreme Court has for so
notified
73-302 & 73-361-OPINION
MORTON 1. MANCARI
19
other group of people favored in this manner. the legal
status of the BIA is truly 8111 generis." Furthermore,
the preference applies only to employment in the Indian
service. The preference does not cover any other gov-
ernment agency or activity. and we need not consider the
obviously more difficult question that would be presented
by a blanket exemption for Indians from all civil service
examinations. Here, the preference is reasonably and
directly related to a legitimate. nonracially based goal.
This is the principal characteristic that generally is ab-
sent from proscribed forms of racial discrimination.
On numerous occasions this Court specifically has up-
held legislation that singles out Indians for particular
and special treatment. See, C. S., Board of County
Comm'rs T. Seber, 318 U. S. 705 (1943) (federally
granted tax immunity); McClanahan V. Arizona State
Tax Commin, 411 U.S. 164 (1973) (same); Simmons V.
Eagle Seclatsee, 3S4 1. S. 200 (1966), affirming. 241 F.
Supp SOS (ED Wash. 1983) istavatory definition of
tribal membership, with resulting interest in trust
estate); Williams V. Lee, 358 U. S. 217 (1959) (tribal
courts and their jurisdiction over reservation affairs).
Cf. Morton V. Ruiz, --- U.S. --- (1974) (federal wel-
fare benefits for Indians "on or near" reservations).
This unique legal status is of long standing. See Cherokee
Nation V. Georgia, i) Pet. 1 (183)); Worcester I: Georgia,
6 Pet. 515 (1832). and its sources are diverse. See, gen-
erally, U. S. Dept. of Interior. Federal Indian Law
(1958); Comment, The Indian Battle for Self-Deter-
mination, 5S Cal. 1. Rev. 145 (1970). As long as the
special treatment can be tied rationally to the fulfillment
25 Senator Wheeler described the BIA as "an entirely different
service from anything clse in the United States." Hearings before
the Senate Committee on Indian Affairs on S. 2755 and S. 3615
(Part 2), 73d Cong., 2d Sess., 256 (1934).
4
73-302 & 73-361-OPINION
20
MORTON v. MANCARI
of Congress' unique obligation toward the Indians, such
legislative judgments will not be disturbed. Here, where
the preference is reasonable and rationally designed to
further Indian self-government, we cannot say that Con-
gress' classification violates due process.
The judgment of the District Court is reversed and the
Dist
case is remanded for further proceedings consistent with
Dictors
But
this opinion.
It is so ordered amything. do ?
FORD
LIBRARY
MONDAY, MARCH 29, 1976.
OVERVIEW HEARING-BUREAU OF INDIAN AFFAIRS
SCHOOL CONSTRUCTION AND MAINTENANCE
WITNESSES
JOSD A. ZUNI, ACTING COMMISSIONER OF INDIAN AFFAIRS
WiLLIAM C. SEARCY, ACTING ASSISTANT DIRECTOR, FINANCE.U.
MANAGEMENT
FRANK WILES, DIRECTOR OF BUDGET, DEPARTMENT OF THH
INTERIOR
SIDNEY L. MILLS, ASSISTANT DIRECTOR, MANAGEMENT SERVICES
PATRICIA DONNELLY, PROGRAM BUDGET COORDINATOR, MANAGE-
MENT SERVICES
EDWARD G. MARICH, PROGRAM BUDGET COORDINATOR. INDIAN
EDUCATION PROGRAMS
DAVE WAEREN, ACTING DIRECTOR, INDIAN EDUCATION PRO-
GRAMS
INDIAN SCHOOL CONSTRUCTION AND MAINTENANCE
Mr. YATES. The committee will be in order. This is & special over-
sight hearing on the matter of Indian school construction and
maintenance.
We have before us Mr. Jose Zuni, the Acting Commissioner of In-
dian Affairs.
Mr. Zuni, I was visited recently by Dr. Wauneka and a consultant
on Navajo school problems. They showed me pictures that I am sure
you have seen, indicating the condition of Navajo schools. I suppose
you are familiar with these problems.
Mr. ZUNI. Yes. we are familiar with the problems.
Mr. YATES. Why should this happen In looking through this Look
there are pictures of schools, some that were built less than 10 years ago
that are falling apart.
The committee, in all good faith, gives BIA money to construct
schcols, expecting that the schools will be of excellent construction and
that they be properly maintained. Apparently that has not taken nince.
Mr. ZUNI. No. Mr. Chairman.
Mr. VATES. Tell us why it has not taken place.
Mr. ZUNI. To begin with, we do not get enough money to do an ade-
quate job of preventive maintenance. As it result. our buildings dete-
riorate, which causes another problem in terms of a renabilita-
tion program. And, of course, if this is negiected. this in turn requires
new construction. So this is a cause and effect problem that we have in
the Bureau.
Mr. YATES. Are you given enough money to build schools!
(707)
708
Mr. ZUNI. We are faced with this dilemma, Mr. Chairman. As was
brought out in a revious hearing, we do not believe we get enough
money to do a proper and adequate job of constructing set nol Ta-
cilities, nor do we get enough money to do an adequate job of pl operly
maintaining these facilities.
Mr. YATES. When I asked Mr. Thompson whether the amount he
requested from us was adequate for administering the BIA programs,
he told us they were. I had attempted to make clear to Mr. Thompson
that our committee considered itself to be as important as OMB and the
Department of the Interior in being advised of the amount of money
necessary to carry on BIA's programs adequately. As you know from
this committee's action, the best example of which occurred last year,
we are willing to provide extra money for schools and hospitals.
You are requesting in fiscal year 1977 $62,788,000 for facilities
management.
If we were to appropriate the full $62,788,000, would that be ade-
quate?
Mr. ZUNI. No.
Mr. YATES. How much would be adequate?
Mr. ZUNI. We almost have to double that to start working on the
backlog.
Mr. YATES. Is that because of the condition of the schools?
Mr. ZUNI. Yes.
Mr. YATES. Are you building any new schools?
Mr. ZUNI. Yes; we are.
QUALITY OF INDIAN SCHOOL CONSTRUCTION
Mr. YATES. Are you going to have enough money to build schools
that will last for years? Is there any reason why a school built on the
Navajo reservation should not have the same life as a school built in,
say, the city of Albuquerque?
Mr. ZUNI. No reason.
Mr. YATES. Is it just a question of adequate funding for the purpose?
Mr. ZUNI. That is right.
Mr. YATES. And adequate supervision of the contract.
Mr. ZUNI. Yes, sir.
Mr. YATES. Are the problems with schools limited to the Navajos,
or are they true with respect to all Indian communities?
Mr. ZUNI. I think the Navajo problem is a microcosm of what ails
the Bureau in terms of the construction program and the maintenance
program.
Mr. YATES. Tell us what we ought to be doing. in your view, and tell
us as though there were no OMB and no Secretary. because we want
to know Ure truth.
BACKLOG IN CONSTRUCTION
Mr. Zum If this were the case, I think our construction hudget
would vc to hc increased consider ably.
We estimate that our backlog in construction is over $500 million.
We estimate that our backlog in major, or what we call facility im-
provement, is over $100 million. We consider our repair and mainte-,
nance program to have a backiog of around $70 million.
709
Mr. YATES. Is that for construction of new schools or just mainte-
nance?
Mr. ZUNI. I mentioned three programs, Mr. Chairman. I m entioned
the construction program, the facility improvement program and the
regular repair and maintenance program.
LETTER FROM THE NAVAJO NATION
Mr. YATES. I received a letter from the Navajo Nation, signed by
Mr. Wilson Skeet, Vice Chairman of the Navajo Tribal Council, dated
March 23, 1976. It reads:
Last week Dr. Annie D. Wauneka, representing the Navajo Area School Board
Association; Mr. Manuel Shirley and Mr. Harvey McKerry, representing the
education committee of the Navajo Tribal Council. visited your office to submit
documentation of the dangerous, illegal, and unsafe conditions at many Navajo
boarding schools.
Some of these conditions must be corrected during the coming summer if our
children are to attend these schools next fall. Your support of our request for a
supplemental appropriation is urgently needed.
As an attachment to that letter they gave me a list of the sewage
treatment lagoons that have to be added at a cost of $2,390,000. Have
they given you copies of this as well?
Mr. ZUNI. We have just received one, Mr. Chairman.
LETTER TO COMMISSIONER OF INDIAN AFFAIRS
Mr. YATES. I also have a copy of a letter to the Commissioner of
Indian Affairs, dated February 9, 1976; from Mr. Julian Franklin,
saying this:
During the past several years, several laws with far-reaching effects have beer.
passed that are creating financial and legal burdens upon my position and ir
turn your position. I have done much pondering of this problem and though m;
staff and I have worked diligently on it, I feel I must bring it to your attention
for advice on a possible solution. It is a problem that can only be solved essen-
tially with resources. as I feel you will agree.
The first law with an economic impact is the Federal Pollution Control Act
Public Law 92-500. Though all of our facilities were up to Federal standards
when originally built, the new law requires us to upgrade 34 of our sewerage
treatment lagoons at a cost of $2,390,000.
I don't remember that being brought to our attention. Was that
brought to vour attention?
Mr. ZUNI. Not in the last hearings, no.
Mr. YATES.
The second law to affect us is Public Law 91-512, Solid Waste Disposal Act. 'I'
with the law we are planning four large land dispose' sites with dail
coverage wasse. The equipment and construction costs will total $2,500,000
The third law to affect us is the Occupational Sarety and Health Act commonis
called OSHA. This ant covers a tremendous array of hazards corrections such
rewaring buildings. ventilation improvements. workers safety tools, materials
and equip ient in our ***** and also in our educational facilities Due
requirements of the law. a
not been made.
Aiso due to rapidiy changing requirements. it probably never will be completely
done. From our sample surveys, it is conservatively estimated that 03 millior.
will be needed to correct the most flagrant violations this law.
I am going to place this menoi andum in the record at this point:
rather than reading the whole thing. But the summary that he has at
tached here indicates the necessary amounts come to $25,321,000. There
710
are not only the first three acts I mentioned, but also the Indian health
service requirements, $4,875,000, the Safe Drinking Water Act, $1,235,-
000; the Bureau of Indian Affairs fire protection requirements, $8,514,-
000; and insulation of facilities, $2,757,000.
What does Mr. Franklin mean by Bureau of Indian Affairs fire pro-
tection requirements? Is that for the schools?
