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GENERAL MEMORANDUM 11-031

GENERAL MEMORANDUM 11-031
FY 2012 Appropriations Request for Indian Affairs, Office of the Special Trustee and Other Interior Programs

In this Memorandum we report on the Administration's budget request for the major programs in the Indian Affairs (IA), Office of the Special Trustee (OST), Environmental Protection Agency (EPA) and related agencies that are of particular interest to Indian tribes and tribal organizations. These programs are funded under the Interior, Environment and Related Agencies appropriations bill.

The Indian Affairs detailed budget information is in chart form and we discuss in the narrative only those issues that describe significant changes or may be of particular interest. The page numbers in this Memorandum refer to each agency's FY 2012 budget justification. The budget describes increases and decreases relative to FY 2010 enacted levels as the FY 2011 appropriations bills have not yet been enacted into law. All federal agencies are currently operating under a Continuing Resolution (CR) mainly at FY 2010 levels. FY 2010 figures in this Memorandum do not include Recovery Act funding.

INDIAN AFFAIRS (IA) BUDGET OVERVIEW

The Administration seeks an FY 2012 funding level of $2.5 billion for Indian Affairs, which is $119 million less than the FY 2010 enacted level. Within the total are $2.36 billion for the Operation of Indian Programs (OIP; a $23.7 million increase over the FY 2010 level) and $104.99 million for Construction (a $120 million decrease from FY 2010).

Highlights within the Indian Affairs budget include the following:

• Increases/Reductions/Savings. The Administration's proposed FY 2012 increases include $25.49 million for Contract Support (total funding of $195.49 million); $3 million for Tribal Grant Support Costs for tribally operated schools (total funding of $46.37 million); $25.8 million for Public Safety and Justice (PS&J) programs, including $2.5 million for tribal courts, $3.5 million for energy projects, and $3.9 million for a school safety and security program at 12 schools and dormitories.

Among the major proposed decreases are Construction (including $60.9 million decrease for Education Construction and $53 million decrease for PS&J Construction) and the Indian Land Consolidation (no funds requested). In addition, the Administration's budget assumes $22.1 million in administrative costs savings ("administrative savings") will be realized under department-wide and program efficiencies in areas such as travel, information technology, and strategic sourcing.

• Pay Increases. The Administration proposes $8.2 million for the FY 2012 "fixed costs" for pay increases "which includes a $7.0 million adjustment for tribal employees of programs that have been contracted or compacted for operation by Tribes." (p. IA-OVW-4) (We note that in a different section of the justification it states $10.7 million would be the "increased costs for teachers salaries during the 2010-2011 school year, based on DoD comparability pay and an adjustment for 638 contracted/compacted tribal employees.") No funds are requested for federal pay increases due to the President's two-year freeze on federal salaries. We also note that the "Fixed Costs and Related Changes" column in the attached budget chart is comprised of not only the pay increase amounts but also the amounts related to internal transfers.

• Budget Structure. Like the FY 2011 budget proposal, the Administration again seeks to transfer certain sub-activities in order to "properly align resources under their existing management/organizational structure." These changes include: Facilities Maintenance from Construction to Bureau of Indian Education (BIE) and Public Safety and Justice under the Operation of Indian Programs; Minerals and Mining from Trust–Natural Resources to Community and Economic Development, and Road Maintenance from Community and Economic Development to Tribal Government.

• Indian Reorganization Act. The Administration proposal includes language that would provide a "clean" Carcieri fix, which would reverse the U.S. Supreme Court's 2009 decision that the Secretary of the Interior did not have authority to take land into trust for tribes recognized after 1934. The language is identical to that proposed in a previous unsuccessful FY 2011 appropriations measure. The text is as follows:

INDIAN REORGANIZATION ACT

SEC. 118. (a) Modification - (1) In general - The first sentence of section 19 of the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 479), is amended - (A) by striking "The term" and inserting "Effective beginning on June 18, 1934, the term"; and (B) by striking "any recognized Indian tribe now under Federal jurisdiction" and inserting "any federally recognized Indian tribe". (2) Effective date - The amendments made by paragraph (1) shall take effect as if included in the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 479), on the date of enactment of that Act. (b) Ratification and confirmation of actions - Any action taken by the Secretary of the Interior pursuant to the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 461 et seq.) for any Indian tribe that was federally recognized on the date of the action is ratified and confirmed, to the extent such action is subjected to challenge based on whether the Indian tribe was federally recognized or under Federal jurisdiction on June 18, 1934, ratified and confirmed as fully to all intents and purposes as if the action had, by prior act of Congress, been specifically authorized and directed. (c) Effect on other laws (1) In general – Nothing in this section or the amendments made by this section affects - (A) the application or effect of any Federal law other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as amended by subsection (a)); or (B) any limitation on the authority of the Secretary of the Interior under any Federal law or regulation other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as so amended). (2) References in other laws - An express reference to the Act of June 18, 1934 (25 U.S.C. 461 et seq.) contained in any other Federal law shall be considered to be a reference to that Act as amended by subsection (a). (p. 699, Department of Interior Appendix)

OFFICE OF THE SPECIAL TRUSTEE

The FY 2012 budget request for the Office of the Special Trustee (OST) is $152,319,000; this includes $31.2 million (a $16 million decrease) for the Office of Historical Accounting. The OST FY 2010 funding level was $176,984,000.

ENVIRONMENTAL PROTECTION AGENCY

The Administration seeks an FY 2012 funding level of $8.9 billion for the EPA, which is $1.3 billion below the FY 2010 enacted level. Funding of interest to tribal environmental programs is mainly contained in the State and Tribal Assistance Grants (STAG) category, for which the Administration seeks $3.86 billion. Within the overall STAG funding are the following requests: Alaska Native Villages Water Supply and Wastewater ($10 million; $3 million less than FY 2010); Tribal Air Quality Management ($13.5 million; $266,000 above FY 2010); and Tribal General Assistance ($71.3 million; $8.5 million above FY 2010). In addition, the Administration requests $20 million to fund a new Tribal Multi-Media program ($10 million less than requested in FY 2011).

OPERATION OF INDIAN PROGRAMS

FY 2010 Enacted $2,335,965,000
FY 2012 Admin. Request $2,359,692,000

The FY 2012 proposed funding for OPERATION OF INDIAN PROGRAMS (OIP) would be a net increase of $23.7 million above the FY 2010 enacted level, with a $65.3 million increase for fixed costs and related changes ("Fixed Costs," comprised of pay increase amounts plus internal transfers), $21.3 million in programmatic funding reductions, and a $20.3 million decrease for anticipated administrative savings.

BUREAU OF INDIAN AFFAIRS

FY 2010 Enacted $1,536,565,000
FY 2012 Admin. Request $1,564,138,000

The Administration proposes increases for: Tribal Government (+$32.4 million programmatic increases and an internal transfer of $26.6 million), Human Services (+$2 million), Trust-Natural Resources Management (+$7.3 million), and Public Safety and Justice (+$20 million programmatic increase).

TRIBAL GOVERNMENT

FY 2010 Enacted $429,778,000
FY 2012 Admin. Request $497,093,000

The Tribal Government subactivities would be: Aide to Tribal Government; Consolidated Tribal Government Program; Self-Governance Compacts; Contract Support; Indian Self-Determination Fund; New Tribes; Small and Needy Tribes; Roads Maintenance; and Tribal Government Program Oversight. For budget details by program, see page IA-CBT-2 of the attached chart.

The proposed budget would provide $67.4 million (including the $26.6 million internal transfer for Road Maintenance and $36.2 million for Fixed Costs) above the FY 2010 enacted level for Tribal Government programs and an $89,000 decrease for Tribal Government Oversight (Central and Regional Offices funds). The budget request assumes a reduction of $1.4 million for administrative savings.

