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Hobbs Straus lawyers assisted in the negotiation and completion of $35 million revolving credit note from a financial institution for a tribe and subsequent negotiation and completion of the re-financing of the revolving credit loan.

General Memorandum 14-062

General Memorandum 14-062
House and Senate Appropriations Committee Recommendations for FY 2015 Indian Affairs Funding

On August 1, 2014, the Chairman and Ranking Member of the Senate Appropriations Subcommittee on Interior, Environment and Related Agencies – Chairman Reed (D-RI) and Ranking Member Murkowski (R-AK) released a draft of their Subcommittee's FY 2015 appropriations bill and report. In this Memorandum we compare the Indian Affairs (includes Bureau of Indian Affairs (BIA) and Bureau of Indian Education (BIE)) portion of that draft bill and report to the version approved by the House Appropriations Committee on July 15, 2014. It is unlikely that either bill will progress any further through the legislative process (i.e., to a Senate Committee markup or to the House floor) but they are important as a reflection of each House's position in upcoming negotiations on an omnibus appropriations bill. At this point it looks likely that most, if not all, federal agencies' FY 2015 activities will be funded by a Continuing Resolution (CR) until after the November elections with a longer term bill being finalized during a lame duck session of Congress. Should the elections result in a Republican majority in the Senate, a CR might run into next year, enabling a new Congress to enact the final FY 2015 appropriations bill(s).

The House bill and Report (HR 5171; H. Rept. 113-551) are the product of an Appropriations subcommittee and full committee markup. The Senate bill and report, on the other hand, are draft documents released by the Senate Interior Appropriations Subcommittee Chair and Ranking Member and did not go through a markup process. Hence there is no bill or report number for the Senate bill and report.

INDIAN AFFAIRS (IA) OVERVIEW

The House Committee recommends an FY 2015 funding level of $2.6 billion for Indian Affairs, which is $113 million above the FY 2014 enacted level and $80 million above the Administration's FY 2015 request. The Senate Subcommittee recommends a FY 2015 funding level of $2.5 billion, which is $28 million above the FY 2014 enacted level but $5 million less than the Administration's FY 2015 request. Both House and Senate propose what is estimated to be full funding for Contract Support Costs ($246 million). The House differs significantly from the Senate on two Indian education priorities: the House provides what is estimated to be full funding for Tribal Grant Support Costs ($72 million) as well as $58.6 million to fully fund the construction of the final three schools on the BIE's 2004 School Replacement Priority List.

During the House markup both Republicans and Democrats voiced strong support for the tribal provisions in the bill. We do note, however, that a reason that the House Committee was able to recommend more funding than did the Senate is that the House bill would reduce the Environmental Protection Agency budget by nine percent, thus freeing up funds for other agencies. The Senate bill does not agree to this proposed dramatic reduction in the EPA budget.

Fixed Costs. As requested by the Administration, the bills would provide $9.6 million in Fixed Cost increases – largely attributed to the one percent pay raise for FY 2015 proposed in OMB Circular A-11.

Contract Support Costs (CSC). Neither bill would place a cap on CSC spending, but the accompanying Committee Reports recommend $246 million for BIA, the same amount requested by the Administration and estimated to fully fund CSC. The House Report states that should this amount be insufficient, the BIA is to submit a reprogramming request.

The bills, as requested by the Administration, provide that no FY 2014 or FY 2015 CSC funds may be used by the IHS or the BIA to pay prior year contract support costs or to repay the Judgment Fund for judgments or settlements related to past-year CSC claims.

Finally, the bills, consistent with the Interior appropriations acts for FYs 1999-2014, attempt to limit the ability of the IHS and BIA to fund past-year shortfalls in CSC funding from remaining unobligated balances for those fiscal years. This provision has been included in the appropriations acts for many years and has not precluded recovery on past-year CSC claims.

Please see the Contract Support Costs section elsewhere in this Memorandum for the text of the CSC Committee Report and bill language.

Indian Reorganization Act – Carcieri Fix. The Administration continues to request language which would reverse the U.S. Supreme Court's 2009 decision that the Secretary of the Interior does not have authority to take land into trust for tribes recognized after 1934. The language that the Administration requests is the same as that which was requested, but not enacted, in FYs 2011, 2012, 2013 and 2014. Neither House Committee nor Senate Subcommittee included this requested language.