Mr. ZUNI. Yes. He is talking about our responsibility for fire pro-
tection of Government facilities.
Mr. YATES. You are not meeting them?
Mr. ZUNI. Not adequately, no.
[The letter follows:]
711
Area Plant
100 410.1
Navajo Aree Office
P. O. Box 1060
FILE COPY
Gallup, New Mexico 87301
SURNAME
muller
IT'S 9 196 Rechelian
Memorandus
To:
Commissioner of Indian Affaire
ACTING
From:
Area Director
Subject: Facilities Management, Compliance with Lews and Regulations
During the past several years, several lews with far-reaching effects
have been passed that are croating financial and legal burdens upon
by position and in turn your position. I have done much pondering
or this problem and though my staff and I have worked diligently on
it, I fcol I must bring it to your attention for advice on a possible
solution. It is a problem that can only be solved essentially with
Isla
resources, as I feel you will agree.
The first lev with an economic imact. is the Federal Follution Control
Act, Public Law 92-500. Though all or our facilities wore up to
Foleral standards when originally built, the new law requires 110 to
upgrado 34 of our soverage treatment lagoons at a cost of $2,390,000.
(See Attachment No. 1.)
The ascoud lay to affect us in Public Law 91-512, Solid Wasto Disposal
Act. To comply with the law NO are planning four large land disposal
oitos with daily coverage of waste. The equipment and construction
costs will total $2,550,000. (See Attachment No. 2.)
The third law to effect us is the Occupational Sciety and Hoalth Act
commonly called OSHA. This act covers a tremendous array of hazards
corrections such as roviring buildings, ventilation improvements,
vorkers safety tools, natorials and equipment in OUT work areas and
also in our educational facilition. Due to the extensive requirements
of the law, a complete inventory has not been made. Also due to
rapidly changing requirements, it probably never will be completely
done. From our sample surveys, it is conservatively estimated that
$3,000,000 will be needed to correct wis most riagrant violations of
this lav.
712
We have also enalyzed where further savings can be made. One area
that is very promising is the installation of insulation. We would
receive a 20 per cent cost reduction figured at today's fuel prices.
Naturelly if fuel costs increase, particularly natural gas as we
presently expect, the payoff will correstondingly accelorate. Cost
of 20 projects - $2,757,000. Annual energy cost reductions - $551,400.
(See Attachment No. 5.)
One problem we encounter is that we are in terrible financial shape
in our Facility Management area. We have received the lowest funding
per square foot in the Bureau of Indian Affairs and have for many
years. (See Attachment No. 6.)
We are unable to make the kind of investment of operating resources
to take advantago of future payoffs due to their multi-year character.
Upon looking at all of the above projects, you will notice a common
thread running through them. They are all projects that fall under
the category of Major Alterations and Improvements. In fact, I am
at a complete less to conceive of any other legal method of
accomplishing these projects.
This brings no to the problem of serious and unfair under funding of
the Navajo Facility Management functions. The attached chart shows
the Maintenance and Operations and Major Alterations and Improvements
of Facility Improvements funding lovels of all areas for the past six
years. You will note the Navajo Area has been the lowest for several
years. An overall review of the tables will also show a lack of a
meaningful funding pattern.
Since climate and weather have very strong affects upon Operations and
Maintenance costs, it would be reasonable to assume that the Navajo
Area allocations should be similar to surrounding adjacent and inter-
mingled areas, namely Phoenix and Albuquerque. The facts are somewhat
different. If you will note Attachment No. 6, Table I, the average
funding per square foot per year for Fiscal Years 1971 and 1976 has
been:
Albuquerque
$1.99 per square foot
Phoenix
$1.48 per square foot
Navajo
$1.08 per square foot
The Navajo Deficit Chart, Attachment No. 13, shows the long-range
pattern of under funding WA have experienced. This has caused a
detericration of. our plant with accolorating deleterious affects.
Along with the unabated erosion of our facilities, abvious safety
hazards are popping un faster than == can handle them. Inflation,
particularly of fuel costs, is superimposing their 111 effects upon
our funding.
FORD
LIBRARY
713
Under the Indian Health Service Smatling Act, we are constantly under
the inspection of their personal for combinence ith the Public Health
standards. During the last several years, the standards that they are
holding us to, have become more stringent. Hardly a week goes by without
a detailed inspection being dropped on 18 that asks us to increase the
size of a ventilator, provide a special restroom, calarge the food
storage area, renovate the kitchens and make a host of changes that are
beyond the capabilities of resources or the Havajo Area Ropair and
Maintenance organization.
Since this is a continuing and scomingly accolerating process, we must
admit ve do not have e total dinension of the problem. Our Engineers
estimate that each installation would require an average 01 375,000
to modify our kitchons, dining rocms and domitory areas to conform
to the current health inspection requirements. This my prove weefully
inadequate if the Indian Health Service continues to accelerate their
standards. Cost - $75,000 M 65 installations = $4,375,000.
Under the Safe Drinking Water Act, Public LAW 93-523, it will bo
necessary to complete 60 projects costing $1,235,000. Most of these
projects are for chlorination but (1' few-are for fluoridation and even
defluoridation. (See Attachment No. 3.)
All of the above projects are legal requirements and I interpret these
laws to say that I an to oboy these laws and if I do not obey them,
I and/or the United States Covernment is liable under the Tort Act to
boing suod for negligence.
An area of concern to no and covered under Bureau of Indian Affairs
regulations is the requirement to provide fire protection. Vo have
identified 55 projects that do not meet our design criteria and the
recommondations of the Nation: Doard of Fire Underwriters. Total
cost of the 55 projects is $3,514,000. (See Attachment No. 4.)
In case of serious injury or death in a fire situation, I boliove the
Government would be in cerious difficulty protecting itself against a
liability suit. In addition, it appears a prudont course to provide
adoquate fire protection to protect the over $500,000,000 plant on
the Navajo Reservation.
In addition to the above legal requirements and the Durosu of Indian
Affairs regulation requirements, your office has stremously pushed
our Energy Conservation Program. No have done what we can in this
area and are strengthening car efforts amin. There is, of CENTER,
only no much that can be accomplished locally.
714
Mich of our Ropair and Maintenance monics have been diverted to cover
car fuel costs. The percentage of our total facilities management
dollar spont on fuel has risen from 17 per cont in Tiscal Year 1971
to 32 per cont by Fiscal Year 1976. (See Attachment lio. 14.)
To return to the first part of our memorandum, ve have arrived at a
point where the responsibilities of the Government have risen from
several recent laws. This is also coupled with an increasing aware-
DOC3 of the Indian population that the Government may be such and
many times nado to pay large suns or money for negligence. No have
coveral Greas as tabulated below that require substantial resources
to solve.
Federal Pollution Control Act, F. L. 92-500
$ 2,390,000
Solid Waste Disposal Act, P. L. 91-512
2,550,000
Occupational Safety and Health Act
3,000,000
Initan Health Services Requirements
4,875,000
Safe Drinking Water Act, P. L. 93-523
1,235,000
Buroen of Indian Affairs Fire Protection
Requirements
3,514,000
Insulation of Facilities
2,757,000
Total
$25,321,000
In addition to these areas that can be rightly addressed only by the
Facilities Improvements Program, llavajo Area will have by July 1976,
e completed up-to-date Facilities Improvements backlog that will amount
to approximately $100,000,000. These itoms will cover a transmicus
rango of projects, such as drainage systems that were left out of the
original construction projects, roof nodifications to correct sorious
design deficiencies, shelter belts, sidevalks, parking areas, play
areas, building modifications for changing educational programs, to
name a for. We have alroady accumulated a partial list of more than
$53,000,000.
What concerns me is a feeling I got that the Central Office does not
understand or approciate the Facilities Improvements Program, its
interrolation to the noeds of the field installations, the results of
certain recent laws and the requirements of some of our long overling
regustions. The final crushor CO has boom a recent announcement
from the Contral Office that our Fiscal Year 1977 tentative allocation
has been reduced from $1,400,000 to $112,500.
715
I cannot agree that this program should be cut. It should be increased
and I also believe that the Havajo Area needs 3 largor share the they
have been getting for the Inst decade. If you do not believe what 1
an saying, please code out and look at our facilities. If we are wrong,
let us know where. Ve need help either in resources or in guidance
to overcome a seriously developing problem. Most of all, we need to
comminicate.
Julian R. Franklin
Enclomires
CC: Area Director's Reading File
500 Chrono
File
005
M& F
Reading
MFRocholeau: jnc:1/30/76
Retyped 2/3/75
716
OBSERVATION OF AREA PLANT MANAGEMENT OFFICER
Mr. YATES. I also have a letter written to Dr. Wauneka from Mr.
Rocheleau. the area plant management officer of the Navajo area office,
dated March 23. 1976.
: bave received and studied the Navajo Area School Board Association reso-
lution of March 1, 1976, regarding your deep concern over the terrible condition
of the schools in the Navajo Area. I agree with your findings. The buildings are
run down, the roofs leak, electrical hazards develop faster than TTA can cope
with them and in many cases, we just cannot handle the workload that has
been imposed upon us.
The reasons for this have been varied but mostly full upon past policies and
practices. Until we made a study last summer and fall, no study had been made
concerning the scope of the problem and the funding necessary to accomplish
proper maintenance. The last 0 years funding on a square-foot basis for the
Navajo Area was only 73 percent of the funding of the Phoenix Area and 54
percent ot the Albuquerque Area funding.
The 6-year average for funding does not tell the whole story since the longer
things went on, the worse they kept getting
Mr. Rocheleau included a list of the backlog of maintenance and
repair items that have to be done, totaling $26 million, and a list of
major alterations and improvements totaling $76 million:
[The letter follows:]
717
United States Department of the Unierior
BUREAU OF INDIAN AFFAIRS
Eevujo Area Office
P. C. box 1060
Gallup, New Mexico 87302
IN REPLY REFER TO.
Ares Plant
Maragement
NOO 415.0
EAR 23 E:70
Tx. Annie D. Wauneka
Delegate
Favajo Tribal Council
Window Rock, Arizona 86515
Dear Dr. Wauneka:
I have received and studied the Navajo Area School Board Association
resolution of March 1, 1976, regarding your deep concern over the terrible
condition of-the schools in the Navajc Area. I agree with your findings.
The buildings are run down, the roofs leak, electrical hazards develop
faster than we can cope with them and in many cases, we just cannot
handle the work load that has been imposed upon us.