• Contract Support. A program increase of $25.5 million is proposed, for total funding of $195,490,000. The budget proposal also requests $4 million for the Indian Self-Determination Fund ($2 million above FY 2010). The ISD Funds are for first year administrative costs related to new and expanded contracts. The budget justification explains the ISD Fund uses as follows:

Of this increase, $2 million will be internally transferred into the Contract Support line item in FY 2013 to follow the new contracts effected in FY 2012. The remaining $2 million is to be internally transferred into the Contract Support Fund in FY 2012 for the same purpose. By providing stable funding to pay start-up and initial contract support costs, the primary barrier to contracting and compacting new programs is eliminated and Tribes can achieve the Administration's long-standing vision of tribal self-determination. (IA-TG-2)

• Small and Needy Tribes. Like the FY 2011 request, the Administration seeks $2.95 million in order to resume the Small and Needy Tribes program, which provides a minimum TPA base funding to small tribes. The program was discontinued in FY 1999 once all tribes base TPA had reached the minimum thresholds. The budget justification does not say how many tribes are currently receiving less than the recommended thresholds of recurring TPA but states:

There are currently Tribes that receive less than the recommended $160,000 (mainland Tribes) and $200,000 (Alaska Tribes) TPA base funding thresholds. Therefore, an increase of nearly $3 million is proposed to bring those Tribes in the lower 48 states to the minimum TPA threshold of $160,000 and to raise the Alaska Tribes to a minimum threshold of $190,000. This will enable the Tribes to maintain the strength and effectiveness of their governments. Further evaluation of the need by Tribe based on the previous criteria of population and current funding will be used to determine the distribution when funds are appropriated. (IA-TG-3)

• Roads Maintenance. As noted before, the budget proposal would transfer Roads Maintenance from the Community and Economic Development budget category to Tribal Government. Funding is proposed at $25,431,000, which is $1.2 million less than the FY 2010 level due to administrative savings.

• Tribal Government Program Oversight. As in FY 2011, the Administration proposes a $1 million increase for Regional Oversight. The budget justification states that the increase would be used to fund ten new Self-Determination Specialist positions which would be entry level positions that will "provide a broad range of direct field services and technical assistance in the contract development process associated with the effective transfer of Indian Affairs functions to Tribes, as authorized by P.L. 93-638." (IA-TG-4)

Bill Language

• Contract Support Cap. Like prior budget submittals, the Administration again proposes a statutory cap on contract support costs:

notwithstanding any other provision of law, including but not limited to the Indian Self-Determination Act of 1975, as amended, not to exceed $195,490,000 shall be available for payments for contract support costs associated with ongoing contracts, grants, compacts, or annual funding agreements entered into with the Bureau of Indian Affairs prior to or during fiscal year 2012, as authorized by such Act, except that federally recognized tribes, and tribal organizations of federally recognized tribes, may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, or compacts, or annual funding agreements and for unmet welfare assistance costs;

• Contract Support Limitation. Consistent with prior Interior appropriations acts the proposed budget would continue language that attempts to limit the ability of the BIA and IHS to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years as follows:

SEC. 408. Notwithstanding any other provision of law, amounts appropriated to or otherwise designated in committee reports for the Bureau of Indian Affairs and the Indian Health Service by Public Laws 103-138, 103-332, 104-134, 104-208, 105-83, 105-277, 106-113, 106-291, 107-63, 108-7, 108-108, 108-447, 109-54, 109-289, division B and Continuing Appropriations Resolution, 2007 (division B of Public Law 109-289, as amended by Public Laws 110-5 and 110-28), Public Laws 110-92, 110-116, 110-137, 110-149, 110-161, 110-329, 111-6, 111-8, and 111-88 for payments for contract support costs associated with self-determination or self-governance contracts, grants, compacts, or annual funding agreements with the Bureau of Indian Affairs or the Indian Health Service as funded by such Acts, are the total amounts available for fiscal years 1994 through 2011 for such purposes, except that the Bureau of Indian Affairs, tribes, and tribal organizations may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, self-governance compacts, or annual funding agreements.

• TPA Redistribution. The Administration proposes to continue a provision from prior Interior appropriations acts (FYs 1999-2010), which authorizes redistribution of TPA and tribal base funds to alleviate funding inequities as follows:

SEC. 105. Notwithstanding any other provision of law, the Secretary of the Interior is authorized to redistribute any Tribal Priority Allocation funds, including tribal base funds, to alleviate tribal funding inequities by transferring funds to address identified, unmet needs, dual enrollment, overlapping service areas or inaccurate distribution methodologies. No federally recognized tribe shall receive a reduction in Tribal Priority Allocation funds of more than 10 percent in fiscal year 2012. Under circumstances of dual enrollment, overlapping service areas or inaccurate distribution methodologies, the 10 percent limitation does not apply.

• Tribal Shares Language. The budget proposal would continue bill language regarding tribal shares as follows:

Notwithstanding any other provision of law, no funds available to the Bureau of Indian Affairs for central office oversight and Executive Direction and Administrative Services (except executive direction and administrative services funding for Tribal Priority Allocations, regional offices, and facilities operations and maintenance) shall be available for contracts, grants, compacts, or cooperative agreements with the Bureau of Indian Affairs under the provisions of the Indian Self-Determination Act or the Tribal Self-Governance Act of 1994 (Public Law 103-413).

• Disaster Relief Language. The budget proposal would continue previous bill language that authorizes expenditures in excess of the funded amounts in order to provide disaster assistance to Indian communities. Without the language, the Bureau would be prevented from using unobligated funds to provide additional welfare assistance, such as occurred during the 2005Hurricane Katrina disaster. The language states:

Provided, That in cases of designated Federal disasters, the Secretary may exceed such cap, from the amounts provided herein, to provide for disaster relief to Indian communities affected by the disaster;

HUMAN SERVICES

FY 2010 Enacted $136,996,000
FY 2012 Admin. Request $137,827,000

The Human Services subactivities are: Social Services; Welfare Assistance; Indian Child Welfare Act (ICWA); Human Services Tribal Design; and Human Services Program Oversight. For budget details by program, see page IA-CBT-2 of the attached chart.

The proposed budget would provide a $1.5 million increase in overall funding, including a $ 2 million increase for Social Services. Proposed decreases include $1 million under Central Oversight and $430,000 under Fixed Costs. The budget proposal also assumes a reduction of $216,000 for administrative savings.

• Social Services. As in FY 2011, the Administration again seeks a $2 million increase to fund 15 new MSW-degreed social worker positions–11 tribal and 4 under BIA–to improve compliance with the staffing requirements under 25 CFR Part 20.

TRUST–NATURAL RESOURCES MANAGEMENT

FY 2010 Enacted $175,618,000
FY 2012 Admin. Request $162,252,000

The Trust–Natural Resources Management subactivities would be: Natural Resources; Indian Irrigation Operation and Maintenance; Rights Protection Implementation; Tribal Management/Development Programs; Endangered Species; Cooperative Landscape Conservation; Integrated Resource Information; Agriculture and Range; Forestry; Water Resources; Fish/Wildlife & Parks; and Resource Management Oversight. For budget details by program, see pages IA-CBT-2 of the attached chart.

The budget request would result in a net $13.4 million decrease from the FY 2010 level for Trust–Natural Resources Management programs, including an internal transfer of $18.6 million in Minerals and Mining funds to Community in Economic Development. The budget proposal also assumes reductions of $19.3 million for Fixed Costs and $1.4 million in administrative savings. We summarize below some of the increases:

    o Rights Protection Implementation – $1 million increase is requested, for total funding of $29.6 million to increase support to Indian organizations and programs in developing conservation management plans and codes.

    o Tribal Management/Development Program – $1 million increase is requested, for total funding of $8.6 million to support an estimated 33 tribal projects in "conservation management of fish and wildlife resources". (IA-TNR-3)

    o Forestry Program (TPA) – $1 million increase is requested, for total funding of $26.8 million to "maintain productive levels of Forest Inventory and Planning activities" that support the "development of solid forest management plans." (IA-TNR-4)

    o Water Management Planning and PreDevelopment – $1 million increase is requested, for total funding of $6.5 million for this competitive funding program to "empower more Tribes with the opportunity to effectively and efficiently manage their water resources through the approval of additional proposals." (IA-TNR-4)

    o Wildlife & Parks Program (TPA) – $1 million increase is requested, for total funding of $5.9 million to "expand tribal fish and wildlife project management capacity and contribute significantly towards tribal economic growth within the context of growing national demand for outdoor recreation and tourism and ensure the protection of millions of acres of habitat necessary for the conservation of fish, wildlife, and plant resources." (IA-TNR-4)

    o Fish, Wildlife & Parks Projects – $1 million increase is requested, for total funding of $7.45 million for the competitive grant program that funds tribal fish hatchery operation and maintenance efforts.