Federal Recognition. The House Report states:
The Committee understands the Administration's desire to improve the Federal tribal recognition process, including the long delay from the date of filing of the petition to the actual decision. The Committee encourages the Secretary to carefully consider the input of all stakeholders in the development of the final rule. (H. Rept. 113-551, p. 47)

Tiwahe (Family)Initiative. The Administration, in response to the high rates of poverty, substance abuse, suicide, and violent crime in Indian Country (which put children at risk) proposes a comprehensive and integrated approach to address these often interrelated problems. The Administration requests $11.5 million for the Tiwahe (Lakota for "family") Initiative which would broaden the focus to the family unit by: increasing the number of social workers dedicated to child protection; expanding job training opportunities; creating a pilot program to provide alternatives to incarceration and increased treatment opportunities; and expanding the qualification for housing services to alleviate overcrowding. Both the House Committee and the Senate Subcommittee concur with the Administration's request for a $10 million increase above the FY 2014 enacted level to the Human Services Activity within the BIA budget and a $696,000 increase to the Job Placement and Training Subactivity within the BIA's Community and Economic Development Activity. The Senate Subcommittee was specific regarding the inclusion of the requested funding for the Initiative. That report language is quoted in this Memorandum under the Activity to which it applies.

Coordination and Streamlining of Energy Development Activities. The House Report states:
The Committee directs the Secretary [of Interior] to streamline and better coordinate all Departmental activities relating to Indian energy development, and to extend the coordination with other Federal agencies where feasible. As part of this effort, the Secretary should evaluate whether fees collected by the [Bureau of Land Management] BLM from applications for permits to drill on Indian lands are fairly invested in staff dedicated to processing Indian energy permits, or whether funds are redirected elsewhere. A mechanism is needed to streamline the Federal permitting process and minimize the time required to obtain the necessary approvals across the many Federal agency jurisdictions. The Secretary is encouraged to submit with the fiscal year 2016 budget request a proposal to transfer funds as necessary to create an Indian energy permitting and oversight office geographically located close to the center of current demand for energy development on Indian lands. Memoranda of understanding are encouraged if necessary to co-locate Department of Agriculture, Army Corps of Engineers, and Environmental Protection Agency personnel where practicable. The Secretary is encouraged to further pursue industry-funded employment agreements to increase permitting capacity on Indian lands, as recommended by the Office of Inspector General in June, 2014, and to carefully construct these agreements to avoid conflict-of-interest issues and minimize risks to the Federal Government. (H. Rept. 113-551, p.46-47)

Indian Arts and Crafts Board Transfer. Consistent with past budget requests, the Administration continues to propose the transfer of the Indian Arts and Crafts Board from the Office of the Secretary to the Operation of Indian Programs budget. The House Committee concurs with this proposal, while the Senate Subcommittee does not.

OPERATION OF INDIAN PROGRAMS

FY 2014 Enacted $2,378,763,000
FY 2015 Admin. Request $2,412,596,000
FY 2015 House Committee $2,434,202,000
FY 2015 Senate Subcommittee $2,407,254,000

Operation of Indian Programs (OIP) budget includes the Bureau of Indian Affairs (BIA) and the Bureau of Indian Education (BIE).

BUREAU OF INDIAN AFFAIRS

FY 2014 Enacted $1,590,009,000
FY 2015 Admin. Request $1,618,207,000
FY 2015 House Committee $1,611,974,000
FY 2015 Senate Subcommittee $1,613,865,000

Activities within the Bureau of Indian Affairs are: Tribal Government; Human Services; Trust-Natural Resources Management; Trust-Real Estate Services; Public Safety and Justice; Community and Economic Development; and Executive Direction and Administrative Services. The Senate Subcommittee recommends $4.3 million less than the Administration request. The House Subcommittee recommends $6.2 million less than the Administration request.