The reasons for this have been varied tut mostly fall upon past licies
and practices. Until we made a study last summer and fall, GC study
had been made concerning the scope of the problem and the funding neces-
sary to accomplish proper maintenance. The last six years funding on
a square foot basis for the Navajo Area was only 735 of the funding
of the Phoenix Area and 54% of the Alouquerque Area funding.
The six-year average for funding does not tell the whole story since
the longer things went on, the worse they kept getting. In Fiscal Year
1976, again on a square foot basic, Navajo Aree got only 69% or the
Phoenix Area funding and 46% of the Albuquerque Area funding.
During the last four fiscal years, our fuel costs have increased from
$2,000,000 to $5,000,000. Less than half of this increase was runded
and the rest was taken out of repair and maintenance. Our program in-
creases during the last several years have not kept up with the cost
of living. Pay raises have not been covered and we have drifted into
a very tight, almost ludicrous, financial situation.
An effort to try to maintain the building, supplying our workers with
tools and materials and providing them with the necessary equipment
has put us over our present budget. If no relief is in sight, we will
have to reduce our maintenance even more between now and July :,, LOTS
We are emptying our tanks to make $250,000 available. This begins to
tell you our problems, as last year we Marted out the year with our
full.
AMERICAN INTERNATIONAL
1776-1978
718
It wa.as not get any financial help this year or in Fiscal Year 1977,
Vr will not be able to as the job no maute. how name our men try.
To give you some-ides of how bard they are trying YO have increased
our Weekly shop order production from 630 1:- the fall. of 1974 to a
present weekly average of 1,230 with 235 tially the same number of
Workers. This increased productivity will not in itself stem the tide
FOR restore the deleterious effects of the tens of millions of dollars
of under funding that the Navajo Area her suffered durding the last
several years. If we are to repair, and in many cases restore, the
schools, We need Loney end the scener the better.
Lydr present propossis, ve will be ground down to E. totally unsatis-
factory level of accomplishment if nc change in funding patterns occurs.
Cur Major Alterations and Improvements and Repair and Maintenance Backlogs
are ad follows:
REPAIR AND MAINTENANCE:
ITEM
QUANTITY
TOTAL COST
Resently leaking roofs
1,470,000 square feet
$ 2,189,000
Foundation stabilitation
projects
15 schools
3,782,000
Street repair projects
35 schools
2,974,000
Painting projects
55 schools
5,305,000
Viniow replacements
35 schools
1,192,000
Gas line replacement
245,000 lineal fest
2,625,000
Replace noncode I? gas
take
50 each
70,000
Waterline replacement
325,000 lincal feet
3,750,000
Sidewalk repair and
replacement
27,000 square yards
265,000
School fencing repair and
replacement
327,395 feet
543,910
Ceiling repairs
405,000 square feet
1,121,000
Floor repairs
635,000 square feet
1,112,000
Door repair and replace-
ment
16 each
263,000
719
reating plants replace 12 20 each
515,000
Pactrical 16psix and
e.placement
15 instellations
431,000
Kitchen equipment replace-
rents
42 kitchens
623,000
torth REPAIR AND MATHERNANCE BACKLOG
$26,769,910
VAJOR AMERATIONS AND IMPROVEMENTS:
ITEM
TOTAL COST
Federal Pollution Control Act
$ 2,390,000
Solid Vaste
2,550,000
OETA
3,000,000
Indian Health Services Requirements
4,875,000
Safe Drinking Water Act
1,235,000
BIA Fire Protection Requirements
8,514,000
Insulation of Facilities
2,757,000
Improve and/or Provide Utility Systems
5,770,000
Pave Streets, Provide Curbs and Gutters
6,700,000
Construct Sidewalks end Walkways
905,000
Construct Fences
2,845,000
Erosion Control, Drainage and Landscaping
9,145,000
Athletic Facilities (Outdoor)
3,500,000
Rehab Institutional Buildings
5,935,000
Additions to Existing Buildings
4,205,000
Improve Ventilation Systems
1,940,000
Improve Electrical Systems
2,000,000
Change Roof Systems
5,700,000
720
Favolation Protection
2,271,000
Mre Alara System Additions
1,200,000
Solar Heating Projects
120,000
TOTAL MAJOR ALTERATIONS AND IMPROVEMENTS BACKLOG
$76,091,000
To get the Navajo AFEE Facilities and Schools back into commonly a
able shape, we should have funding as the following levels:
FISCAL YEAR
PTESENT FUNDING
INCREASE
TROPOSED FUNDING
19/5
$ 15,481,900
$ 2,000,000
$17,481,900
INTERIM QUARTER
3,867,000
4,000,000
7,867,000
1977
15,478,600
15,000,000
30,478,600
1978
16,200,000
15,000,000
31,200,000+
If this type of funding was granted us, we would still be getting less
per square foot than the Albuquerque hrea. It is also important to
let you know it would be at least five years before our schools would
be in the shape the rest of the country enjoys.
Sincerely yours,
Marrie
Area Plant Management Officer
721
PROGRAM TO CORRECT SITUATION
Mr. Years. Speaking as one member of the committee, I WOI Id like
to take steps to begin a program that will correct the situation. Does
BIA have any program for correcting the situation?
Mr. ZUNI. Yes, we do.
I don't think that we have adequate resources to properly address
the total scope of the problem area.
CONSTRUCTION PROCEDURES
Mr. YATES. How do you go about constructing a-school? What is the
procedure?
Do you require bids?
Mr. ZUNI. Yes.
Mr. YATES. Do you know when you let the bid that the amount will
be inadequate to build a good school?
Mr. ZUNI. Well. we, as you know, ask for money for planning and
design purposes. After we do that, we advertise for the design work.
After that. we ask your committee and the Senate committee for con-
struction funds. Then we advertise for bids based upon the designs
that have been prepared and dispatched by the A. & E. firm.
Mr. YATES. Are your designs as good as those of the public schools?
Mr. ZUNI. I would have to say yes. I think they are equivalent to the
design of the public school system.
Mr. YATES. Why do Indian schools fall apart, and public schools
don't, if your designs are as good as theirs?
Mr. ZUNI. Well, even if the design, the construction, is equivalent to
the public school system, one does not have adequate preventive main-
tenance, then deterioration would start sooner, faster, and after a pe-
riod of time, you have a poor building on your hands.
Mr. YATES. We could criticize BIA very strongly for not having ad-
vised the committee of this. I had a feeling when you asked for 869
million for facilities management, that you were not telling us the
whole story.
For instance, in the justifications under "Facilities management" you
have a request for $62 million, including $30,738,000 for repair and
maintenance of buildings and utilities.
You say in the justification $30,738,000 requested for this portion of the pro-
gram will provide a minimum level of repair and maintenance of Bureau plant
facilities located throughout the United States including Alaska.
A minimum level of repair is not adequate. is it? You should have
said, dequate level of repair," rather than "minimum". should
you not
Mr. ZUNI. Yes.
AVERAGE Ave OF SCHOOL FACILITIES
Mr. YATES. I am glad we are getting the truth now. The Bureau
operates and maintains approximately 8,736 individual buildings
containing 28,700,000 square feet, of foor area, together with related
utility systems to support facilities at 400 separate locations. Seventy-
seven boarding schools. 19 dormitories, and 117 day schools are among
the facilities maintained and operated over an area stretching from
722
Alaska to Florida. The average age of these facilities is in excess of
40 years.
Mr. McKAY. The interesting thing to note in the pictures presented
is that the building built in 1919 is in as good or better shape than the
one built in 1966. That seems to be an incredible degredation of con
struction capabilities. And the 1919 construction is an adobe which
wouldn't deteriorate if you had any roof at all. And the roof struct-
ures that I see here apparently were woefully inadequate to maintain
the roof. Anytime a roof goes everything else is going to go. It is just
a matter of when. I saw this with the military out in Wright-Patterson
when they let the roof go-put a little paint on the inside. SO the of-
fices looked nice, but let the roof go. Then they have buckets under
there.
Well, the priorities are backwards.
I am concerned that we are not getting a standard of construction.
even though we build the building. You say you put out the bids and
get the design but if the foundation is not constructed adequately, if
the materials are not correct it is going to fall apart after dedication.
You are dead. You are rebuilding it constantly.
I am wondering if we are really getting a standard of excellence
when we build them to begin with.
Mr. ZUNI. Well, I believe the pictures that are shown in the report
all represent flat roofs, in a very dry area of the country. And one
would think that perhaps pitch roofs would be a better approach to
construction.
FLAT ROOFS VERSUS PITCH ROOFS
Mr. YATES. The design wasn't proper in the first instance, was it?
Mr. ZUNI. Not being an engineer, I cannot determine the merits of
the type of roof.
Mr. YATES. This is the criticism that I have heard-that the roofs
were flat, and therefore subject to deterioration more quickly than
pitch roofs.
Mr. McKar. Except that you do the same thing here. I just re-
turned from Cameron Station. the military installation-they have
flat roofs there. They have some problems. But in there pictures, you
have a completed building. I think it was the heating unit built in
1927. The roof was off of there-the corrugation was just plain off.
It is not nailed down or anything. So whether the roofs are flat or not,
that kind of situation does not seem to make sense.
Mr. YATES. I don't know why you should take the heat for Mr.
Thompson and Mr. Frankel. do you?
Mr. ZUNI. Well, somebody has to keep the house, Mr. Chairman.
Mr. I ATES. Are you next in line?
Mr. ZUNI. Yes.
GAO REPORT ON REPAIRS TO BUILDINCE
Mr. YATES. I have a report from the Comptroller General of the
United States. dated September 25. 1968. At that time GAO said their
review showed that large sums had been programed and expended to
repair, improve and rehabilitate old buildings. Some of these old
buildings were demolished shortly after they had been extensively re-
paired or rehabilitated.
723
Is this what you are going to do with some of these buildings. Are
you going to patch up here. put a band-aid there, and then hope it goes
on for another couple of years. It won't work. will it?
Mr. ZUNL No. It would be more desirable, of course, to replace the
buildings on a planned schedule.
SCHOOL REPLACEMENT
Mr. YATES. We provided you with funds to replace schools that had
burned down. Isn't that correct?
Mr. ZUNI. Right.
Mr. YATES. Have those schools been rebuilt yet
Mr. ZUNI. No. We are in the process of construction.
Mr. YATES. Are we going to have the same story with respect to the
schools that burned down? Are they going to be inadequate schools
Mr. ZUNI. If we don't properly maintain them, yes.