    o Bennett Freeze Redevelopment – As in FY 2011, the Administration asks again for $1.2 million to begin redevelopment of the "Bennett Freeze" area, which consists of nine Navajo Nation chapters and over three million acres. The Freeze was imposed due to a land dispute between the Navajo and Hopi Nations, which was recently settled after 41 years. The funds will be used for rangeland inventories, strategic range management and conservation plans, other redevelopment activities and hiring two additional staff at the Western Navajo Agency to carry out the increased workload.

    o Cooperative Landscape Conservation –$200,000 is requested "to support a Landscape Conservation Cooperative (LCC) in the Northwest by providing tribal input and a tribal perspective to the LCC." Input and perspective will be via "traditional ecological knowledge (TEK) and in land/resource management strategies that address adaptation and/or mitigation for climate change on Indian lands." (IA-TNR-4)

TRUST–REAL ESTATE SERVICES

FY 2010 Enacted $152,493,000
FY 2012 Admin. Request $125,457,000

The Trust–Real Estate Services subactivities would be: Trust Services; Navajo-Hopi Settlement Program; Probate; Land Title and Records Offices; Real Estate Services; Land Records Improvement; Environmental Quality; Alaskan Native Programs; Rights Protection; and Trust and Real Estate Services Oversight. For budget details by program, see page IA-CBT-2/-3 of the attached chart.

At the request level, the Trust–Real Estate Services (RES) amount would be a net decrease of $27 million, with programmatic increases for Real Estate Services, Environmental Quality Projects, Water Rights Negotiations/Litigation, and RES Oversight. The budget proposes no funding for Probate Backlog ($7.45 million in FY 2010) and assumes a reduction of $2.2 million in administrative savings.

• Probate Backlog – As in FY 2011, the Administration does not seek any FY 2012 funding for this program which was funded at $7,452,000 in FY 2010. It proposes to transfer $1.9 million and four FTEs to Central Oversight-Probate Office. The budget justification states:
Indian Affairs' proposes a reduction of -$7,452,000 because the identified backlog is expected to be completed by the end of FY 2011, including all contractor case preparation efforts. (IA-RES-2)

• Environmental Quality Projects – As in FY 2011, the Administration again requests a $2 million increase to ensure all schools in the Bureau of Indian Education (BIE) school system comply with federal environmental statutes and implement the Environmental Management Systems (EMS). This initiative is the result of a settlement agreement between Indian Affairs and the EPA regarding widespread violations of various environmental laws at a number of BIE-funded schools. Funds will be used to hire 13 environmental professionals who will be responsible for conducting multimedia environmental audits at the schools and dormitories, and assist schools with their EMS. The budget justification states:

The U. S. Environmental Protection Agency (EPA) made schools in Indian Country a National Compliance and Enforcement Priority for 2005–2007 and 2008–2010. EPA inspections identified widespread violations under multiple Federal environmental laws. A global settlement agreement between Indian Affairs and EPA requires Indian Affairs to maintain future compliance with all Federal environmental statutes at all schools. Indian Affairs will assure compliance by implementing a comprehensive environmental management program for schools. The program will integrate environmental audits with implementation of EMS. Additional funds will support efforts to verify compliance with Federal environmental regulations and standards, reporting, permitting, and training requirements, recommend corrective actions, and assure corrective actions are taken.
Environmental staff will also assist schools with developing, implementing, and maintaining EMS. The EMS will enable schools to plan and train to prevent environmental violations, monitor their own activities, and improve their own day-to-day procedures. (IA-RES-4)

• Fort Berthold Oil and Gas Development – As in FY 2011, the Administration again requests a $1 million increase under Real Estate Program to support additional personnel to address the increased energy development activities at the Fort Berthold Agency and Great Plains Regional office. Funds are targeted for positions related to Indian Mineral Leasing and Development Activities, and development of an Oil and Gas Division at the Agency level as well as Regional office positions to provide "coordination, policy, and technical assistance to the Agency."

• Water Rights Negotiations/Litigation – As in FY 2011, the Administration again requests a $1 million increase to support a greater number of "high-scoring proposals" from tribes and Regional offices that have "critical timeframes in [water rights] litigation and ongoing negotiations."

• RES Projects – $10.85 million decrease; the balance of $2.95 million in FY 2012 funds would support completion of the Nez Perce Reservation cadastral surveys required as part of a water rights settlement and to fund high priority "Emergency Surveys" that may be requested via the Indian Affairs Central Office. No funds are requested for the Lease Compliance and Unresolved Rights components previously funded under RES Projects.

• Litigation Support/Attorney Fees – $2.1 million decrease due to program elimination in order "reprioritize available funding to address other core responsibilities to [AIs/ANs]."

PUBLIC SAFETY AND JUSTICE

FY 2010 Enacted $328,855,000
FY 2012 Admin. Request $354,709,000

The Public Safety and Justice subactivities would be: Law Enforcement; Conservation Law Enforcement Officer Program; Tribal Courts; and Fire Protection. For budget details by program, see pages IA-CFT-3 of the attached chart.

The proposed budget would provide a net $25.8 million increase from the FY 2010 level, with $20 million in programmatic increases, $10.6 million for Fixed Costs, and an internal transfer of $12.8 million for Facilities Operations and Maintenance. The budget proposal also assumes a reduction of $4.75 million in administrative savings.

Law Enforcement increases include:

    o Criminal Investigations and Police Services – $5.1 million increase sought for hiring additional police officers in Indian Country, for total funding of $189.3 million. Of the increase, $3.5 million would be allocated to tribal base funding under Criminal Investigations and Police Services, and $1.6 million would be for BIA direct staff and initiatives to increase policing in high crime areas.
    o Detention/Corrections – $10.4 million increase requested, for total funding of $84.9 million. The budget justification states that approximately 70 percent of the increase would be allocated to tribal base funding and the balance for operation of Indian Affairs' detention programs. The justification also notes that while progress has been made to address staffing shortages at detention facilities, shortages remain and will grow as new facilities come online by the end of FY 2012, and there are other detention facility needs. The budget justification states:

    In response [to an FY04 Office of Inspector General report], Indian Affairs calculated the Standard Space Staffing Requirement for each facility throughout Indian Country in accordance with the National Institute of Corrections (NIC) standards. While progress has been made toward remedying the identified deficiencies, current facilities remain understaffed by a total of 459 positions (177 Indian Affairs and 282 tribally funded P.L. 93-638 positions.) In addition, under the TLOA [Tribal Law and Order Act], additional technical assistance to Tribes will be required from Indian Affairs for the start-up and activation of newly constructed facilities, negotiating contracts with state and local jails for adult and juvenile bed space, inspection and certification processes, corrective action plan implementation, and assistance with grant applications. Also, under the TLOA, tribal courts are provided the opportunity to give extended jail sentences to tribal citizens convicted of crimes. The extended sentencing could increase the inmate populations at jails, causing the availability of short term bed space to be significantly reduced, and therefore create a need for additional contract bed space and detention resources.
    Funded by the American Recovery and Reinvestment Act of 2009 (ARRA), the Department of Justice (DOJ) awarded 13 grants to Tribes for the construction and/or expansion of detention facilities; six of the grants were awarded to non self-governance Tribes. Indian Affairs is responsible for funding the operation of these six facilities whether they are operated by Indian Affairs or through P.L. 93-638 contracts or compacts. Based on an analysis prepared by the DOJ technical assistance grantee, an estimated total of 323 additional staff will be required to operate the six new or expanded facilities scheduled to become operational by the end of FY 2012. The requested increase will help to alleviate staffing shortages at these detention centers. (IA-PSJ-2/-3)

    o Facilities Operations & Maintenance – As in FY 2011, the Administration again proposes an internal transfer of $12.78 million in Facilities O&M for detention centers from Construction to the Operation of Indian Programs-Public Safety and Justice account. The budget justification states:

    To increase transparency of funding within the FY 2012 budget, facilities maintenance for detention facilities is proposed for internal transfer from Public Safety and Justice Construction and Executive Direction and Administrative Services budget activities to the Public Safety and Justice budget activity within the Operation of Indian Programs account. These maintenance funds represent an annual operational cost of the program and should be reflected accordingly in the budget. This approach is also consistent with other Departmental bureaus. (IA-PSJ-1/-2)
    In addition, the budget proposal seeks a $1 million increase that would fund the operation and maintenance of four new detention facilities that are expected to open in FY 2011.