TRIBAL GOVERNMENT

FY 2014 Enacted $535,082,000
FY 2015 Admin. Request $545,679,000
FY 2015 House Committee $547,679,000
FY 2015 Senate Subcommittee $545,679,000

The Tribal Government subactivities are: 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 attached p. 160-161 of H. Rept. 113-551 and p. 93-94 of the Senate Draft Report.

Contract Support Costs Estimated to Be Fully Funded. This category covers both the Contract Support and Indian Self-Determination Fund subactivities. The FY 2014 enacted level for these subactivites combined was $247 million ($242 million for Contract Support and $5 million for the Indian Self-Determination Fund). The Administration's FY 2015 request, estimated to fully fund Contract Support Costs for FY 2015, requests $251 million ($246 for Contract Support and $5 million for the Indian Self-Determination Fund.) For FY 2015, the House Committee and Senate Subcommittee concur with the Administration's request. Neither bill contains a cap on CSC spending, but the accompanying House and Senate Committee Reports recommend $617,205,000 for IHS and $246,000,000 for BIA, the amounts requested by the Administration. The House Report states that should those amounts be insufficient, the agencies are to submit a reprogramming request. The House Report language reads as follows:
The Committee recommendation includes $246,000,000 as requested for full funding of estimated contract support costs. The Committee expects Indian Affairs to submit a reprogramming request to the Committee if the final calculated contract support costs exceed this amount in order to ensure that contract support costs are fully paid. The Committee recognizes that inconsistencies exist between the Bureaus and the Indian Health Service in the ways that contract support costs are estimated and managed, and encourages both the agencies and the Tribes to recommend ways that the Committee can be helpful in promoting consistency. Tribes that exercise their self-determination rights and enter into contracts with multiple Federal agencies shouldn't have to navigate inconsistent rules across different agencies. (H. Rept. 113-551, p. 43-44)

Both bills, as requested by the Administration, provide that no FY 2014 or FY 2015 CSC funds may be used by the IHS or the BIA to pay prior year CSC or to repay the Judgment Fund for payment of judgments or settlements related to past-year CSC claims. For contract support costs, fiscal year 2015, the bills provide (Section 406 regarding FY 2014 is comparable):
Sec. 407. Amounts provided by this Act for fiscal year 2015 under the headings "Department of Health and Human Services, Indian Health Service, Indian Health Services" and "Department of the Interior, Bureau of Indian Affairs and Bureau of Indian Education, Operation of Indian Programs" are the only amounts available for contract support costs arising out of self-determination or self-governance contracts, grants, compacts, or annual funding agreements for fiscal year 2015 with the Bureau of Indian Affairs or the Indian Health Service: Provided, That such amounts provided by this Act are not available for payment of claims for contract support costs for prior years, or for repayments for settlements or judgments awarding contract support costs for prior years.

Both bills, consistent with the Interior appropriations acts for FYs 1999-2014, attempt to limit the ability of the IHS and BIA to fund past-year shortfalls in CSC funding from remaining unobligated balances for those fiscal years. This provision has been included in the appropriations acts for many years and has not precluded recovery on past-year CSC claims.
Sec. 405. 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 Law 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, 112-10, 112-74 and 113-6 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 2013 for such purposes, except that for 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.

New Tribes. The Senate Report states:
The recommendation supports the requested amount of $463,000 for new tribes and notes the challenge of reconciling the timing of the tribal recognition process with the annual budget formulation process. If additional tribes are recognized during fiscal year 2015 beyond those contemplated in the budget request, the Bureau is urged to support their capacity building efforts to the extent feasible. (Senate Draft Report, p. 26)

$2 Million Increase Recommended for Road Maintenance/School Bus Route Inventory Requested. The House Report states:
The Committee recommends $26,461,000 for road maintenance, $2,158,000 above the fiscal year 2014 operating plan and $2,000,000 above the budget request. The Committee recognizes that too many roads on Indian reservations are in poor condition and are a significant safety concern. Moreover, poor road conditions have a direct negative impact on school children. The amount above the budget request is intended to address the most urgent safety concerns, including the roads used as school bus routes. The Committee urges Tribes to work with the Bureau of Indian Affairs to inventory all school bus route roads in the reservation system, and to submit such inventory annually with the Bureau's budget request so that the Committee can begin to more comprehensively address this problem. (H. Rept. 113-551, p. 44)