Mr. YATES. Will they be inadequate when you build them Are they
going to have the flat roofs?
Mr. ZUNI. I am not familiar with the design plans, sir.
Mr. YATES. Please check into that. I would like a report on what is
happening with respect to those three schools.
If it is wrong to build schools with flat roofs, it does not make senso
to continue to build them. Who knows the answer to that ! Would an
engineer know the answer to that ?
Mr. ZUNI. Engineers should have the answer.
Mr. YATES. Is anybody in the Bureau an engineer?
Mr. ZUNI. Yes; we employ engineers.
Mr. YATES. Have they told you whether that is the wrong design
Mr. ZUNI. The merits of a fiat roof and a pitch rooi have never been
discussed.
Mr. YATES. Does it snow in that area?
Mr. ZUNI. Yes.
Mr. YATES. It snows and rains, and therefore there has to be some
way of getting the water and snow off the roof. So presumably a pitch
roof would serve that purpose better than a flat roof.
Would you provide us with a report on the schools you are rebuild-
ing, and the planning and design for the new schools you requested
money for?
Mr. ZUNI. Yes.
Mr. YATES. I would also like to know whether the amount that has
been allocated for the construction of those schools is adequate.
[The information follows:]
ROOF DESIGN
The three schools that burned down are going to be constructed in tiscal year
1977. Chevak. Alakanuk and Mekoryuk all have pitched roof design. Also in-
dried is the Jemez, which has a minimum one quarter inch per foot roof slope
design (flat).
ALLOCATED CONSTRUCTION FUND IS UATE
The fiscal year 1977 budget estimates are only estimates based on available in-
formation at the time they are prepared. There are changes in concepts. un-
predictable increases in material and labor costs. and other unforeseen factors.
It should be realized that normally there is a wide range of construction bids
and our estimates are within an acceptable range at this stage.
[NOTE--The Department failed to supply all the requested infor-
mation in time to be printed in the hearing record.]
INSPECTING CONTRACTORS' WORK
Mr. YATES. What procedures do you have for making sure the con-
tructor does a decent job?
Mr. EUNT. We have inspectors that inspect the construction jobs.
Mr. YATES. A'inspectors?
Mr. ZUNI. Right.
Mi. YATES. Where do you have new schools that have just recently
been finished
Mr. ZUNI. We have one in Arizona; Santa Rosa.
Mr. YATES. Is that anywhere near Phoenix?
Mr. ZUNI. That is near Tucson.
We just completed one down in Riverside, Calif., and Cherokee.
Mr. YATES. Where is that ?
Mr. MARICH. North Carolina.
Mr. YATES. Do you have the same trouble in those communities,
Riverside and Cherokee, that you have with the Navajos?
Mr. ZUNI. No, not the new structures.
Mr. YATES. GAO noted in its review that major alteration and im-
provement funds and repair and maintenance funds were used in-
terchangeably to finance the same type of projects, and that in some
instances the costs of supportive services were not charged to the
proper fund.
The GAO report also states:
GAO believes the Bureau could realize more efficient and effective use of funds
appropriated for repair and alteration of buildings if it would establish a strong
central control organization to provide field management with meaningful cri-
teria and guidelines.
Do you have a strong central control organization!
Mr. ZUNI. Yes, we have a centralized engineering organization in
Albuquerque.
Mr. McKar. Will the gentleman yield?
Mr. YATES. Sure:
NAVAJO SCHOOL BOARD
Mr. McKAY. You have a school board. a Navajo school board, that is
elected from the Navajo Tribe itself. is that correct?
Mr. ZUNI. Yes, there are several school boards?
Mr. McKAY. On the Navajo Reservation?
Mr. ZUNI. Yes.
Mr. McKar. What anthoric or responsibility do they have for main-
tenance over your acsponsibilities. What to you provide and what do
they as a school board provide. In most sehool districts the school board
is responsible for maintenance. upkeep. general curriculum. et cetera.
Where do you interact with the school boards in responsibility to theme
buildings?
Mr. ZUNI. I think this is probably the first instance where we are
interreacting. in that this hearing is à result of the interests of the
NASBA or the Navajo area school boards.
Mr. McKar. I know. But under your authority in BIA. you have
certain responsibilities of trust and other things with the tribes. At
725
what point do you take over the responsibility of maintaining the
buildings and at what point does the Navajo school board take over
responsibility, or is it kind of run between where neither takes hold?
Mr. ZUNI. Well, we have a continuing responsibility to operate and
maintain the facilities, unless the tribe or the school board contracts
for the operation of the school.
Mr. McKay. How many of these facilities have been contracted by
the tribe to be taken care of
Mr. ZUNI. Ed, do we have any?
Mr. MARICH. Of the ones that are in the report?
Mr. McKAY. Yes. Those are the ones we are talking about at present.
Mr. MARICH. I do not know the specifics about the schools in the
report.
NAVAJO SCHOOLS UNDER CONTRACTS
Mr. McKAY. Well, how many schools are your responsibility and
how inany are not?
Mr. MARICH. We have. I believe. three schools on the Navaio under
contract operations-Rock Point, Rough Rock, and Borrego Pass.
Mr. McKAY. Under that contract what are your responsibilities for
those schools? Do you have any, or is it just turned over with their
appropriate share of the money.
Mr. MARICH. The funds are contracted to the particular board.
Mr. McKAY. At that point do you leave it up to them?
Mr. ZUNI. Yes.
Mr. McKar. Under self-determination, you get your fingers out of
it. is that right?
Mr. ZUNI. Well. not completely, because we negotiate the contract
annually. We are responsible for getting the money.
Mr. McKAY. To them.
Mr. ZUNI. Yes. to them.
Mr. McKar. Then you tell them how to use the money, and all they
do is administer it, is that right?
Mr. ZUNI. Well, they have some leaway.
Mr. McKAY What kind of leeway?
DEVELOP MAINTENANCE PROGRAMS
Mr. ZUNI. To determine and develop a proper maintenance program
for the facility.
Mr. McKar. Do they have to bring it back to you for approval?
Mr. ZUNI. Not in all instances.
Mr. McKAY. In what instances don't they?
Mr. ZUNI. They develop an annual program. And unless they deviate
from this program. then they are free to administer the program.
Mr. MoKar. As they choose?
Mr. ZUNI. Right.
Mr. McKAY. But that n'an has received your prior approval under
the contract, is that right
Mr. ZUNI. Yes.
Mr. McKAY. Well, then. if I get it correctly-and I didn't see the
names you mentioned in the report here-then all of these schools are
under your absolute jurisdiction for maintenance and construction.
Mr. ZUNI. Yes.
726
INTENANCE COSTS PER SQUARE FOOT
Mr. McKAr. You indicated here you have $1.99 per square foot for
naual square-foot costs. I assume that is maintenance, isn't it? Average
fanding per square foot per year for fiscal 1971 through 1976 is $1.99
per square foot for Albuquerque, $1.48 for Phoenix, $1.08 for the
Navajo.
Now, Albuquerque and Phoenix, are those regional office costs?
Mr. ZUNT. Yes; those are two separate area offices.
Mr. McKar. And they get 50 cents to a dollar more per square foot
for maintenance than the Navajo Area?
Mr. ZUNI. I would have to dispute that conclusion.
Mr. McKAY. Well, give us the facts. then. What is the case?
Mr. ZUNI. I believe the author of the study indicates that the Navajo
is not gotting its equitable share of funding for its maintenance pro-
gram, using the square footage as the sole criterion for the allocation
of funds.
We do not allocate money for that purpose solely on the basis of
square footage. There are other factors that enter into the determina-
tion of the allocation.
Mr. McKAY. What are they ?
Mr. ZUNI. They include the type of facilities involved, the location,
the climatic conditions, the age of the buildings, the utility to which the
building is put to use.
Mr. McKAY. Are those figures accurate that I just gave you?
Mr. ZUNI. If you use square footage as the yardstick, probably yes.
Mr. McKAr. The Navajo Reservation has approximately $1 per
square foot less than Albuquerque for maintenance. Is Albuquerque
a regional office of the Bureau?
Mr. ZUNI. Yes.
Mr. McKar. Do you base this on the fact that you can get things
done cheaper on the Navaio Reservation than you can in Albuquerque?
Mr. ZUNI. No; I don't think SO. I think the costs would be similar,
if not more expensive on the Navajo, because of the geographic isola-
tion.
Mr. YATES. That study from BIA would seem to indicate that there
is a discrimination against the Navajos, in terms of allocation in the
area. Would you check those figures and let us know?
Mr. ZUNI. Yes.
Mr. McKAr. And then outline the criteria you use to arrive at the
maintenance allocations for the various school buildings.
[The information follows:]
MAINTENANCE FACTOR
The methods used in allocation of funds were related to inventories that work
into consideration factors other than just square footage.
The facilities management tion system used to establish
was the early 1960's and used through fiscal year 1973 The
system was based OH our facility inventories costs which were equated to each
inventory category. These combined costs gave the basic theoretical maintenance
dollars per location. To these dollars. dollars (percent of basic mainie nce
dollar) were added for major repair. equipment repair. and support services.
These totals per location were the projected maintenance program. The area
offices would review and from experience modify the data. This revised program
then became the approved repair and maintenance allocation.
727
Since fiscal yea. 187L, the allocations have been based OR tribal pri rities 03
reflected in the band analysis.
TRIBES DETERMINE PRIORITY
Mr. KUNI. I would like to point out one thing, Congressman.
Until 4 years ago. we used to allocate money to the area offices on a
formula basis. that we have just been discussing. But now we have
included the funding for plant operation and maintenance on the
band analysis, or tribal priority basis. The tribes are now partici-
pating in determining the priorities of programs on their respective
reservations. So it. becomes a matter of the individual tribes that are
participating in the development of our budget estimates: to give pri-
ority to this program. Plant operation and maintenance is not a popu-
lar program. It is not a sexy program. The tribes invariably will give
inore attention to programs that directly benefit them.
By way of illustration, the range water development program, an
education program, a scholarship program, would probably rate a
higher priority -than the operation and repair of buildings and utili-
ties.
Mr. McKAY. You are talking about the total budget that goes to the
Indians.
Mr. YATES. is that true with respect to the Navajõs? The Navajos
apparently don't believe that, do they ?
Mr. ZUNI. No. This is an exception. really, in that the School Board
Association is concerned about the state-the condition.
