OPA

Secretary of the Interior Cecil D. Andrus has announced the excavation of the 6.8-mile-long Buckskin Mountains Tunnel is expected to be completed on Thursday, May 24. The tunnel, located near Parker, Ariz., is a major feature of the Central Arizona Project.

The Buckskin Mountains Tunnel is a vital link in the 190-mile-long Granite Reef Aqueduct and the planned 58-mile-long Salt-Gila Aqueduct. They are to convey a yearly average of 1.2-million acre feet of Arizona's entitlement to Colorado River water into central Arizona. The water will come from Lake Havasu and supply the Picacho Reservoir in Pinal County, beginning in 1985.

The proposed Tucson Aqueduct, which will provide for the delivery of Colorado River water to Pima County and the Tucson metropolitan area, is scheduled for operation in 1987. Until then, these areas will continue to use surface waters as their primary water source. Growth in population and industrial and agricultural development has resulted in dependence on ground water as a second source of supply with depletion outpacing natural replenishment.

In February 1975, the Department awarded a $58 million contract to the J. F. Shea Company, Inc., of Walnut, Calif., for the construction of the Buckskin Mountains Tunnel, the largest single contract to date on the project.

The Shea Company employed machine-boring and lining the tunnel with precast concrete segments, the first time this construction method has been used on work being performed for the Bureau of Reclamation.

A TBM, or tunnel boring machine, built for the Shea Company by the Robbins Company of Seattle, Wash. began boring in May 1976.

Moving uphill about 5 feet in elevation each mile during its 6.8-mile trip from the tunnel outlet to the tunnel inlet, the TBM has literally ground out approximately 600,000 cubic yards of complex volcanic rocks.

The concrete lining erected immediately behind the TBM is composed of 28,500 quarter segments, 5 feet wide, weighing about 2 tons each. With the concrete lining in place, the inside diameter of the tunnel is 22 feet. It will carry up to 3,000 cubic feet of water per second..

The TBM progressed through the Buckskin Mountains ahead of its projected schedule. It advanced a record of 150 feet in one 24-hour period, and a total of 625 feet in one week during the summer of 1978.

Proposed regulations to establish rules and procedures for the conduct of an election of an interim Yurok Tribal governing committee are being published in the Federal Register, Forrest J. Gerard, Assistant Secretary Indian Affairs announced today.

Gerard said the action is in accord with his November 20, 1978, message to the Hoopa Valley and Yurok people and is intended as one of the first steps leading to participation by the Yurok Tribe in the management of the Hoopa Valley Indian Reservation.

The proposed regulations follow the final publication April 25, 1979 of regulations setting out voters' qualifications and establishing procedures for preparation of a Yurok voting list. They also indicate the duties and responsibilities of the committee.

The final publication on voting criteria clearly indicated in the commentary that this proposed action of assisting the Yurok Tribe to organize is separate from the Short Case and will not usurp the power of the court, Gerard said.

Comments must be received on or before 30 days following publication of the proposed rule. Written comments may be directed to:

Director, Office of Indian Services

Bureau of Indian Affairs

19th and C Streets NW

Washington, D.C. 20240

(202-343-2111)

Proposed regulations effecting major developments and changes in the administration of Bureau of Indian Affairs education programs were published May 22 in the Federal Register, Deputy Assistant Secretary for Indian Affairs Rick Lavis said today.

The regulations implement certain provisions of Title XI of the Education Amendments Act of 1978 (P.L. 95-561); and, the Tribally Controlled Community College Assistance Act of 1978 (P.L. 95-471).

The regulations implementing provisions of P.L. 561 deal with Indian education policies, the establishment of a new line authority structure in BIA education programs, school funding allocations, a new education personnel system, student rights and responsibilities, and school construction applications and procedures.

The regulations implementing the Community College Act prescribe procedures for providing financial and technical assistance to Indian community colleges and, in a separate part, to the Navajo Community College.

Deputy Assistant Secretary Lavis said that for the past five months, task forces comprised of tribal leader nominees, Bureau field and headquarters staff, and private sector individuals have devoted considerable time and energy to developing the regulations.

The proposed section on Indian Education Policies includes a statement of mission followed by 26 specific policy areas. The statement of mission is "to provide quality education opportunities from early childhood through life in accordance with the tribes' needs for cultural and economic well-being in keeping with the wide diversity of Indian tribes and Alaska Native villages as distinct cultural and governmental entities. The Bureau shall manifest consideration of the whole person, taking into account the spiritual, mental, physical and cultural aspects of the person within family and tribal or Alaska Native village context."

Another part of the proposed regulations covers the line authority delegation from the Assistant Secretary - Indian Affairs to the Director of the Office of Indian Education Programs who will supervise and direct all personnel substantially involved in Indian education as provided in Section 1126 of the Act.