HUMAN SERVICES

FY 2014 Enacted $132,778,000
FY 2015 Admin. Request $142,634,000
FY 2015 House Committee $142,634,000
FY 2015 Senate Subcommittee $142,634,000

The Human Services subactivities are: Social Services; Welfare Assistance; Indian Child Welfare Act (ICWA); Housing Improvement Program (HIP); Human Services Tribal Design; and Human Services Program Oversight. For budget details by program, see attached p. 161 of H. Rept. 113-551 and p. 94 of the Senate Draft Report.
Tiwahe Initiative. The Senate Report states:
The bill includes $142,634,000 for human services programs. The recommendation fully funds the requested $10,000,000 increase above the fiscal year 2014 level for the Tiwahe initiative to strengthen tribal communities and protect children in Indian country. (Senate Draft Report, p. 26-27)

Housing Improvement Program (HIP). In FY 2014 the Administration had requested the elimination of the HIP on the basis that it serves the same population as those helped through the Native American Housing Block Grant program which is operated by the Department of Housing and Urban Development. However, Congress funded it anyway, albeit at a lower level. For FY 2015 the Administration requests the same amount as the FY 2014 Enacted level ($8 million) while the House Committee and the Senate Subcommittee recommend a nominal ($9,000) increase above this request.

TRUST–NATURAL RESOURCES MANAGEMENT

FY 2014 Enacted $184,295,000
FY 2015 Admin. Request $184,012,000
FY 2015 House Committee $180,352,000
FY 2015 Senate Subcommittee $183,012,000

The Trust–Natural Resources Management subactivities are: Natural Resources; 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 attached p. 161-162 of H. Rept. 113-551 and p. 94 of the Senate Draft Report.

$3.9 Million Reduction Recommended for Cooperative Landscape Conservation. The House Report states:
The Committee recommends $180,352,000 for natural resources management programs that help the Federal government meet its trust responsibilities, $3,943,000 below the fiscal year 2014 operating plan and $3,660,000 below the budget request. Cooperative landscape conservation is funded at $5,948,000, which is $3,999,000 below the fiscal year 2014 operating plan. In the Committee's opinion, the Bureau took advantage of its unique budget flexibility in fiscal year 2014 by increasing this program from $947,000 to $9,947,000. (H. Rept. 113-551, p. 44)

$1.8 Million Increase Recommended for Forestry. The House Report states:
Forestry is funded at $47,735,000, equal to the fiscal year 2014 operating plan and $1,840,000 above the budget request, in recognition of the importance of tribal forestry management in the larger national effort to minimize major wildland fires through sustainable forestry and hazardous fuels reduction.
(H. Rept. 113-551, p. 44)

$ 1 Million Decrease Recommended for Rights Protection Implementation. The Senate Report states:
The recommendation includes $183,012,000 for trust and natural resources programs. Within that amount, $35,420,000 is provided for rights protection implementation programs, as requested. The recommendation includes a $1,000,000 increase in the integrated resource information program above the fiscal year 2014 enacted level, rather than the $2,000,000 increase proposed in the request. (Senate Draft Report, p.27)

TRUST–REAL ESTATE SERVICES

FY 2014 Enacted $126,758,000
FY 2015 Admin. Request $127,002,000
FY 2015 House Committee $127,002,000
FY 2015 Senate Subcommittee $127,002,000

The Trust–Real Estate Services subactivities are: 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-Real Estate Services Oversight.

Klamath Basin Restoration Agreement. The Senate Report states:
Consistent with the request, $127,002,000 is provided for trust-real estate services programs, including $7,000,000 to implement Klamath Basin Restoration Agreement activities. (Senate Draft Report, p. 27)

Litigation Support/Attorney Fees. This account falls under the Rights Protection Subactivity. It was not funded in FY 2013 but, consistent with the Administration's FY 2014 Budget request, it received $1.5 million in FY 2014. These funds provide support to tribes to protect their tribal trust resources or treaty rights in cases where the federal government cannot represent Indian interests for various reasons, including conflicts of interest. The Administration's FY 2015 Budget requests $1.5 million. Both the House Committee and Senate Subcommittee are silent, in terms of report language, bill language, or a funding chart in enough detail, on this this matter but they do recommend the same overall funding amount for the Trust–Real Estate Services Activity as the Administration requests.