Mr. YATES. And it is in very bad condition, is it not?
Mr. ZUNI. Right.
Mr. YATTS. And we ought to do something about it, shouldn't we?
Mr. ZUNI. We should.
Mr. McKAY. Even though the tribes have some voice in priority
selection. you are still telling us that you have authority and respon-
sibility. It seems to me. in all honesty to the Indians and the U.S. tax-
payer, that we should not waste the money already invested in school
buildings. I do not know if you have the choice to let schools and school
maintenance go to pieces.
Mr. ZUNI. No. I think the investment of the U.S. Government should
be protected. especially when it is serving or supporting a very impor-
tant program: the education of the Indian youngsters in this particular
instance.
Mr. McKAY. But you implied that the reason you did not submit
a
different budget was because the Indians said, "We want this as our
priority." And then you let the other one-schools and maintenance--
go. But under your charge as trustees, maybe vou are giving undue
weight to those priorities-either that, or. as the chairman indicated.
you better be coming in here asking for 10 times more. or the
costs may be. SO that you can maintain our present investment before
starting on another program, hadn't you?
Mr. ZUNI. Yes-if we did not have the constraints of a fiscal policy,
we would probably be doing precisely that.
728
FISCAL CONSTRAINTS
Mr. ATES. It really is not fair to approach it that way. It is not fair
to the Navajos; it is not fair to the other Indians in the Indian com-
munity is say that we have fiscal restraints and cannot do it. As far as
they are concerned, they have had fiscal constraints going back 50 years
and more, haven't they?
Mr. ZUNI. Yes.
Mr. YATES. So that the busines of applying a standard now that you
say is restricted because of budget conditions, is a standard that the
Indian community always has had to face. The question is what do we
ao now in order to correct what you agree is a very, very bad situation
on the Navajo reservation The committee would like to be apprised of
what the situation is in other Indian communities as well. If other In-
dian communities are suffering the same kind of degraded school fa-
cilities and environment that is apparent in the Navajo community,
this committee wants to be apprised of that as well, SO that we can take
steps to correct it.
I don't think the BIA has told us the whole story, and I think it
should be criticized for it. The committee wants to be told the full story.
We want to know what the Government should be doing in this budget
for the Indian community. We haven't been told that story. not only in
this respect. but I assume in other respects as well. I think that we
ought to be facing up to what the responsibilities of the Government
Area Facility on ENTI ag Construction FUNDS only ASQ
are.
ADMINISTRATIVE COSTS
In making funds available for school construction, are the adminis-
istrative costs of BIA deducted from the amounts available?
Mr. ZUNI. Yes.
Mr. YATES. Is that through each of the levels. from the BIA in
Washington through the area representative. through the agency
office, down to the tribe? Is that deducted from the amount of funds
made available for the construction of the schools?
Mr. SEARCY. Well, for the operation of the area office. superintend-
No
ents out in the reservation. his personal staff, field type administration
operation, that is true-the Washington office is not.
Mr. YATES. How significant a charge on the fund is that?
Mr. SEARCY We are talking about 1/4 percent, sir.
Mr. McKAr. Will the Chair yield?
Mr. YATES. Sure.
MATCHING EDUCATION FUND
Mr. McKar. In funds presented by this committee to the school
hoards, tribe, and offices. are there matching funds provided by
the tribes?
Mr. ZUNI. No.
Mr. McKay. None at all?
Mr. ZUNI. No, sir.
Mr. McKAY. So we totally fund the education program of the
Indians?
Mr. ZUNI. One hundred percent.
Mr. McKAY. Whether Navajos or any other?
729
Mr. ZUNI Right.
Mr. McKar. They do not put in anything?
Mr. ZUNI. That is correct.
DETERMINING SCHOOL CONSTRUCTION NEEDS
Mr. YATES. How does the BIA determine school construction needs
on a nationwide basis?
Mr. ZUNI. The Bureau follows a criteria of replacing those facili-
ties that have burned down or are destroyed by an act of God. and
that would be a No. 1 priority. The second priority would be to replace
those buildings and facilities that are a danger to the health and
safety of the youngsters. And third, to house students that night be
unhoused. Those are the criteria.
Mr. YATES. How do you get that information?
Mr. ZUNI. This is based upon the information that is provided to
us by the field.
Mr. YATES. We were told by Dr. Wauneka. and by the gentleman
who accompanied her, that they had difficulty making known this
condition to the Commissioner. They sent him material and never
received an acknowledgement. When they went to see him. and had
an appointment with him. he said he had never seen the material.
Is this representative of the way the Bureau operates? How much
material does the Commissioner see and how much does he not see?
Mr. ZUNI. Well. I think that the Commissioner usually has this
type of material reviewed and digested by this staff and the informa-
tion made available to him by his staff.
Mr. YATES. Apparently the staff swallowed this material because
it never got to the Commissioner.
Mr. ZUNI. Well. very poor staff work in this instance.
Mr. YATES. It seems fortunate that Navajo representatives have
to come all the way to Washington in order to make their complaint
known: doesn't it?
Mr. DUNCAN. Mr. Chairman, did you go into the responsibility of
those who designed and built these?
Mr. YATES. I propose to do that. Would you like to ask some
questions?
Mr. DUNCAN. If you have some, go ahead.
CONSTRUCTION AND MAINTENANCE STANDARDS
Mr. YATES. What standards does the BIA follow for construction
and maintenance of school facilities? Have you anv established stand-
ards? Are your standards the same as those of public schools in the
surrounding area?
Mr. ZUNI. Yes, we do. And I would like to ask Pat Donnelly to
respond tc the criteria that we follow.
Ms. DONNELLY. Up until abcut a year ago, We using Navy
standards for maintenance. But we have developed and have in proc-
ess now our new manual, which will have supplements for mainte-
nance.
Mr. YATES. For maintaining school properties?
Ms. DONNELLY. Yes.
730
It will give the standards in maintaining floors. walls. and SO forth.
Up to about a year ago, we had been using the Navy standards.
Mr. YATES. Why were not standards for schools used?
Mr. DUNCAN. You are talking about construction standards?
Mr. YATES. I am talking about both construction and maintenance
standards.
Ms. DONNELLY. I was directing my remarks to maintenance.
Mr. YATES. What about construction standards?
Ms. DONNELLY. I don't know of any that have been developed.
Mr. YATES. Do you know of any?
Mr. ZUNI. I don't think the Bureau has its own set of standards for
school construction. We are governed by the standards that prevail
in the States in which we are constructing our facilities.
POOR DESIGN AND CONSTRUCTION
Mr. DUNCAN. Mr. Chairman-surely you had an architect that drew
some specifications and some plans.
Looking through this book, this is not vandalism by the Indian
youngsters. This is just absolutely poor design or poor construction.
And it seems to me that even the architect or the contractor that built-
the buildings ought to be going back there and doing something
about it.
Have you investigated this aspect of it ?
Mr. ZUNI. No. sir. we have not.
Mr. DUNCAN. Why not?
Isn't that the most obvious way to go, rather than to come back for
more money to rebuild them?
Mr. ZUNI. Yes.
Mr. DUNCAN. Am I incorrect-did someone tell me these buildings
were 10 years or less of age?
Isn't that a fair statement?
Mr. ZUNI. Yes.
Mr. DUNCAN. Has this deterioration just begun to be visible in the
last few months, or is this something that was visible within months
of occupancy?
Mr. ZUNI. I am not aware of the situation.
Mr. DUNCAN. You are not ?
Mr. ZUNI. No.
Mr. DUNCAN. Well. who would be?
Mr. ZUNI. Our plant managers probably would be. But we do have
a problem with our buildings in some locations.
Mr. DUNCAN. Weren't they all let out to contract?
Mr. ZUNI. Yes.
Mr. DUNCAN. These were not self-constructed, as a self-heip Indian
thing?
Mr. ZUNI. No.
Mr. DUNCAN. If they had been, I hat, they would MA be falling apart.
Mr. ZUNI. Probably better constructed.
731
LIST OF CONSTRUCTION CONTRACTORS
Mr. DUNCAN. I think that we ought to ask your maintenance man
to supply for the record at this point the names and addresses ( the
designers and the construction contractors on each one of these
buildings.
Mr. YATES. And the architects.
Mr. DUNCAN. All right. The architect. the designer. the contractor,
the amounts you paid! what if any efforts were made to have the con-
tractor make adjustments, either in dollar damages, or by restoring
the building to the condition that it should have been constructed to
in the first place.
Mr. YATES. May I supplement that ? I think we would like to know.
in addition. what inspection methods you employed, not. only at the
time of construction. but also. sav. a year later, by somebody checking
to see when this deterioration took place.
Would your local people know that?
Mr. ZUNI. Yes.
Mr. YATES. And would they have advised you about that?
Mr. ZUNL Yes.
Mr. YATES. Would your files show that?
Mr. ZUNI. Yes.
Mr. YATES. Please provide that information for the record.
[The information follows:]
782
NAMES AND ADDRESSES CF THE CONSTRUCTION CONTRACTORS
Sanostee School - ,Photograph 1, 2, 3, 4,
30, 22, 23, 24, 25, 26, 27, & 28
Contractor - Northeast Construction Co. of W. Virginia
500 Sycamore Street
Tiffin, Chio
Contract - $3,859,000
Award
- 4/11/65
Inspection - B.I.A
Architect/Engineer - In-house
Ft. Defiance - Quarters - Photograph 5, 6, & 7
Constructed 1938. Records lacking.
Toadlena Boarding School - Photograph 8, 9, 10, 11
& 12
Contractor - H.R. McPride Construction Co.
Drawer 1320
Farmington, New Mexico
Contract
- $1,437,000
Award
- 4/13/62
Inspection - B.I.A
Architect/Engineer - In-house
Ft. Wingate High School - Photograph 13, 14, 15 & 39
Contractor - Kaufman & Broad Bldg. Co.
3033 N. Central, Suite 408
Phoenix 12, Arizona
Contract - $5,597,900
Award
- 6/28/63
Inspection - B.I.A
Architect/Engineer - Kruger, Lake s Hendersor
Albuquerque, New Mexico
Unidentified Location - Photograph 16 & 17
Data unavailable
Kobeto School - Photograph 11, 15, 20, 21, & 31
Contractor - Lembke Construction Co.