The section on BIA education personnel authorizes employment and payment procedures which are patterned, after local public school district procedures (contract) and, therefore, are considered more responsive to the needs of Indian tribes and school administrators. These procedures are primarily controlled at the local school level with the hiring and discharge of school employees subject to Indian school board approval. P.L. 561 exempts these Indian school positions from many of the Federal personnel provisions.

The proposed rules on the allocation of BIA Indian education funds includes, as a major element, a uniform direct funding formula for all BIA supported schools including those operated by tribal groups under contracts with the Bureau. The formula is based on average daily membership at the schools, adjusted by weighting factors such as the grade levels of the students, special programs to meet special needs of the students, geographic factors affecting the cost of programs and other student cost elements.

Comments on the proposed regulations should be sent to Deputy Assistant Secretary Rick Lavis, Department of the Interior, 18th and C Streets, N.W., Washington, D.C. 20240.

There is a 45 day review period for the Community College regulations and 30 days for the other regulations.

The Department of the Interior today released the attached letter from Attorney General Griffin B. Bell to Secretary Cecil D. Andrus concerning the legal principles governing the conduct of the Department of Justice in litigation for the purpose of protecting Indian property rights secured by statutes and treaties.

Honorable Cecil D. Andrus

Secretary of Interior

Washington, D.C.

Dear Mr. Secretary:

As you know, the Department of Justice has long represented the United States in litigation for the purpose of protecting Indian property rights secured by statutes or treaties. This has been and will continue to be an important function of this Department, and I would like to set forth my understanding of the legal principles governing its conduct.

In fulfillment of the special relationship contemplated in the Constitution between the Federal Government and the Indian tribes, the Congress has enacted numerous la\vs and the Senate has ratified numerous treaties for the benefit and protection of Indian tribes and individuals, their property and their way of life. Where these measures require implementation by the Executive Branch, the administrative responsibility typically resides with the Secretary of the Interior. 43 U.S.C. § 1457 (10). The Attorney General is in turn responsible for the conduct, on behalf of the United States, of litigation arising under these statutes and treaties. This obligation in Indian cases is but one aspect --albeit an important one -- of the Attorney General's statutory responsibility for the conduct of litigation in which the United States or an agency or officer thereof is a party or is interested. 28 U.S.C. §§ 516, 519.

The Secretary of the Interior and the Attorney General perform, their duties here, as in all other areas, under the superintendence of the President. We are the President's agents in fulfilling his constitutional duty to take care that the laws be faithfully executed. Where a particular statute, treaty, or Executive Order manifests a purpose to benefit all Indians or a tribe or individual Indians or to protect their property, it is the obligation of the responsible Executive Branch officials to give full effect to that purpose. In your role as Secretary of the Interior, you are charged with administering most of the laws and treaties applying to Indians and are often in a policy formulating role with regard thereto. And where litigation is concerned, it is the duty of the Attorney General to ensure that the interest of the United States in accomplishing the congressional or executive purpose is fully presented in court.

The Executive and Judicial Branches have inferred in many laws extending federal protection to Indian property rights the intent that the Executive act as a fiduciary in administering and enforcing these measures. , Where applicable law imposes such standards of care, faithful execution of the law of course requires the Executive to adhere to those standards. Thus, it in no way diminishes the central importance of our respective functions to acknowledge that they find their source in specific statutes, treaties, and Executive Orders or to recognize that they are to be performed with the ,same faithfulness to legislative and executive purpose as are the obligations devolving upon this branch of the federal establishment generally.

A significant portion of the litigation with which we Are here concerned relates to property rights reserved to a tribe by treaty or in the creation of a reservation or property which Congress has directed be held in trust, managed, or restricted for the benefit of a tribe or individual Indian. When the Attorney General brings an action on behalf of the United States against private individuals or public bodies to protect these rights from encroachment, he vindicates not only the property interests of the tribe or individual Indian, as they may appear under law to the United States, but also the important governmental interest in ensuring that rights guaranteed to Indians under federal laws and treaties are fully effective.

There is no disabling conflict between the performance of these duties and the obligations of the Federal Government to all the people of the Nation. The functional thesis upon which our form of. Government is premised --the Separation of Powers --pre-supposes that the people as a whole benefit when the Executive Branch enforces the laws enacted, and protects Indian property rights recognized in treaty commitments ratified, by a coordinate branch. The fact that an identifiable class realizes tangible benefits from litigation brought by the Federal Government does not distinguish Indian cases from many civil rights, labor, and other cases. Just as we go to court to enforce the laws designed to protect minorities from discrimination or disenfranchisement by the majority, we must litigate when necessary to protect rights secured to Indians without reference to whether any present majority of the citizenry would profit from, or otherwise embrace, that action.