• Conservation Law Enforcement Officer Program – $1 million is requested to establish a Conservation Law Enforcement Officer (CLEO) line item as base funding for tribes to hire CLEOs whose purpose will be the protection of tribal natural resources but "are often cross-deputized with local law enforcement to provide…assistance in enforcing criminal law." The requested amount is estimated to fund 20 tribal CLEOs.

• Tribal Courts – $2.5 million increase, for total funding of $23.4 million, to continue improvement in the 185 Indian Affairs-funded tribal court operations through hiring additional judges and staff and addressing other general operating needs. The budget justification states:

The fight against crime and drugs in Indian Country has led to more arrests, which is increasing the caseload in the tribal court system. Further, the tribal court system is continuing its implementation of the TLOA, which gives tribal courts increased sentencing authority and increases compliance requirements. The additional requested funds will be utilized for ongoing daily operations at the 185 Indian Affairs-funded tribal courts and Courts of Federal Regulation throughout Indian Country. This effort includes hiring additional judges and other court staff necessary to operate the court and ensure the timely processing of cases as well as purchasing equipment, and funding other general operating costs. (IA-PSJ-3/-4)

COMMUNITY AND ECONOMIC DEVELOPMENT

FY 2010 Enacted $44,910,000
FY 2012 Admin. Request $34,865,000

The Community and Economic Development (CED) subactivities would be: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight.

The budget request would result in a net decrease of $10 million from the FY 2010 level, including a programmatic increase of $500,000 and a reduction of $239,000 in administrative savings. The Administration also seeks to transfer Road Maintenance ($26.5 million) from CED to the Tribal Government category and transfer in Minerals and Mining ($18.6 million) from Trust-Natural Resources. For budget details by program, see page IA-CFT-3 of the attached chart.

• Minerals and Mining. As in FY 2011, the Administration seeks to transfer the Minerals and Mining (M&M) funds and seeks a $500,000 increase for the M&M Program line item. The M&M Program increase is intended to fully fund the Indian Energy Development Office located in New Town, ND. The office was established at the request of Congress in FY 2009 and funded jointly by BLM, MMS, BIA and OST for FYs 2009 and 2010, with the understanding that Indian Affairs would seek continuation funding starting in FY 2011.

The Administration again seeks to shift M&M Projects funding focus from conventional energy development projects to competitive grant awards for renewable energy and mineral resources development on trust lands. The budget justification states:

The shift in funding requested in FY 2012 between conventional and sustainable energy allows for further development of renewable energy and mineral resources for approximately 12 projects. The funding awards are competitive in nature and are based upon the evaluation of submitted requests for assistance from Tribes interested in developing their resource potentials. In recent years, the Department has received numerous high-quality proposals annually from Tribes. These funds will allow the Department to support more tribal projects. (IA-CED-3)

EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES

FY 2010 Enacted $267,915,000
FY 2012 Admin. Request $251,935,000

The Executive Direction and Administrative Services subactivities would be: Assistant Secretary Support; Executive Direction; Administrative Services; Information Resources Technology; Human Capital Management; Facilities Management, Intra-Governmental Payments; and Rentals.

The budget request reflects an internal transfer of $6.25 million for funds associated with Facilities Management-detention facilities, which is transferred to the appropriate Operation of Indian Programs account. The budget proposal proposes programmatic reductions totaling $4.7 million and assumes a reduction of $4.8 million in administrative savings. For budget details by program, see page IA-CFT-3 of the attached chart.

• Data Management. As in FY 2011, the Administration seeks $500,000 to further the development of a data management system, a process intended to result in a single data information collection and management system for tribes to assess performance data reporting requirements and determine data collection needs. There will be three components to the data management system—Performance Management System (PMS); Data Analysis and Use; and Data Security. The budget justification states:

The FY 2012 goal for this initiative is to develop an IT system for the Tribes to track performance data information and provide additional reporting capabilities for tribal use. The IA PMS serves as a model for the Tribes to use in the development of a tribal reporting system. The $500,000 request will allow additional system development and will include the implementation of the system for self-governance and contract Tribes. Past accomplishments include modifying the DOI's Activity Based Costing Module (ABCM) to accommodate IA needs, and mapping all tribal measures to the DOI Strategic Plan. (IA-ADM-3)

BUREAU OF INDIAN EDUCATION

FY 2010 Enacted $799,400,000
FY 2012 Admin. Request $795,554,000

The Bureau of Indian Education (BIE) category displays funds for the BIE-funded elementary and secondary school system as well as other education programs including higher education and scholarships. The subactivities are: Elementary and Secondary Programs–Forward Funded; Elementary and Secondary Programs (non-forward funded); Post Secondary Programs–Forward Funded, Post Secondary Programs (non-forward funded); and Education Management.

General Overview. The proposed budget would provide $3.8 million less than the FY 2010 level, including total funding of $648.8 million for School Operations, $124.7 million for Post Secondary Programs, and $22 million for Education Management. The budget proposal assumes a reduction of $5.2 million in administrative savings. For budget details by program, see pages IA-CBT-4 of the attached chart.

School Operations Overview. Highlights of the proposed budget impacting BIE schools include:

-- Programmatic increases of $3 million for Tribal Grant Support Costs (formerly called Administrative Cost Grants) and $3.9 million for ISEP Program Adjustments. As a result, the forward-funded elementary + secondary school programs would see a net increase of $7.4 million over FY 2010. Note, however, that these increases were also contained in the FY 2011 budget request.

-- Budget structure change that would transfer $50.7 million in Facilities Maintenance funds from Construction to the elementary + secondary school non-forward funded programs. No increase in Facilities Maintenance funds is requested.

-- Program eliminations totaling $4.4 million

-- Fixed Costs & Related Changes increase of $52.4 million. This category (Fixed Costs) includes teacher pay raise and internal transfers.

Elementary and Secondary Programs–Forward Funded
FY 2010 Enacted $518,702,000
FY 2012 Admin. Request $526,117,000

Amounts provided under the forward funded category are for use in School Year (SY) 2012-2013. The proposed FY 2012 amount would be a net increase of $7.4 million over the FY 2010 level. There are requested programmatic increases totaling $6.9 million, $3.7 million for Fixed Costs, and a reduction of $3.2 million in administrative savings. The forward funded programs and their proposed funding levels are:

o Tribal Grant Support Costs – $46,373,000 (+$3 million). Funds are for administrative costs of currently tribally-operated schools. As in FY 2010, the Administration does not seek separate funds for the transitional costs associated with schools which convert from federal to tribal operation. The proposed FY 2012 bill language would authorize up to $500,000 of Tribal Grant Support Costs (TGSC) funds to be used for the initial year costs. The BIE estimates the FY 2012 request would provide only 65 percent of administrative costs need in SY 2012-2013 and that three schools may be converting to tribally controlled schools status in FY 2012. The proposed increase is still far below what the Administration seeks to address long-standing indirect costs shortfalls for BIA and IHS non-school contractors.

o Indian School Equalization Formula (ISEF) – $392,306,000. This amount reflects a $607,000 increase due to $3.7 million in Fixed Costs. In SY 2010-2011, the ISEF resulted in a weighted student unit (WSU) of $5,312.38 or $291.36 over the SY 2009-2010 level. It is estimated the WSU for SY 2012-2013 will be $5,320.62.
The Bureau states that of the total SY 2010-2011 ISEF funding, 88 percent ($341 million) supported the basic education programs; 7 percent ($25 million) supported language development programs; 3.8 percent ($15 million) supported Gifted and Talented programs; and the balance went for small school supplements.

o ISEP Program Adjustments – $7,241,000. The Administration seeks $3.9 million to address "significant safety and security issues" at 10 schools and 2 dormitories identified via the Native American Student Information System (NASIS) incident reports as having the most critical needs. The budget justification states:

The requested increase of $3.9 million for FY 2012 will be used in its entirety to address safety and security issues in 10 schools and 2 dormitories deemed to have the most critical needs based on 2009-2010 NASIS incident reports. Detailed surveys and cost estimates were conducted at 20 schools in FY 2010 to identify and prioritize school specific risks and needs. There are plans to complete assessments at an additional 20 schools in FY 2011 and FY 2012. Schools selected for funding have evaluated specific safety needs and developed action plans, including base line data to accurately measure the results of implementation of these plans. Many of the schools and dormitories have already begun to address identified concerns with existing resources, and will continue to work with the regional School Safety Specialist to improve safety and security. (IA-EDU-10)

The balance of Program Adjustment funds are used primarily for the "FOCUS on Student Achievement Project", and a small amount to provide security and police at Chemawa Indian School. The FOCUS program targets schools that are close to meeting the annual measurable objectives set by their state achievement tests and where the additional resources could help them achieve Adequate Yearly Progress (AYP). In SY 2010-2011 there are 12 schools participating in the program.

o Student Transportation – $52,739,000. The FY 2012 amount would be a $60,000 decrease to achieve anticipated administrative savings. Despite acknowledging that an estimated 15 percent of the total BIE transportation miles are on dirt or unimproved road systems, and school buses must cover greater distances than the metropolitan areas–conditions which contribute to greater fuel and maintenance costs– no programmatic increase is sought. The requested amount is expected to provide a SY 2012-2013 payment rate of $3.23 per mile, the same as the SY 2010-2011 rate. The Student Transportation funds are also used to fund two round-trip airfares for students attending off-reservation boarding schools in addition to the operation of school transportation systems.

o Early Childhood Development – $15,399,000. The FY 2012 request reflects a $25,000 increase due to $34,000 in Fixed Costs. In SY 2010-2011 these funds supported the Family and Child Education (FACE) program for pre-school children, parenting skills, adult education and family literacy services at 46 sites.

o Education Program Enhancements – $12,059,000. This reflects a $51,000 decrease to achieve anticipated administrative savings. As in previous years, these funds would be used to continue targeted assistance to schools that have not achieved AYP—particularly those in restructuring status. Funds are primarily used to support BIE Reads and Math Counts programs but eight schools also received grants for specialized student mentoring and tutoring services.

Elementary and Secondary Programs (these are the non-forward funded programs)

FY 2010 Enacted $ 77,379,000
FY 2012 Admin. Request $122,730,000

Amounts provided under the non-forward funded category are for use in SY 2011-2012. In FY 2010, funding under this category supported Facilities Operations; Residential Education Placement Program; Juvenile Detention Education; and Johnson O'Malley (JOM). The FY 2012 request includes the aforementioned $50.7 million transfer of Facilities Maintenance funding and proposes to eliminate the Residential Education Placement and the Juvenile Detention Education programs. Minus the transfer amount, this account is $5.4 million less than the FY 2010 level, including a $769,000 decrease for administrative savings. Program specifics in this category are as follows:

o Facilities Operations – $58,659,000. This reflects a $751,000 decrease to achieve anticipated administrative savings. The Facilities Operations funds are used for costs such as electricity, heating fuels, communications, GSA vehicle rentals, custodial services and numerous other vital operating expenses. For the past several years, schools have received less than 50 percent of the amount needed for Facilities Operations, a gross underfunding that will continue with this budget request.

o Facilities Maintenance – $50,746,000. The FY 2012 amount is the same amount provided in FY 2010. These funds are intended for the preventive and routine upkeep as well as unscheduled maintenance of school buildings, equipment, utility systems and grounds. The budget justification states that the Facilities Maintenance line item transfer to the School Operations account is to "increase transparency" and reflects its status as an annual operational cost. (IA-EDU-2)

o Johnson O'Malley (JOM) – $13,325,000. The FY 2012 amount reflects a $264,000 decrease to achieve anticipated administrative savings. JOM funds provide special academic and culturally relevant educational services to Indian students from age three through the 12th grade at public schools. According to the budget justification, 88 percent of the funds are distributed directly to tribes as base funding through its Self-Governance or Consolidated Tribal Government Programs.

o Program Eliminations – $4,380,000. The Administration proposes to eliminate funding for the following programs in order to "address other core responsibilities to American Indians and Alaska Natives":
Residential Education Placement Program – funded at $3,760,000 in FY 2010 to provide 24-hour institutionalized care for children with severe disabilities. The budget justification states that the schools receive funding from the Department of Education that may be used for this same purpose.
Juvenile Detention Education – funded at $620,000 in FY10 to provide educational services to detained and incarcerated youth at the 24 BIA-funded juvenile detention facilities. The budget justification states:

The program provides limited educational resources for incarcerated children in 24 BIA funded detention facilities, 4 of which are BIA operated. The remaining facilities are operated by Tribes, and some facilities receive funding directly from Tribes for educational services such as textbooks, tutors, computers, educational software, and classroom supplies. (IA-EDU-3)

Education Management

FY 2010 Enacted $26,528,000
FY 2012 Admin. Request $22,006,000

Education Management is comprised of two elements: Education Program Management ($15.3 million) which pays the salaries of BIE personnel who oversee elementary, secondary and post secondary education programs, and Education IT ($6.7 million), which funds the collection and analyses of school performance data. The personnel include those in education line offices, the Division of Compliance, Monitoring, and Accountability, and technical support staff. Specifics for programs in this category are as follows:

o Education Program Management – $15,312,000 for administrative costs in performing services as State Education Agency and like those performed by a public school district for the BIE-funded school system as well as employee separation costs. The FY 2012 request reflects a $3.6 million programmatic decrease and a $172,000 decrease to achieve anticipated administrative savings.

o Education Information Technology – $6,694,000. The FY 2012 request reflects a $670,000 decrease to achieve anticipated administrative savings. Funds are used for data telecommunications to support the Educational Native American Network (ENAN, which provides Internet capability at the schools) and the Native American Student Information System (NASIS, which is a web-based data collection and analysis system used by the BIE).

Bill Language

• Multi-Program Contractors. The Administration proposes to continue the provision in Interior appropriations Acts since FY 2005 that is intended to preserve the ability of tribes who operate both school and non-school programs to receive appropriate funding for administrative costs and indirect costs incurred by these multi-program contractors. The bill language states—

Notwithstanding any other provision of law, including section 113 of title I of appendix C of Public Law 106-113, if in fiscal year 2003 or 2004 a grantee received indirect and administrative costs pursuant to a distribution formula based on section 5(f) of Public 101-301, the Secretary shall continue to distribute indirect and administrative cost funds to such grantee using the section 5(f) distribution formula.

• Jones Academy. The Administration proposes language that would recognize Jones Academy as eligible for school operations funding starting in SY 2012-2013, overriding the current prohibition on new schools. From what we know at this point, it does not appear that the budget seeks any new funding to cover this addition to the BIE-funded school ranks. Presumably, the intent is to supply the Jones Academy with ISEF, student transportation and facilities operation and management funding; if the Academy is tribally-operated, it could also qualify for Tribal Grant Support Costs. The bill text states:

Provided further, That notwithstanding any prohibitions in this Act, the Bureau shall fund the school operations costs of Jones Academy in Hartshorne, Oklahoma for the 2012–2013 school year for grades 1–6 as if Jones Academy were in the Bureau school system as of October 1,1995, and in determining the academic Indian School Equalization Program (ISEP) formula pursuant to 25 CFR Part 39 for the 2012–2013 school year, Jones Academy shall be funded for academic ISEP based on its average student enrollment for the 2009–2010, 2010–2011, and 2011–2012 school years, and thereafter based on its three-year average enrollment determined pursuant to 25 CFR Part 39;

• IDEA Data Collection. The proposed budget would continue language in the Indian Health Service section to authorize the BIE to collect data from the IHS and tribes regarding disabled children in order to assist with the implementation of the Individuals with Disabilities Education Act (IDEA). The language reads:

Provided further, that the Bureau of Indian Affairs may collect from the Indian Health Service, tribes and tribal organizations operating health facilities pursuant to Public Law 93-638, such individually identifiable health information relating to disabled children as may be necessary for the purpose of carrying out its functions under the Individuals with Disabilities Education Act (20 U.S.C. 1400, et. seq.)