Albueuerque, New Mexico
Contract - $758,802
Award
- 4/6/62
A/E
- In-house
733
Cont. Kafbeto School
Contractor - Northeast Construction Co. of W. Virginia
Contract
- $4,195,080
Award
- 1/20/64
A/E
- In-house
Greasewood School T Photograph 32. 34, & 40
Contractor - Lembke Construction Co., Inc.
P.O. Box 455
Albuquerque, New Mexico
Contract
- $3,195,062
Award
- 10/19/62
A/E
- In-house
Ft. Defiance Supt. Office - Photograph 33
Unknown due to lack of records
Ft. Wingate Elementary School - Photograph 35 & 36
Contractor - George A. Rutherford, Inc.
Box 1778
Alouquerque, New Mexico
Contract
- $1,176,800
Award
- 7/8/59
A/E
- In-house
Contractor - Hesselden Construction Co.
P.O. Box 3146, Sta. D
Albuquerque, New Mexico
Contract
- $144,840 (girls dorm)
Award
- 9/23/60
A/E
- In-house
Ft. Wingate - 1906-39 - Photograph 37, 38, 41, & 29
lack of records
Tuba City Boarding School - Photograph 42
Built 1919 - unknown due to lack of records
784
INSPECTION
The projects were inspected during construction. Also a 1-year warranty inspec-
tion was performed and contractor deficiencies corrected for each project in
accordance with standard procedures.
Mr. DUNCAN. Mr. Chairman-I would like to see a sample copy at
least of your contract with the architect or designer, and your contract
with the building contractor, tc see what specifications, what perform-
ance standards, you had in those contracts. And it seems to me that
you ought to be contacting the Solicitor of the Bureau of Indian
Affairs, the Department of the Interior, to see whether the Department
of Justice,ought to look into this Of not.
Mr. YATES. We will call the Solicitor's Office and have him look into
this matter for you.
[NOTE.-The in formation was supplied to the committee.]
CONSTRUCTION STANDARDS
Mr. YATES. Has the BIA ever consulted with GSA about construc-
tion standards? GSA, as you know. does a tremendous amount of con-
struction work for the Government.
Mr. ZUNI. I do not recall ever consulting with GSA.
Mr. YATES. Did BIA ever consult with recognized school architects
about the design of the school buildings? Did you use ordinary con-
tractors for this in laying out the design, or did you use school con-
tractors or architects?
Mr. ZUNL Well, the invitation to bid is made to all the A. & E. firms
that have an interest in bidding for the job. So I would have to say
that the opportunity is there for this individual firm. with varying
types of experience, to bid for the jobs.
Mr. YATES. How many schools are there in the Indian community
Mr. MARICH. 193.
NUMBER OF SCHOOLS IN POOR CONDITION
Mr. YATES. And how many are in poor condition?
Mr. ZUNI. Except for the new ones that have been constructed re-
cently, I would say about 50 percent of them.
Mr. YATES. Fifty percent of the 193?
Mr. ZUNI. No; except those that have been recently constructed.
Mr. YATES. How many have been recently constructed? I do not
know what you mean by recently.
Mr. ZUNI. Ten or twenty.
M. YATES. So let's my 175 have not been recently constructed. Of
the 175 schools, how many are in deteriorated condition, comparable
to those in the pictures that the committee has viewed today?
Mr. ZUNI. I think that we will have to provide that for the record.
Mr YATES ! think WA my/m to know, and 1 think von moht to
know, also.
Mr. DUNCAN. Mr. Chairman. I would like you to put in the record,
too, what steps you are taking with respect to your architectural con-
tracts and your construction contracts to see that that does not happen'
again. There is no use in us puting add-ons in here for school construe-
tion for the Indians if we are going to have to rebuild every building
735
every 10 years-absolutely not. And I think it is incumbent upon the
Bureau to advise this committee what they we doing, both to recoup
the loss, and to prevent such things happening again.
Mr. ZUNI. Yes, sir.
[The information follows:]
DETERMOSATED CONDITION OF SCHOOLS
Facilities are designed, constructed, and inspected using acceptable practices
and applicable codes and/or regulations. There is & certain amount of mainte-
nance required if deteriorated conditions are to be minimized. In addition, certain
material has an effective lifetime cycle and must be replaced on a periodic basis.
Therefore, all facilities are at some stage of deterioration. An effective manager
would schedule resources for replacing or repair of materials to prolong the use-
ful life of the facilities. Our estimate of facilities which are at the level of main-
tenance indicated in the pictures is 10 percent of 175 or 18.
CONSTRUCTION BACKLOG
Mr. YATES. Do you have a current backlog of construction needs of
Indian schools?
Mr. ZUNI. Yes; we do.
Mr. YATES. What is that backlog?
Mr. ZUNI. Construction backlog-as I mentioned earlier-is around
$500 million.
Mr. YATES. Is the backlog for new construction?
Mr. ZUNI. This is all new construction.
Mr. YATES. How many schools are represented by that figure?
Mr. ZUNI. This represents all construction. I do not know what per-
cent of this would represent schools.
Mr. McKAY. Mr. Chairman-does that take into consideration the
study? The Commissioner testified here that they are in the process of
reviewing their "reed," for more schools because their numbers of
children and availability of schools were not adding up. And thev said
they are in the process of that. When is it coming out-do we have a
note as to when they will complete that !
Your figure does not anticipate the results of that study ?
Mr. ZUNI. That is right. It is entirely possible that as we continue
our study, that because of shift in populations on a reservation, or
economic shift, that some of the schools that are planned will not
materialize.
Mr. McKar. How recent is this figure of $500 million
Mr. ZUNI. It is fairly recent.
Mr. McKar. Meaning what-6 months, 1 year?
Mr. ZUNI. About a year ago.
Mr. McKAr. Would you provide for the record how you arrived at
that figure?
Mr. ZUNI. Yes.
Mr. McK AY. And the statistics you used to determine need and that
sort of thing.
Mr. ZUNI. Yes.
[The information follows:]
CONSTRUCTION REQUIREMENT
The $500 million construction requirement was developed by our area/arence
offices and reflects the needs for facilities nt locations under their jurisdiction.
733
Established criteria are used in developing Bureau construction priorities for
budget requests.
BIA MAINTENANCE COMPARED WITH OTHER AGENCIES
Mr. YATES. Has BIA ever compared their maintenance figures with
those of other Federal agencies or school districts?
Mr. ZUNI. I am not aware that they do.
Mr. YATES. If you are not aware of it, it means that the BIA is not
aware of it, does it not?
Mr. ZUNI. Yes.
Mr. YATES. So the BIA is not aware of it.
Mr. WILES. Mr. Chairman, over the years we have compared our
maintenance standards to GSA standards, over a number of years.
Mr. YATES. What do you mean by that-you have compared them?
Mr. WILES. Well, we would say GSA has $1.50 per square foot, and
BIA has some other number. I can go back to the justifications over
the years and find that, it you want me to, where we have compared
it to other standards.
Mr. YATES. Have you compared them with other schools? We are
talking about schools.
Mr. WILES. I thought you said other standards-cxeuse me.
Mr. YATES. These are schools we are talking about. Have you com-
pared them with other schools?
Mr. WILES. Not that I recall. I thought you said other standards.
Mr. YATES. You haven't compared them with school districts, have
you?
Mr. WILES. Not that I recall.
Mr. McKAY. Does GSA deal with standards for military schools or
is that the responsibility of local school districts?
Mr. WILES. I suppose. Or military standards.
Mr. YATES. Mr. Wiles, is there any reason why the Indian schools
should deteriorate SO much more rapidly than the schools in the urban
community
Mr. WILES. Not that know of, Mr. Chairman.
Mr. YATES. The same expenditures are made for construction, are
they not?
Mr. WILES. Right.
Wait a minute, there may be a reason. The Bureau's facilities are
boarding facilities, where the children are there 24 hours a day, and
the school buildings are used during the school day and sometimes
after the school dav So the BIA boarding school will get a lot more
use than the ordinary day school.
Mr. YATES. Have you seen the pictures? 18 that a reason why the
walls on the outside should crack, or the roofs wear out?
Mr. WILES. I was talking about more wear inside the school.
Mr. YATES. The stairs would be worn more.
Mr. DUNCAN. We are not talking about ordinal: and
vandalism. We are talking about shoddy design and construction.
ADEQUACY OF FUNDING REQUESTS
Mr. YATES. Does the BIA have any system for verifying the ade-
quacy of funding requests by your field people? Do you take the word
737
of your field people that this much money is needed for a particular
purpose?
Mr. ZUNI. Not always.
Mr. YATES. You usually cut them down?
Mr. ZUNI. They usually ask for more than we can afford to allocate.
Mr. YATES. So if they say that so much money is needed to prevent
a school from falling apart, you look at your budget, and you decide
this is the amount you can give them rather than the amount that is
necessary; correct?
Mr. ZUNI. Yes: unfortunately.
Mr. REGULA. Who has final responsibility for approval of contracts,
architects, et cetera, in the construction of the building? Does it rest
with the BIA, or does it rest with a local board of education?
Mr. ZUNI. It rests with BIA-the contracting officer is responsible.
Mr. REGULA. Thank you.
TRANSFER OF FUNDS
Mr. McKAY. Is there a possibility that any of the funds for main-
tenance are transferable to causes other than maintenance?
Mr. ZUNI. It is entirely possible that the funds could and have been
diverted for other purposes.
Mr. McKAY. How much has been diverted at any given time in the
last 4 or 5 years?
Mr. ZUNI. This is not admitting, however, that this is permitted to
happen.
Mr. McKAY. We fund $62 million a year for maintenance. and they
have arbitrary authority to move or change it to other priorities.
Mr. YATES. What do you mean they have arbitrary authority You
don't have authority to transfer funds: do you?
Mr. ZUNI. No. If we were to program it for a different purpose, then
we would have to get permission.
Mr. YATES. Doesn't that always happen?
Mr. ZUNI. Yes. I think there have been some instances in which we
have come in for such permission.
Mr. McKar. Some instances where you ask for permission.
Mr. YATES. You have requested a certain amount for maintenance of
schools. Do the funds we allocate for that purpose always go for the
maintenance of schools?
COSTS OF UTILITIES INCREASING
Mr. ZUNI. Yes. But let me tell you of a Jilemma raced by our people
out in the field.
As this committee is aware, the price of fuel has gone up.
Mr. YATES. Very significantly.
Mr. ZUNI. Sc some of our operators, in order ga by. will delay
repairing = hole in the wall. fixing the roof. so that they can have
money to pay for the higher fuel bills. This results in the delay of
repair work which increases the deterioration of the building.
