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Hobbs Straus attorneys successfully obtained the first Interior Board of Contract Appeals ruling entitling a tribal school to 100% of administrative cost grant funding in Alamo Navajo School Board and Miccosukee Corporation v. BIA, IBCA 3463-3466, IBCA 3560-3562 (Dec. 4, 1997).

GENERAL MEMORANDUM 13-074

GENERAL MEMORANDUM 13-074
Proposed Rule for Leases and Fundraising at Bureau of Indian Education-Operated Schools

In the attached Dear Tribal Leader letter dated July 23, 2013, the Assistant Secretary-Indian Affairs invites public comments on the draft regulations governing the leasing of school land and facilities operated by the Bureau of Indian Education (BIE) as well as fundraising by employees of BIE-operated schools1 for the benefit of the school. The proposed regulations are applicable only to the 59 schools and two post-secondary schools operated by the BIE, but the opportunity to submit comments is also open to tribes in recognition of the fact that tribal members and their children may attend such schools. The draft regulations are at: http://www.bia.gov/cs/groups/public/documents/text/idc1-022712.pdf. The deadline for submitting comments is September 1, 2013.

The authority for developing the regulations was included the FY 2012 Interior Appropriations Act (PL 112-74), which states in part:

SEC. 115. (a)(1) Notwithstanding any other provision of law or Federal regulation, including section 586(c) of title 40, United States Code, the Director of the BIE, or the Director's designee, is authorized to enter into agreements with public and private persons and entities that provide for such persons and entities to rent or lease the land or facilities of a Bureau-operated school for such periods of time as the school is Bureau operated, in exchange for a consideration (in the form of funds) that benefits the school, as determined by the head of the school. …

  (c) The Secretary of the Interior shall promulgate regulations to carry out this section not later than 16 months after the date of the enactment of this Act. Such regulations shall include–

    (1) standards for the appropriate use of Bureau-operated school lands and facilities by third parties under a rental or lease agreement;

    (2) provisions for the establishment and administration of mechanisms for the acceptance of consideration for the use and benefit of a school in accordance with this section (including, in appropriate cases, the establishment and administration of trust funds); …

The proposed regulations cover the following areas:

  • Subpart A—General Provisions: addresses the purpose, scope and terms of this part (Part 48-Leases Covering Bureau-Operated Schools and Fundraising Activities at Bureau-Operated Schools)
  • Subpart B—Leasing Bureau-operated Schools: identifies the official who may enter into the lease, the entities eligible to lease a school facility, what school facilities may be leased, compensation, authorized uses for and length of availability of funds
  • Subpart C—Standards for Leases and Ethical Conduct: includes standards for determining entering into a lease, lease instrument format and provisions, payment processes, monitoring use of funds, and applicable accounting standards
  • Subpart D—Fundraising Activities: identifies persons authorized to fundraise on behalf of the school and the limitations applicable to them; sets forth policies regarding fundraising, use of funds, and solicitation of donations

Instructions for submitting comments on the draft regulations are included in the Dear Tribal Leader letter. Comments on the consultation process employed for this consultation may also be submitted, per the instructions within the attached letter.

If we may be of further assistance regarding the draft rule on leases and fundraising at BIE-operated schools, please contact us at the information below.

1 The draft regulations define "Bureau-operated school" to mean a day school, boarding school, or a dormitory for students attending a school other than a BIE school, an institution of higher learning and associated facilities operated by the BIE. The term does not include Public Law 100-297 tribally controlled schools, Public Law 93-638 contract or grant schools, or public schools.

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Inquiries may be directed to:
F. Michael Willis (mwillis@hobbsstraus.com)
William Norman (wnorman@hobbsstraus.com)

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


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