It is important to emphasize, however, that the Attorney General is attorney for the United States in these cases, not a particular tribe or individual Indians. Thus, in a case involving property held in trust for a tribe, the Attorney General is attorney for the United States as "trustee," not the "beneficiary." He is not obliged .to adopt any position favored by a tribe in a particular case, but must instead make his own independent evaluation of the law and facts in determining whether a proposed claim or defense, or argument in support thereof, is sufficiently meritorious to warrant its presentation. This is the same function the Attorney General performs in all cases involving the United States; it is a function that arises from a duty both to the courts and to all those against whom the Government brings its considerable litigating resources.

The litigating position adopted by the Attorney General on behalf of the United States may affect your administrative and policy-making functions. Accordingly, with respect to all litigation in which the Attorney General represents the United States in protecting Indian property rights secured by statutes or treaties, this Department would expect to receive --and would most carefully consider --the advice of your Department, possessing as it does the primary policy responsibility in Indian matters.

Where there are other statutory obligations imposed on the Executive in a particular case aside from those affecting Indians, faithful execution of the laws require the Attorney General to resolve these competing or overlapping interests to arrive at a single position of the United States. In arriving at a single position, however, we must also take into account the rule of construction now firmly established that Congress' actions toward Indians are to be interpreted in light of the special relationship and special responsibilities of the government toward the Indians.

And, finally, the President's duty faithfully to execute existing law does not preclude him from recommending legislative changes in fulfillment of his constitutional duty to propose to the Congress measures he believes necessary and expedient. These measures may --indeed must --be framed with the interest of the Nation as a whole in mind. In so doing, the President has the constitutional authority to call on either of us for our views on legislation to change existing law notwithstanding the duty to execute that law as it now stands.

I look forward to close cooperation between our two Departments in these matters.

A new Bureau of Indian Affairs Agency has been established at Hoquiam, Washington, to serve nine Indian tribes located on the Olympic Peninsula, Assistant Secretary --Indian Affairs, Forrest J Gerard announced today.

Gerard said the new agency will more effectively meet the increasing tribal requests for services to Olympic Peninsula reservations and will improve Bureau performance in meeting responsibilities under the provisions of the Indian Self-Determination and Education Assistance Act (P.L. 93-638).

In the past the Western Washington Agency, located in Everett Washington, has served 21 tribes in its geographic jurisdiction. Under the change announced today the Western Washington Agency will be renamed the Puget Sound Agency and will continue to serve 12 tribes in the Puget Sound Area. The agency in Hoquiam will be called the Olympic Peninsula Agency.

Gerard said the formation of the new agency will not result in any increase in personnel costs or space management and will result in a reduction in travel costs. He also said the reductions, through decreased personnel time in travel, will result in increased staff time in program management and services.

Prior to the establishment of the Olympic Peninsula Agency the BIA had maintained a sub-agency in Hoquiam and most of the personnel who will staff .the new agency already are located there.

The Bureau of Indian Affairs will establish a new Office of Technical Assistance and Training at Brigham City, Utah, on the campus of the BIA ­operated Intermountain Indian School.

Interior Secretary Cecil Andrus formally approved the new unit recently. Assistant Secretary for Indian Affairs Forrest Gerard said that the establishment of the new Training/Technical Assistance Center is part of an overall management improvement effort for the Bureau. "The implementation of the Indian self-determination policy has resulted in increased program responsibility and authority at the local reservation level," Gerard said adding: "Consequently, the need for technical assistance and training has greatly increased at this level, also. The new office at Brigham City will be responsive to this need.''

The Office of Technical Assistance and Training at Brigham City will be part of the BIA's central office organization. It will serve more than 280 Indian tribes, 218 Alaska villages, 13 Alaska Native regional corpora­tions, 82 BIA agencies and 12 BIA area offices. It will provide training, research assistance, needs assessment, evaluation and technical assistance services to Native Americans and BIA staff.

Gerard has stressed the need for basic, systematic changes in the BIA management approach to be responsive to Indian tribal needs under a policy OL self-determination.

On December l, 1978, he appointed John Artichoker, then the Bureau's Phoenix Area Director, to head a task force to plan needed improvements in the training and technical assistance services.

The BIA now has a small training group and an Indian police academy at Brigham City. These units, together with a planning support group from

Billings, Montana and some units of the Indian Education Resources Center, headquartered at Albuquerque, New Mexico, will be consolidated in the first phase of the plan being implemented.

Gerard said he expects the unit to be operational this fall.