Mr. YATES. Why don't you request a supplemental for those extra
costs?
Mr. ZUNI. We have in the past.
738
Mr. YATES But you had already used some of the money for the
cost of fuel. Then you came back to us for a supplemental to take care
of either the fuel or fixing the hole.
Mr. ZUNL Yes.
Mr. YATES. The question is where did the money go? Did it go to
fix the hose?
Mr. ZUNI. Of course, if you are far behind and you are in a catchup
gams then the holes are always ahead.
Mr. YATES. What you are saying is that you never catch up?
Mr. ZUNI. That is right.
BACKLOG IN NAVAJO SCHOOL PROJECTS
Mr. YATES. How much of a backlog is there on the construction of
Navajo school projects?
Ms. DONNELLY. $210 million.
Mr. YATES. That is the backlog for Navajo alone?
Ms. DONNELLY. Yes.
Mr. McKAY. That is just for repairs-not new construction?
Ms. DONNELLY. That is new construction.
Mr. YATES. New construction of what, schools?
Ms. DONNELLY. Facilities, ves.
I haven't actually seen the list. This has just recently been updated.
I was advised $210 million of the new construction was Navajo. They
have about a $70 to $100 million in major alterations and improve-
monts.
Mr. YATES. How much money is going to be used to catch up with
that backlog this year?
Ms. DONNELLY. $1 million.
ENROLLMENT PATTERNS
Mr. REGULA. Mr. Chairman-has there been any evidence presented
as to the enrollment patterns for the last 5-year period?
Mr. YATES. In the schools?
Mr. REGULA. Yes.
Mr. YATES. Ask Mr. Zuni.
Mr. REGULA. Has there been any evidence presented here today about
your enrollment figures?
Mr. ZUNI. No.
I will ask-Dave. will you respond to the question?
Mr. WARREN. We have an ongoing study regarding the overall
Bureau enrollment
a decline Specific to the Navajo area we
can provide that information.
[The information follows:]
NAYAN REA ENROLLMENT
1971
1972
1973
1974
1975
Day school
1,223
1. 292
1,265
1,255
1,158
Boarding school
21,407
20, x02
19,331
13,605
17,753
Dormitor
2,203
2,164
2,048
1,702
1,458
739
Mr. REGULA. This is what concerns me. I have seen a number of local
school districts get overbuilt because they did not take the time to eval-
uate birth statistics, and project their first grades on through. I am
wondering if you are making an accurate estimate of what your needs
will be, and thereby getting a realistic assessment of what would be
needed in buildings as opposed to what would be ideal.
Mr. WARREN. I think this is going to be forthcoming in the report
that the Senate Appropriations Committee has asked us for regarding
the off-the-reservation boarding schools-the costs, the general char-
acteristics and requirements of those schools. There is a population or
demographic component to those; yes.
Mr. REGULA. How could you arrive at a $210 million figure as being
needed for new school construction without those figures being first
achieved, and then projected?
Mr. ZUNI. These are estimates, Congressman. Let me assure you that
the Bureau can never achieve the ideal funding. We seldom achieve the
minimum funding requirements.
Mr. YATES. You have asked for the minimum for maintenance.
haven't you? You stated that in your justifications. As a matter of fact,
you haven't even asked for the minimum, really. You have asked for a
figure that won't nearly take care of your maintenance needs. Isn't that
correct?
Mr. ZUNI. That is correct.
BIA SUPERVISION OF CONSTRUCTION
Mr. YATES. I am impressed by the fact that I do not think the Bu-
reau should be the one to construct these schools. I think there ought to
be another agency that is given the responsibility of planning, design-
ing, and constructing the schools, and a system of maintenance and in-
spection established, so that this condition is stopped once and for all,
rather than going on year after year after year.
What confidence can the committee have in the future of BIA con-
struction supervision. based on the past?
Mr. ZUNI. I would like to propose this, Mr. Chairman-that we are
talking about probably five different schools.
Mr. YATES. Only five schools?
Mr. ZUNI. The pictures that are reflected.
Mr. YATES. Those are not indicative of other schools.
Mr. ZUNI. No, I am not saying that.
Mr. YATES. You are not ?
Mr. ZUNI. What I would like to do is for the Bureau to investigate
the age, the contractor that was involved. the inspector that was in-
volved, and under what conditions the Bureau accepted the buildings.
Mr. YATES. I think it is about time.
Mr. DUNCAN. Would you also tell us how many more years of useful
life you would expect to get out of these on a building-by-building
basis if we put this money you requested in them?
Mr. ZUNI. Yes.
Mr. DUNCAN. Because they may be worn out now.
[The information follows:]
740
USEFUL LIFE ON BUILDING-BY-BUILDING BASIS
Photographs 1 through 4 - The roofs (installed in 1967) shown for
the institutional buildings started to leak in 1970. The leaks
were repaired using recognized maintenance procedures.
Photograph 5, 6 and 7 - The photographed building was constructed
in 1938 and the 25 year old roof started to leak in 1963. 25 years
is considered in excess of the normal roofing material lifetime
expectancy. Normal inspections were made and records indicate
roof repairs were performed yearly from 1965 through 1975. A
new roof was then installed.
Photographs 8 through 12 - The ceiling damage for the Toadlena
School project was caused by roof leaks. The initial roof was
installed in 1963 and started to leak in 1966. Roof repairs were
performed several times a year from 1966 through 1975. A new roof
system was then installed. Recent inspection indicates that the
new urethane roof system is inferior to the original and requires
replacement within 2 - 3 years.
Photographs 13 through 15 - The wall and soffit damage for the
10 year old Wingate High School could have been minimized through
routine maintenance. The picturesshow the results of a 10 year
deterioration cycle.
Photographs 16 and 17 - The photographs indicate normal residential
construction for post WWZ. Normal maintenance to prevent soffit
and fascia damage would normally be scheduled painting and/or
gutters with downspouts. Gutters in themselves will not solve
the problem unless properly maintained.
Photographs 18 through 21 - The Kaibeto School was completed in
1965. Some of the structural damage was caused by shifting
soils. Through routine maintenance, the damage could have
been minimized.
Photographs 22 through 28 and 30 - The photographs for the Sanostee
School indicate structural damage caused by extremely unstable soil.
The problem possibly could have been eliminated by a different site
selection which may have solved a portion of the differential
soil movement. Sand removal, repair of utility leaks and similar
maintenance is necessary to minimize damage. Corrective action
should have commenced when damage was identified.
Photograph 29 - The housing photograph of a 1939 structure
indicates foundation failure. The house is vacant, condemed
and awaiting razing.
Photograph 41 and 42 - The photographs indicate even the better
older building need routine maintenance to lengthen the useful
life.
741
ROOF REPAIRS
Mr. DUNCAN. You know, these roofs—I got to thinking about them
as I walked over to the floor-these are flat roofs, tar paper mopped,
aren't they
Mr. ZUNI. Right.
Mr. DUNCAN. Have these roofs been mopped at all since they were
built?
Mr. ZUNI. I don't know that.
Mr. DUNCAN. I would like to know that- because the first one was
built in 1967, and that is 9 years-they surely should have been mopped
and maybe another layer of paper put over in that length of time.
Mr. ZUNI. Yes.
Congressman, as a native of New Mexico, and having lived in
Arizona, usually the lifespan of a roof, as shown in those pictures. is
less than 10 years. A contractor will not guarantee anything beyond
10 years.
That means that perhaps some maintenance work should have
been done, if they are older than 10 years.
Mr. DUNCAN. They probably should not guarantee them 10 years,
unless you agree to mop them at least every 3 years. So if these have
not been mopped at all, maybe it is not the contractor's fault on the
roofs. But that still does not explain the foundation.
MR. RAYMOND SMITH, NAVAJO REPRESENTATIVE
Mr. YATES. Mr. Raymond R. Smith, who is a member of the Navajo
Tribal Council, Budget and Finance Committee and Mr. Jack
Crowder are here representing the Navajos. Will you please identify
yourself for the record.
Mr. CROWDER. I am a consultant for the Navajo Area School Board
Association, and also I am working with the education committee
today.
Mr. McKAY. Are you an attorney?
Mr. CROWDER. No, I am a consultant.
Mr. McKAY. What is your background?
Mr. CROWDER. I have been involved in the Navajo reservation for
22 years. I do educational writing. And I do, a lot of photography
and gather data for the school board association. I helped organize
the school board association into a tightly knit unit a little over a
year ago when it become viable.
Mr. YATES. Please proceed, Mr. Smith.
Mr. SMITH. Members of the committee. I appreciate the opportunity
to make a statement here on behalf of the education committee and the
Navajo Area School Board Association.
I am not a member of either one of the commitees. I am a mem. r
of the budget and finance committee of the Navajo Tribe. Last year I
testified before this committee with respect to the add-ons for the BIA
band, and also in respect to add-ons for various operations of the
Navajo Tribe, which the BIA is supporting the Navajo Tribe.
As I have heard here-I was kind of pressed into this situation on a
last minute notice by Miss Wauneka. They felt I was capable of
explaining some of the areas in which the Navajo
especially
69-744 76 48
742
the budget finance committee, was involved in the band analysis,
or the budgetary process of BIA.
As I understand it, the education committee and the Navajo Area
School Board Association were here last week conferring with Com-
missioner Thompson to seek ways to alleviate the condition of these
BIA schools on the Navajo Reservation. I won't go into the details
as I have noticed you have seen the photos of these schools, and also
there was a reference made to a memo dated February 9, 1976, to
Commissioner of Indian Affairs from the acting area director, and the
subject was, "Facility Management, Compliance with the Laws and
Regulations," and also it cites the flagrant violations of laws which
is very serious in our estimation as a member of the budget and finance
committee.
So the budget and finance committee, as a member, supports all
efforts of everyone concerned here, especially on behalf of the Navajo
Tribe, and would like to see something done in this respect.
INPUT OF THE NAVAJO BUDGET AND FINANCE COMMITTEE
I would like to go back to March of 1975. That was a time when the
budget and finance committee had their input into the band analysis
of the Bureau, or the budgeting process of the BIA. And as recom-
mended from the local chapter, which is composed of 102 chapters,
and also from the agency level, their priorities, coming from the
agency and chapter levels, was that education was No. 1. So conse-
quently, you can see here that somebody was at fault for not inform-
ing the budget and finance committee that when you are talking about
education, you are talking about construction of buildings, you are
talking about educating the people, the students, and also various
things that are allied in this respect.