Post Secondary Programs (Forward Funded)
FY 2010 Enacted $50,000,000
FY 2012 Admin. Request $64,321,000

Within the total is $63.6 million for Tribal Colleges and Universities (TCU) which includes a built-in increase of $14.3 million, including the addition of Keweenaw Bay Ojibwe Community College to the TCU system in FY 2012. Other funds are $601,000 for Technical Assistance and $109,000 for Endowment Grants. The TCU program will provide funding to 27 tribal colleges in FY 2012.

Post Secondary Programs (Non-Forward Funded)
FY 2010 Enacted $126,791,000
FY 2012 Admin. Request $ 60,380,000

The Post Secondary Programs line items are: Haskell and SIPI operating costs; Tribally Controlled Colleges and Universities Supplements; Tribal Technical Colleges; Scholarships and Adult Education; and Special Higher Education Scholarships. What appears to be a big decrease is the transfer of the main Tribal Colleges and Universities account to a forward funded line item.

• Tribal Technical Colleges. The budget proposes $6.77 million for the tribal technical colleges (United Tribes Technical College and Navajo Technical College), a $103,000 increase over FY 2010 for Fixed Costs. The funds are distributed proportionately between the two schools for a total of $4.5 million for UTTC and $2.2 million for NTC.

• Scholarships and Adult Education. The proposed budget seeks $32.8 million or $1.8 million less than the FY 2010 level; reduction is due to Fixed Costs. Funds are provided to tribes via TPA to award individual post secondary scholarships.

CONSTRUCTION

FY 2010 Enacted $225,000,000
FY 2012 Admin. Request $104,992,000

The Administration's proposal would impose a freeze on "new construction" and would defer replacement facilities construction to focus funds more on the "immediate redress of critical building deficiencies". Thus, the $120 million decrease from the FY 2010 level, including transfer of $57.3 million to the Operation of Indian Programs, programmatic decreases of $61.1 million, and $1.8 million in anticipated administrative savings. The budget justification states:

There was a substantial investment totaling $510 million in Indian schools and detention centers by Indian Affairs ($285.0 million) and the Department of Justice ($225.0 million) under the Recovery Act. In light of this investment, the FY 2012 request also includes a reduction of $8.9 million to Education Construction to maximize funding available for other vital Indian Affairs programs. … (IA-OVW-2)

For budget details by program, see page IA-CBT-4/-5 of the attached chart. We highlight the following in the Construction budget category below.

EDUCATION CONSTRUCTION

FY 2010 Enacted $112,994,000
FY 2012 Admin. Request $ 52,104,000

The Administration proposes a $60.9 million decrease for all education construction and repair activities, including $1.2 million for administrative savings. Funding requests for the major components of Education Construction follow.

Facilities Improvement + Repair
FY 2010 Enacted $85,566,000
FY 2012 Admin. Request $47,669,000

Like the FY 2011 budget proposal, the FY 2012 FI+R request reflects an internal transfer of $50.7 million in Facilities Maintenance funds from Construction to the Operation of Indian Programs–BIE category. The FY 2012 amount includes a $13.8 million increase through the redirection of the Replacement School and Replacement Facility construction funds. The budget justification states:

The FI&R funding will be used to repair major building and/or infrastructure systems and keep the current facilities/infrastructure operational. This redirection in funding will significantly improve the program's ability to meet customer needs. (IA-CON-ED-2)

Within the $47.7 million total are:

o Program Management – $3.2 million
o Minor improvement & repair – $11.2 million ($2.3 mil. above FY 2010)
o Advance planning and design – $1 million
o Condition assessments – $2.5 million
o Demolition/reduction of excess space – $2.98 million
o Emergency repairs – $3.49 million
o Environmental projects – $4.8 million
o Portable classrooms – $1.5 million
o Energy Program – $3.2 million
o Education telecommunications – $350,000
o Boiler inspections – $250,000
o Seismic safety data – $72,000
o Cyclic maintenance – $13.1 million; a new category whereby funds will be used for conducting cyclic maintenance of all buildings, equipment, utility systems and ground structures. The budget justification states:

The focus will be to fund cyclic maintenance items that will extend the life of the facility by reducing the existing functional deferred maintenance backlog that has the potential to escalate in scope and funding. Although these repair backlogs are not categorized as a life safety repair they could escalate into a life safety issue or directly cause multiple life safety issues. Prioritization and approval of the projects will be determined in accordance with the Executive Order 13327, the Federal Real Property Council Guiding Principles, and the DOI Asset Management Plans. (IA-CON-ED-9)

No funds are allocated for the Major Improvement and Repair line item, for which $2.2 million was requested in FY 2011.

Employee Housing
FY 2010 Enacted $4,451,000
FY 2012 Admin. Request $4,435,000

The FY 2012 request reflects a $16,000 decrease to achieve anticipated administrative savings. A 2009 independent housing study that noted many of the 3,500 family housing units did not meet current building and safety codes and standards. The FY 2012 funds will be used to continue asbestos and lead-based paint abatement, along with disposal of housing units previously identified through the study.

Replacement School Construction
FY 2010 Enacted $5,964,000
FY 2012 Admin. Request –0–

This account funded total replacement of an existing school campus, in accordance with a priority construction list, and Advance Planning and Design activities such as the architectural and engineering services. The Bureau reports that of the 42 replacement school projects funded between FY 2001 and FY 2010, six are under construction, five are in the design phase and 31 projects have been completed.

Replacement Facility Construction
FY 2010 Enacted $17,013,000
FY 2012 Admin. Request –0–

The Replacement Facility Construction program provided funds to replace a single building that is part of an existing school campus and was in poor condition.

Bill Language

The budget proposal would continue the appropriations language enacted in FY 2009 that allows the Bureau to take over a construction project from a grantee that fails to complete planning and design of a project and begin construction within 18 months of funds being appropriated (not limited to school construction projects as in years prior to FY 2009). The bill language states:

Provided further, That in order to ensure timely completion of construction projects, the Secretary may assume control of a project and all funds related to the project, if, within eighteen months of the date of enactment of this Act, any grantee receiving funds appropriated in this Act or in any prior Act, has not completed the planning and design phase of the project and commenced construction

OTHER CONSTRUCTION

Public Safety & Justice (PS&J) Construction

FY 2010 Enacted $64,407,000
FY 2012 Admin. Request $11,329,000

Within the PS&J Construction total would be the Employee Housing; Facilities Improvement and Repair (FI+R) program; Fire Safety Coordination; and Fire Protection. The proposed budget, as in FY 2011, does not seek any funds for Facility Replacement/New Construction, would decrease Employee Housing by $5 million and transfer $6.5 million in detention facilities maintenance funds to the OIP-Public Safety and Justice account. Highlights of PS&J construction are as follows:

o Facilities Replacement/New Construction –As noted, no funds are sought in order to eliminate overlapping with DOJ efforts, and instead focus Indian Affairs efforts on the operation and maintenance of the facilities. The budget justification states:

The Public Safety and Justice (PS&J) Construction program is funded at $11.3 million in FY 2011, reflecting the elimination of $41.5 million in funding that overlapped detention center construction in the Department of Justice (DOJ) budget. Rather than duplicate efforts among Federal agencies, the President's Budget incorporates a collaborative approach that aligns new construction under DOJ and operation and maintenance under Indian Affairs in terms of resources and responsibility. To ensure the activities of both Federal agencies produce the maximum possible benefit to Tribes on a nationwide basis, Indian Affairs is committed to close coordination and information sharing with DOJ. Also considered in determining the FY 2012 level for Public Safety and Justice Construction funding was the substantial investment of $232.3 million in Indian Country from DOJ and IA Recovery Act appropriations to construct or repair 24 detention centers. (IA-CON-PSJ-1/-2)

o Employee Housing – $3.5 million; a $5 million decrease from the FY 2010 level. The reduction "reflects elimination of the FY 2010 Congressional increase." (IA-CON-PSJ-2) The FY 2012 funds will be used for "repair, replacement, or construction of new quarters at existing detention centers or law enforcement facilities." It is anticipated that 12 new houses will be constructed under FY 2012 funding at: Turtle Mountain Detention Center, ND (2), Fort Totten Law Enforcement Center, ND (2), Uintah and Ouray Detention Center, NV (3), and Spokane Law Enforcement Center, WA (5).