PUBLIC SAFETY AND JUSTICE

FY 2014 Enacted $350,014,000
FY 2015 Admin. Request $351,850,000
FY 2015 House Committee $352,850,000
FY 2015 Senate Subcommittee $351,850,000

The Public Safety and Justice subactivities are: Law Enforcement; Tribal Courts; and Fire Protection. For budget details by program, see attached p. 162 of H. Rept. 113-551 and p. 95 of the Senate Draft Report.

$1 Million Recommended Increase for VAWA Implementation. The House Report states:
The Committee recommends $352,850,000 for public safety and justice, $2,836,000 above the fiscal year 2014 operating plan and $1,000,000 above the budget request. The amount above the budget request is to provide training in Indian country to carry out the new provisions in the Violence Against Women Reauthorization Act of 2013.
For the purpose of addressing the needs of American Indian youth in custody at tribal detention centers operated or administered by the BIA, the Committee considers educational and health-related services to juveniles in custody to be allowable costs for detention/corrections program funding.
(H. Rept. 113-551, p. 46)

Joint BIA-DOJ Report on Tribal Court Needs in PL-280 States Requested. The Senate Report states:
The bill includes $351,850,000 for public safety and justice programs, equal to the request. The Indian Law and Order Commission's November 2013 report notes that Federal investment in tribal justice for Public Law 83–280 States has been more limited than elsewhere in Indian country. Within 180 days of enactment of this act, the Bureau, in coordination with the Department of Justice, is directed to report to the House and Senate committees of jurisdiction on the budgetary needs of tribal courts in these States. The needs assessment should take into consideration possible joint support among tribes and villages for tribal court services when appropriate. (Senate Draft Report, p. 28)

COMMUNITY AND ECONOMIC DEVELOPMENT

FY 2014 Enacted $35,300,000
FY 2015 Admin. Request $35,996,000
FY 2015 House Committee $35,996,000
FY 2015 Senate Subcommittee $35,996,000

The Community and Economic Development subactivities are: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight.

Tiwahe Initiative. The Senate Report states:
The bill provides $35,996,000 for community and economic development programs equal to the request. The requested increase for job training programs to support the Tiwahe initiative is included. (Senate Draft Report, p.28)

EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES

FY 2014 Enacted $225,782,000
FY 2015 Admin. Request $229,755,000
FY 2015 House Committee $224,182,000
FY 2015 Senate Subcommittee $227,692,000

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

$2 Million Decrease in Administrative Services Recommended. The Senate Report states:
The bill includes $227,692,000 for executive direction and administrative services, a decrease of $2,063,000 below the budget request. The Bureau is directed to fund the requested program evaluations for education and social service programs within the amounts provided in this program. (Senate Draft Report, p. 28)

BUREAU OF INDIAN EDUCATION

FY 2014 Enacted $788,754,000
FY 2015 Admin. Request $794,389,000
FY 2015 House Committee $822,228,000
FY 2015 Senate Subcommittee $793,389,000

The Bureau of Indian Education (BIE) category displays funds for the BIE-funded elementary and secondary school systems as well as other education programs including higher education and scholarships. The Bureau of Indian Education 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 Administration's proposed budget would provide a net $5.6 million increase above the FY 2014 level, particularly, a $500,000 increase for Johnson O'Malley Assistance Grants; a $300,000 increase for Tribal Technical Colleges, a $250,000 increase for Special Higher Education Scholarships, and a $1.7 million increase for the Science Post Graduate Scholarship Fund. The Senate Subcommittee recommends $1 million less than the Administration request while the House Committee recommends $27.8 million more than the request—largely to ensure that Tribal Grant Support Costs are fully funded. Both House and Senate devote a significant portion of the total Indian Affairs bill and report language to the topic of education and efforts to reform the BIE.