In the limited time that the budget and finance committee was allo-
cated to have their input into the band analysis of the tribe. at that
time the budget and finance committee was making a recommendation
to the Navajo Tribal Council of certain add-ons, which amounted to
$12 million, plus or minus. And at that time, the committee, the budget
finance committee, was completely unaware of the financial condition
of the plant management activities. Had the budget and finance com-
mittee known at the time that these financial situations were in such
deplorable conditions. we would have made a recommendation possibly
for an add-on, in addition to the $12 million which was presented to
this committee in 1976. for 1977 add-ons. But they were not informed
that these financial conditions of the plant management activities were
in such a horrible plight.
Mr. YATES. I don't understand that statement. Isn't the budget and
finance committee aware of the condition of the Navajo schools?
Mr. SMITH. We were not aware of the financial position of the plant
management.
Mr. DUNCAN. But you must have noticed them disintegrating,
though, didn't you, as you went past them, or into them?
Mr. SMITH. Well, the budget and finance committee is a committee
which deals strictly with the tribal budget. We are kind of relying
on other committees to give us the information that we need to ask
for additional funds, or addons in this respect, in a band analysis.
743
Mr. YATES. Are you saying your education committee, which pre-
sumably knows the condition of the schools, has not requested you to
ask for funds for the school?
Mr. SMITH. I have asked the budget and finance committee and the
NASBA School Board Association, if they were aware of these con-
ditions and they were not aware.
Evidently the Bureau of Indian Affairs did not make it known to
the education committee of the tribe or the Navajo Area School Board,
until they personally inspected these facilities.
Mr. McKAY. Aren't those people who live in the area members of the
Navajo School Board?
Mr. SMITH. Yes, sir.
Mr. McKAY. How do they arrive at policy of any kind if they
haven't been around to know what the circumstances of their schools
are? Did they wait for the BIA to tell them what is wrong?
Mr. CROWDER. Let me repeat Mr. Smith's answer. First he said the
business and finance committee was not aware of the financial plight
of plant management. The budget and finance committee would not be
directly involved in our BIA schools because their children go to pub-
lic schools. The school board association are parents of children in
those schools. They are very much aware and have been for a long time
of the deteriorating condition of the buildings.
But they did not know why they were not getting results from their
criticism of the plant management personnel. We spent 2 years attack-
ing plant management, demanding that they do more work.
Mr. McKAY. The BIA.
Mr. CROWDER. Right.
We tried to pin down plant management to make them fix this to-
day, that tomorrow, this next week. When they didn't do that, we put
together programs to try to force them.
Mr. McKAY. But the implication here is that the school board as-
sociation of the Navajos did not report their plight to the finance
committee.
Mr. CROWDER. Because we didn't know it was a money problem. We
assumed it was because plant management was not well organized. We
put together all sorts of attacks on the thing. We did not know they
didn't have the money to do the work.
This study has only been recently done, about 6 months. It is the first
study that has ever been made to show the exact amount of funding
available to plant management, the kind of funding that is necessary
to do the job.
FUNDS ARE NOT GIVEN TO SCHOOL BOARD
Mr. YATES. Maybe we do not know how the money that goes to
repair these schools comes from BIA to the budget and finance com-
mittee, and then to the school committee?
Mr. CROWDER. The money at no time ever comes to the school board.
We are purely advisory. We have absolutely no authority.
FUNCTION OF BUDGET AND FINANCE COMMITTEE
Mr. YATES. What is the function of the budget and finance com-
mittee?
744
Mr. CROWDER. They are invited each year to participate in planning
of a block of money. about $200 million. They are asked, what priority
is first, second. and. third?
Mr. YATES. By BIA?
Mr. CROWDER. Yes.
Mr. YATES. And you told BIA that your first priority was education ?
Mr. SMITH. Yes: education.
Mr. YATES. Did that include the rehabilitation of the schools?
Mr. SMITH. When you talk about education, you are talking about
education, educating students. and that entails construction of schools;
and maintenance of schools. So this all ties in. They are all allied.
So when the band analysis was brought to the budget and finance
committee. the Bureau fiscal officer should explain to the budget
finance committee that these things should have been joined together.
Mr. YATES. Do you mean the BIA man should have told you?
Mr. SMITH. That is the way I feel. As I stated, the budget and
finance committee, we are used to a tribal budget which has line items
This is from year to year. But you have the BIA band analysis which
talks about 95 percent, 110. 120 percent constraint funding. So this
was completely foreign to the budget and finance committee when it
came to us in that form.
And we told the Bureau of Indian Affairs that it was completely
foreign to us, that we did not know what they were talking about.
Mr. YATES. Is this the BIA agent you are talking about, the area
representative?
Mr. SMITH. BIA fiscal officer from Gallup. N. Mex.
Mr. YATES. Apparently there was a misunderstanding between you
and the BIA.
Mr. SMITH. Yes. The budget and finance committee did not fully
understand the way that the band analysis operates or how this fund-
ing process was done.
But we did select a subcommittee of the budget and finance com-
mittee of the Navajo Tribe, and we did work with the fiscal officer,
and we did come to some sort of understanding.
Mr. YATES. An understanding as to what ?
Mr. SMITH. As to how the 95-percent, the 110-, 120-percent con-
straint funding was allocated.
Mr. YATES. Then you understand it more than we do. What does
that mean?
BUREAU PRIORITY SYSTEM
Mr. SMITH. Let me try to explain that. If I am wrong, Mr. Zuni
will correct me.
You have a base figure, which is picked up from the previous year.
The Bureau is asking the tribe, "Well, all right, you have a base
figure for 1976. which is x amount of dollars." They say : "All right.
if you are cut 5 percent. how would you allocate these funds along
these line items?" Or they will ask the question, "If you get 110
percent, or 10 percent over 100 percent, how would you allocate these
funds in these line items?"
Also in the 120 percent-"You are getting 20 percent more. So
how would you allocate these funds? This is how the budget and
finance committee was confronted. And it was very confusing to us,
745
because we have to transfer funds back and forth. and you only have
se much money to play with.
There is not enough money to transfer into these line items. Conse-
quently, when you get into the 95-percent constraint funding, you run
into trouble.
Mr. McKAr. Then what you are telling me is that the BIA said-
"All right, Navajo Tribe, you have so much money. Now, if that is
cut 5 percent, what are your priorities
Mr. SMITH. Right.
Mr. McKAY. But in that situation, it was never discussed on any of
the items as to need; is that right?
Mr. SMITH. Well, yes—
Mr. McKAY. I mean, for example-it is $200 million, we are going
to cut out 10 percent, or 5 percent of the budget, and if we cut 5 per-
cent, where are your needs?
Did you at that point discuss the condition of the schools. or the
condition of the roads, or the conditions of scholarships-those kind
of things-to make your decision as to which was priority?
Mr. SMITH. Yes. Congressman.
Mr McKAY. But the BIA in that discussion did not. give it to you.
Mr. SMITH. We took our priority listing from the chapter level,
and also the agency level. And their recommendation was that educa-
tion would be a No. 1 proirity. Roads would be No. 2, housing would
be No. 3, and so on down the line. There also was a "Need" column in
which you could enter any amount you wanted.
Mr. YATES. What is band analysis?
Mr. ZUNI. Priority system.
Mr. SMITH. May I complete my statement?
Mr. YATES. Yes.
Mr. SMITH. As I have stated here. the budget and finance commit-
tee did not become aware of the financial plight of the plant
management conditions until late 1975. whereupon the area
plant manager informed the budget and finance committee of the
inequities of funding for maintenance. For example, I think you have
the figures there, $1.99 per square foot for the Albuquerque area,
$1.48 for the Phoenix area. and $1.08 for the Navajo area. We feel, in
talking in the budget and finance committee. as was explained by
the plant management for the area. that there are inequities, and there
is discrimination against the Navajo.
Albuquerque and Phoenix are in a geographical area where they
do not have too much rain or too much snow. But the Navajo, we have
a considerable amount of snow, and we feel that something is lack-
ing-the budget and finance committee feels that these flat roofs
should not be built. In other words. maybe we should be spending a
little more money to have a pitched roof. especially in the heavy snow
falls that we have, especially around Crystal, and these areas. So we
have a point there that we want to make clear to the committee. that
these things should be alleviated to correct the situation. Also, I think
you have a resolution from one chapter.
Mr. YATES. We do. Those are already in the record.
Mr. SMITH. And also a resolution from the advisory committee, and
the Navajo area school board.
746
Gentlemen, I think what I have said here, if there are any other ques-
tions-we do need help in getting the maintenance money for repairs
of these facilities on the Navajo Reservation.
REPAIR VERSUS NEW CONSTRUCTION
Mr. YATES. Very frankly. Mr. Smith, I do not know that repairs
will do any good. It is something we have to take up with the BIA. If
the buildings are so far gone that they cannot be corrected, just put-
ting a bandage or a rubberband around them won't do any good, be-
cause you are going to have to have new facilities one of these days.
The pictures indicate that they are SO far gone that maintenance is
almost impossible.
The committee wants to look into the matter. We want to decide
whether we will send people out there to look at the condition of your
schools. The pictures are very graphic. We want to make sure that we
do the right thing. Just putting money into the budget for mainte-
nance as such may not help you. It may just tide you over a year or
two. But you may have to have a new school there.
We are unhappy about the condition of the schools. We are un-
happy about the fact that we were not told everything that we should
have been told by the BIA. We are grateful to you for coming in and
letting us have the viewpoint of the Navajo Nation, and of the Budget
and Finance Committees.
Mr. SMITH. Mr. Chairman, I would like to make another point. We
have a bank called the Great Western Bank at Window Rock. Orig-
inally they also put a flat roof on their building. Consequently, within
2 or 3 years it started leaking. So now they have a pitched roof. And
also we have a supermarket at Window Rock, and they also have a
flat roof, and consequently their roof is leaking now, and it is going to
cost the tribe $20,000 to at least put some tar over it. But that does not
solve the problem. So I do not know where these architects are coming
from, or how they design these building.
Mr. YATES. I think we need some new architects, Mr. Smith. At any
rate, thank you and Mr. Crowder for coming today. Give our regards
to Miss Wauneka.
Mr. SMITH. We will.
Mr. YATES. Mr. Zuni, thank you very much.
Mr. ZUNI. Thank you.