o Facilities Improvement and Repair –$4.4 million. The $6.5 million decrease from the FY 2010 level reflects the detention facilities maintenance funds transferred to the OIP-Public Safety and Justice account. The budget justification notes the FI+R program "primarily focuses on improvements and repairs or renovation of IA-owned detention and law enforcement facilities to correct critical health and safety deficiencies." (IA-CON-PSJ-5)

Resources Management Construction

FY 2010 Enacted $38,385,000
FY 2012 Admin. Request $33,012,000

Resources Management funds are used for Irrigation Project Construction; Engineering and Supervision; Survey and Design; Dam Projects; and Federal Power Compliance (FERC). The budget proposes a decrease of $9 million under the Navajo Indian Irrigation Project (NIIP) and notes that no funds for new construction have been requested and that future funding options will be reviewed by the NIIP Policy Team. A $3.8 million increase (for total funding of $23.7 million) is requested for the Safety of Dams line item to hire three additional positions at the Central Office level, and "for program management, emergency management, and expedited issues to address correcting high risk failure modes on dams versus correcting all deficiencies on one dam at a time." (IA-CON-RM-2)

Bill Language

• OST Reimbursement for Space Expansion. The proposed budget would continue bill language that allows the Office of the Special Trustee to reimburse its appropriate share of construction costs related to the expansion of space at the agency level necessitated by trust reform implementation. The bill language states:

Provided further, That this appropriation may be reimbursed from the Office of the Special Trustee for American Indians appropriation for the appropriate share of construction costs for space expansion needed in agency offices to meet trust reform implementation.

INDIAN LAND CONSOLIDATION PROGRAM

FY 2010 Enacted $3,000,000
FY 2012 Admin. Request –0–

The Administration does not seek any funds for the Indian Land Consolidation (ILC) program. ILC funds are used to purchase small ownership shares in allotted lands from interested sellers with title to the property being transferred to tribes. According to the budget justification, the elimination of funding and staffing is due to funds contained in the Cobell settlement. The budget justification states:

The FY 2012 budget request does not include funding for the Indian Land Consolidation Program due to passage of the Claims Resolution Act of 2010. The Act includes mandatory funding of $1.9 billion for land consolidation efforts. The land consolidation fund will continue to address the issue of highly fractionated Indian lands. (IA-ILC-2)

NON-BIA PROGRAMS
OFFICE OF SPECIAL TRUSTEE

FY 2010 Enacted $176,984,000
FY 2012 Admin. Request $152,319,000

The proposed budget includes $1.2 million for fixed costs, reflects a $24.7 million decrease for Office of Special Trustee funding (including reductions of $16 million for Office of Historical Trust Accounting; $4.5 million for completion of trust reform tasks and program savings; $2.1 million for elimination of Reengineering activities) and assumes $3.3 million in administrative savings.

Within the OST total are $2.2 million for Executive Direction and $150.1 million for Program Operations and Support. The OST budget justification states that "As trust reform projects near completion, personnel resources will be redistributed to ensure strategic placement of personnel according to agency goals and priorities. Some positions will be eliminated and/or redefined through this process." (p. OST – 5)

• Office of Historical Trust Accounting (OHTA) – $31.2 million; includes $27.2 million to support analysis of tribal claims, and $4 million to resolve ownership of residual balances related to special deposit accounts and distributions to tribes, individual Indians, and non-trust entities.

Bill Language

• Indian Probate Judges. As in FY 2011, the Administration proposes a new provision that deems Indian probate cases heard by an Indian probate judge as meeting the hearing requirements, and sets the pay level for Indian probate judge services. The proposed language states:

SEC. 112. In fiscal year 2012 and each fiscal year thereafter, for the purpose of adjudicating Indian probate cases in the Department of the Interior, the hearing requirements of chapter 10 of title 25, United States Code, are deemed satisfied by a proceeding conducted by an Indian probate judge, appointed by the Secretary without regard to the provisions of title 5, United States Code, governing the appointments in the competitive service, for such period of time as the Secretary determines necessary: Provided, That the basic pay of an Indian probate judge so appointed may be fixed by the Secretary without regard to the provisions of chapter 51, and subchapter III of chapter 53 of title 5, United States Code, governing the classification and pay of General Schedule employees, except that no such Indian probate judge may be paid at a level which exceeds the maximum rate payable for the highest grade of the General Schedule, including locality pay.

• Statute of Limitations. The proposed budget would continue language to extend the statute of limitations on filing tribal and individual Indian mismanagement claims. The provision reads:

Provided further, That notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected Tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.

• Other. The budget proposal would also continue the following provisions related to the trust programs—

o Authorize use of unobligated balances from prior appropriations acts for OST or BIA for trust management reform, other than activities related to historical accounting, which is limited to the appropriated amount. (Sec. 104)

o Pay private attorneys for the costs of legal representation for employees and former employees incurred in connection with Cobell v. Salazar. (Sec. 107)

NATIONAL PARK SERVICE

The FY 2012 budget request for several National Park Service (NPS) programs are as follows:

o Tribal historic preservation grants –$11 million, $3 million the FY 2010 level. These funds aide tribes in assuming the State Historic Preservation Office (SHPO) duties on tribal lands. The NPS estimates the FY 2012 funds would support seven additional TPOs and provide small increases for the 118 ongoing grants to existing THPOs.

o Native American Graves Protection and Repatriation Act grants –$1.75 million, which was funded at $2.3 million in FY 2010. Funds assist tribes and Native Hawaiian organizations document and work for repatriation of cultural items, and assist museums to achieve NAGPRA compliance.

Other Historic Preservation Programs. In order to "focus its available resources on managing national parks as well as other partnerships that support the mandates of the National Historic Preservation Act", the budget proposal would end the Save America's Treasures and Preserve America programs; funded at $25 million and $4.6 million, respectively, in FY 2010.

FISH AND WILDLIFE SERVICE

State and Tribal Wildlife Grants
FY 2010 Enacted $90,000,000
FY 2012 Admin. Request $95,000,000

These funds are used for the development of wildlife conservation plans and on-the-ground conservation projects to stabilize, restore, enhance, and protect species and their habitats. The FY 2012 budget proposes $8 million of the total for the tribal competitive grants program, which received $7 million in FY 2010.

OFFICE OF NAVAJO AND HOPI RELOCATION

FY 2010 Enacted $8,000,000
FY 2012 Admin. Request $9,570,000

Funds are used for activities related to the settlement of a northern Arizona land dispute between the two tribes.

INSTITUTE OF AMERICAN INDIAN AND ALASKA NATIVE
CULTURE AND ARTS DEVELOPMENT

FY 2010 Enacted $8,300,000
FY 2012 Admin. Request $9,225,000

Funds are used to support the operational costs of the Institute, a multi-tribal higher education center focused on the study, application, preservation and care of Indian arts and culture.

ENVIRONMENTAL PROTECTION AGENCY

FY 2010 Enacted $10,329,864,000
FY 2012 Admin. Request $ 8,973,000,000

The FY 2012 request is $1.3 billion less than FY 2010; funds will be focused on the following:

o Improving air quality and supporting action on greenhouse gas pollution
o Protecting America's Water
o Build strong state and tribal partnerships
o Strengthening enforcement and compliance
o Enhancing chemical safety
o Supporting health communities
o Maintaining a strong science foundation

Regarding tribal environmental needs, the EPA budget justification states:

$20 million is requested for the Tribal Multimedia Implementation grant program in order to help tribes move beyond building the capacity to plan, develop, and establish environmental protection programs under the [General Assistance] program to implementation. This is intended to advance negotiated environmental plans and activities on a cooperative basis between tribes and EPA, ensuring that tribal environmental priorities are adequately addressed. (p. iv)

There are a limited number of tribal-specific programs under the EPA but tribes are often eligible for the larger grant programs.

TRIBAL CAPACITY BUILDING

FY 2010 Enacted $12.1 million
FY 2012 Admin. Request $15.1 million

Under this program, EPA has worked to establish the internal infrastructure and organize its activities in order to meet its responsibility for protecting human health and the environment in Indian Country. The $2.9 million increase would primarily be used for 15 positions in anticipation of the increased oversight and technical assistance duties related to the proposed new multi-media program, and for the on-going tribal General Assistance Program (GAP). The same request was included in the FY 2011 proposed budget.