The Bureau of Indian Affairs has named new Assistant Area Directors for community services and for economic development in its Phoenix office, Acting Deputy Commissioner Martin Seneca announced today.

LaFollette R. Butler, a Cherokee who has been functioning as Seneca's special assistant since October 1978, will be Assistant Area Director for Community Services. His appointment is effective July 1. His reporting date, however, will be dependent on his release from his Washington assignment.

William P. Ragsdale, Superintendent at the Uintah & Ouray Agency at Ft. Duchesne, Utah, will be the Assistant Area Director for Economic Development effective July 1.

Butler has been since 1969 Special Assistant to the Area Director in Phoenix. At various times he has served temporarily in very responsible roles. These have included assignments as Deputy Area Director, Director of the Central Office of Trust Responsibilities, Director of a special task force to implement the Indian Self-Determination and Education Assistance Act, and Deputy Commissioner of Indian Affairs.

An alumnus of the University of Oklahoma, Butler, 56, began his career with BIA in 1953. He received the Department of the Interior Meritorious Service Award in 1976.

Ragsdale, 32, is also a Cherokee. He has been at the Uintah & Ouray Agency since 1976.

A graduate of Central State College in Oklahoma, he started with the BIA as a teacher at the Concho Indian School in Oklahoma. He worked as a Tribal Operations Specialist at Muskogee. Oklahoma and Flagstaff. Arizona before coming to the Phoenix office in 1975 as a Superintendent Intern.

A former Captain in the U.S. Marine Corps, Ragsdale has done graduate work in social sciences at the University of Oklahoma and the University of Arizona.

Walter R. Mills, a member of the Oglala Sioux Tribe, has been appointed Superintendent of the Colorado River Agency at Parker, Arizona, the Bureau of Indian Affairs has announced.

Mills, 43, has been an Indian Self-Determination Specialist in the Phoenix Area Office the past two years. He formerly served as Administrative Manager of the Phoenix Indian School and, earlier, of the Hopi Agency at Keams Canyon, Arizona. He began his career with BIA in 1971 as an instructor at the Southwestern Indian Polytechnic Institute at Albuquerque, New Mexico.

A graduate of the Haskell Indian Institute, Mills worked in private industry in Oklahoma and Texas from 1963 to 1971.

An analysis of how States and Indian tribes can develop coal mine reclamation plans to comply with provisions of the Surface Mining Control and Reclamation Act of 1977 is available from the Interior Department's Office of Surface Mining (OSM).

"This guide is intended to assist coal-producing States and Indian tribes in preparing their coal mine reclamation programs so that they can qualify to receive funds for reclaiming their abandoned mine land," said Walter N. Heine, OSM Director.

"The Surface Mining Act requires States and Indian tribes to have OSM approval on both their reclamation and regulatory programs before they can qualify for half the fees currently being collected from coal operators," Heine added.

The model plan was developed by an engineering consulting firm under a $96,000 contract with the Appalachian Regional Commission (ARC) and OSM. The plan incorporates ideas submitted by States and Indian tribes as well as the expertise of reclamation specialists in OSM, the ARC and the Soil Conservation Service (SCS) of the Department of Agriculture.

"With this guide, the 25 coal-producing States and the Crow, Hopi and Navajo Tribes should be able to draft their mine land reclamation programs in accordance with our regulations," Heine added.

Under the Act, coal mining companies pay fees of 35 cents a ton for coal that is surface mined, 15 cents a ton for deep-mined coal and 10 cents a ton for lignite Since October 1, 1977, when the fee system became effective, coal producers have paid more than $235 million into the fund.

In addition to the 50 percent to be returned to the States and Indian tribes where the coal is currently being mined, up to 20 percent is used for the Rural Abandoned Mine Program (RAMP) conducted by Agriculture's SCS and $10 million is earmarked for use under the Small Operators Assistance Program (SOAP) for hydrology studies. The balance is reserved to the Secretary of the Interior for the Federal reclamation program.

Regulations to establish two Courts of Indian Offenses, one to serve the Eastern Cherokee Reservation in North Carolina and the other for western Oklahoma Indian tribes served by the Anadarko Area Office of the Bureau of Indian Affairs, are being published in the Federal Register, Interior Assistant Secretary Forrest Gerard announced today.

Recent Federal court decisions have had the effect of withdrawing State law enforcement and judicial services in these areas, leaving the tribes without any existing machinery for law enforcement. The new regulations will temporarily resolve this problem until the tribes have completed the establishment of their own tribal court systems.

The regulations are to be effective upon publication in the Federal Register.

Further information is available from Patrick A. Hayes, Judicial Services Officer, Office of Indian Services, Bureau of Indian Affairs, Washington, D.C. 20240 (202 343-7885).