STATE AND TRIBAL ASSISTANCE GRANTS

FY 2010 Enacted $4,970,223,000
FY 2012 Admin. Request $3,860,430,000

There two categories of assistance under the State and Tribal Assistance Grants (STAG), e.g., Infrastructure Assistance Grants ($2.7 billion–compared to $3.7 billion in FY 2010), and Categorical Grants ($1.2 billion–compared to $1.1 billion in FY 2010). Funds are issued to help communities fulfill the requirements of various environmental protection laws, as well as to rehabilitate land, water, and air resources that have been harmed.

Infrastructure Assistance Grants

• Water Supply and Wastewater Infrastructure Grants for Alaska Rural and Native Villages
FY 2010 Enacted $13,000,000
FY 2012 Admin. Request $10,000,000

The Alaska Rural and Native Village Program, administered by the State of Alaska, provides infrastructure funding to Alaska Native Villages and rural Alaska communities that lack access to basic drinking water and sanitation infrastructure. In the budget justification, the Administration states the $3 million reduction is due the congressionally directed increase in FY 2010 not being carried forward.

• Brownfields Projects
FY 2010 Enacted $100,000,000
FY 2012 Admin. Request $ 99,041,000

• Safe Drinking Water Revolving Loan Fund
FY 2010 Enacted $1,387,000,000
FY 2012 Admin. Request $ 990,000,000

For grants to tribes, the Administration seeks to increase the tribal set-aside from 1.5 percent to up to 2 percent. (The Territories share would increase from 0.33 percent to 1.5 percent.) Grants under this program can go to tribes directly as well as to the Indian Health Service under cooperative agreements to fund tribal projects.

• Clean Water State Revolving Loan Fund
FY 2010 Enacted $2,100,000,000
FY 2012 Admin. Request $1,550,000,000

For grants to tribes, the Administration seeks to increase the tribal set-aside from 1.5 percent to up to 2 percent. (The Territories share would increase from 0.25 percent to 1.5 percent.) These funds will be used for building or improving sanitation facilities in Indian Country. The budget justification also states:

In FY 2012, EPA will request transfer authority between the Clean Water Indian Set-Aside Grant and Drinking Water Infrastructure Grants Tribal Set-Aside Programs to allow the flexibility to direct drinking water and wastewater funds to highest priority projects. (p. 868)

Categorical Grants

• Tribal General Assistance Program (GAP)
FY 2010 Enacted $62,875,000
FY 2012 Admin. Request $71,375,000

GAP provides general assistance grants to build capacity to administer environmental regulatory programs that may be authorized by EPA in Indian Country, and to provide technical assistance in the development of multimedia programs to address environmental issues on Indian lands. The GAP grants cover the costs of planning, developing, and establishing environmental protection programs consistent with other applicable provisions of law providing for enforcement of such laws by Indian tribes on Indian lands. The budget justification states:

In FY 2012, GAP grants will assist tribal governments in building environmental capacity to assess environmental conditions, utilize available federal and other information, and build environmental programs tailored to their needs. As part of EPA's tribal investment, EPA is requesting an additional $8.5 million for GAP to increase the base funding tribes are able to receive to address a wider set of program responsibilities and decrease staff turnover rates, and also to fund targeted initiatives aimed at national and regional concerns. GAP funds are a key means by which tribes leverage other EPA and federal funding to contribute towards a higher overall level of environmental and human health protection per dollar invested. Many tribes have expressed the need to start implementing high priority environmental programs, and by increasing GAP grant funding, tribes will develop stronger, more sustainable environmental programs, allowing more tribes to advance to program implementation under the new Multi-Media Tribal Implementation Program proposed in this budget. These GAP grants also will be used to develop environmental education and outreach programs, develop and implement integrated solid waste management plans, and alert EPA to serious conditions that pose immediate public health and ecological threats. (p. 935-936)

• Multi-Media Tribal Implementation Program
FY 2011 Admin. Request $30,000,000
FY 2012 Admin. Request $20,000,000

In an effort to "help tribes move beyond capacity building to implementation", the Administration requests $20 million to fund a new multi-media tribal implementation program. The budget justification states:

EPA is requesting $20 million to support a multi-media implementation grant program (MMTI), which will assist federally recognized tribal governments in implementing environmental programs, going beyond establishing an environmental presence. In FY 2012, MMTI assistance agreements will fund the implementation of tribal programs with approved plans and/or tribal laws/codes aimed at addressing the most critical tribal environmental priorities and related to EPA’s mission – to protect both human health and the environment. (p. 901)

The proposed bill language states:

$20 million shall be for grants to federally recognized Indian tribes for implementation of environmental programs and projects as defined by the Administrator that complement existing Tribal environmental program grants, including interagency agreements. (p. 902)

• Tribal Air Quality Management
FY 2010 Enacted $13,300,000
FY 2012 Admin. Request $13,566,000

This program includes funding for tribal air pollution control agencies and tribal governments. Through Clean Air Act (CAA) section 105 Grants, tribes may develop and implement programs for the prevention and control of air pollution or implementation of national primary and secondary ambient air standards. Through CAA Section 103 grants, tribal air pollution control agencies or tribes, colleges, universities, or multi-tribe jurisdictional air pollution control agencies and/or non-profit organizations may conduct and promote research, investigations, experiments, demonstrations, surveys, studies and training related to air pollution.

• Brownfields Grants
FY 2010 Enacted $49,495,000
FY 2012 Admin. Request $49,495,000

• Section 319 Non-Point Source Pollution Grants
FY 2010 Enacted $200,857,000
FY 2012 Admin. Request $164,757,000

Grants under Section 319 of the Clean Water Act are provided to states, territories, and tribes to help them implement their EPA-approved non-point source management programs by remediating non-point source pollution that has occurred and by preventing or minimizing new non-point source pollution.

• Wetland Program Development Grants
FY 2010 Enacted $16,830,000
FY 2012 Admin. Request $15,167,000

The Wetland Program Development Grants enable EPA to provide technical and financial support to assist states, tribes, and local governments toward the national goal of an overall increase in the nation's wetlands. Grants are used to develop new or refine existing state and tribal wetland protection, management, and restoration programs as well as to implement programs where environmental results can be demonstrated.

BROWNFIELDS

FY 2010 Enacted $24,152,000
FY 2012 Admin. Request $26,397,000

This program, under the EPA's Environmental and Program Management program, differs from the Brownfields programs listed above. It is designed to help states, tribes, local communities and other stakeholders in economic redevelopment to work together to assess, safely clean up, and reuse Brownfields. The other programs provide funding for cleanup purposes alone. However the programs work in conjunction with one another.

RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) WASTE MANAGEMENT

FY 2010 Enacted $68,800,000
FY 2012 Admin. Request $66,854,000

The RCRA Waste Management program is designed to reduce the amount of waste generated and to improve the recovery and conservation of materials by focusing on a hierarchy of waste management options that advocate reduction, reuse, and recycling over treatment and disposal. In FY 2010, the program had a tribal component, which was aimed at providing technical assistance to tribe. Citing funding constraints, the EPA proposes to "not offer Tribal grants for integrated solid waste management planning" under the FY 2012 budget.

LEAKING UNDERGROUND STORAGE TANKS (LUST/UST)

• Environmental and Program Management Fund
FY 2010 Enacted $11,613,000
FY 2012 Admin. Request $11,982,000

• State and Tribal Assistance Grants
FY 2010 Enacted $2,500,000
FY 2012 Admin. Request $1,550,000

This program is designed to prevent, detect, and repair leaks from underground storage tanks including those containing fuel or oil. The Environmental and Program Management funds primarily go to states to help with enforcement, though the EPA is working with tribes and tribal consortia to build and implement their own LUST programs. The State and Tribal Assistance Grants for LUST are used mainly to assist tank owners in ensuring their tanks do not leak and to detect leaks.

Please let us know if we may be of further assistance regarding the FY 2012 budget request for programs in the Indian Affairs or other programs covered in this Memorandum.

# # #

Inquiries may be directed to
Marie Osceola-Branch (mosceola-branch@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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