The House Report states:
The Committee recommends $822,228,000 for Bureau of Indian Education system operations and maintenance, $33,474,000 above the fiscal year 2014 operations plan and $27,839,000 above the budget request. Indian Education remains among the Committee's top priorities because it is a fundamental trust responsibility and because the elementary and secondary students in particular have fallen far behind their peers for reasons now well documented by the Government Accountability Office, the Department of Education, and others. Changes to the budget request and further instructions follow.
(H. Rept. 113-551, p. 44)
The Senate Report states:
The bill includes $793,389,000 for educational programs, a reduction of $1,000,000 below the request. Within that amount, a total of $1,450,000 is provided to fund requested post-graduate scientific scholarships. This amount is $1,000,000 less than the budget request but $700,000 more than the fiscal year 2014 enacted level. (Senate Draft Report p. 27)

American Indian Education Study Group's Efforts to Redesign the BIE and Restructure the BIE Budget.
The Administration's Budget Justification states:
BIE completed an in-depth review of its operations with the goal of improving the delivery of quality educational opportunities that improve student achievement, while simultaneously reducing administrative costs through the elimination of inefficient practices. BIE developed a plan that aligned with the outcomes of the in-depth review. Further development of this plan will reflect recommendations made by the American Indian Education Study Group convened by Secretary Jewell and Secretary of Education Arne Duncan after those recommendations have undergone tribal consultation. (IA-BIE-28)
The House Report states:
The Committee recommends $12,592,000 for the education program enhancements budget line item, $502,000 above the fiscal year 2014 operating plan and $473,000 above the budget request. The Committee recommends $2,000,000 from within funds for matching competitive grants to tribally controlled schools that voluntarily choose to implement reforms recommended by the joint Department of the Interior—Department of Education American Indian Education Study Group. (H. Rept. 113-551, p. 44)
The Committee remains concerned that control of BIE's budget, procurement, hiring, and facilities maintenance and construction reside not within BIE but within the Bureau of Indian Affairs and the Deputy Assistant Secretary-Management (see Government Accountability Office report GAO–13–774). For the fiscal year 2016 budget, the Committee will consider a new budget structure so that the BIE can manage all funds appropriated for the BIE school system. The Committee believes this change is necessary for leadership stability and accountability within the BIE. The Committee encourages the Secretary to submit a fiscal year 2016 budget proposing these changes after consulting with Tribes and tribal organizations. (H. Rept. 113-551, p. 46)
The Senate Report states:
The administration is commended for its continued focus on tribal education programs, including efforts to improve collaboration between the Departments of the Interior and Education and to implement Executive Order 13592 to improve educational outcomes for American Indian and Alaska Native students. It is noted that the administration is proposing significant reforms to the Bureau of Indian Education [BIE] to improve the quality of education offered and address the persistent performance gap of students educated at BIE-funded schools. These proposed changes will require a restructuring of the Bureau that is not currently reflected in the fiscal year 2015 budget request and will necessitate continued consultation with tribes, as well as the Committees on Appropriations and the authorizing committees of jurisdiction. It is also important that both Departments work to align and better leverage funding sources for tribal education, including expanding access to new sources of funds to support educational programs and school improvements.
In order to be successful, the Administration's emphasis on education must be complemented by efforts to improve interagency coordination for the multiplicity of programs that affect the well-being of Native children. In addition to education, these include healthcare, social service, child welfare and juvenile justice programs. It is recommended that the Bureau, working in concert with other affected Federal agencies, examine ways to support such a cross-cutting coordination effort, including the establishment of a commission on Native children. (Senate Draft Report, p. 27)

Tribal Education Department Grants. The House Report states:
The Committee recommends $2,000,000 for competitive grants to Tribal Education Departments as authorized by section 1042 of the No Child Left Behind Act of 2001 (25 U.S.C. 2020). (H. Rept. 113-551, p. 45)

Common Core Implementation. The House Report states:
The Committee notes with concern the BIE's implementation of Common Core assessments in light of shortfalls in IT technology at most schools. The BIE is directed to include in its fiscal year 2016 budget request an estimate of the IT readiness at each of the 183 schools in the BIE system. (H. Rept. 113-551, p. 45)

Early Child and Family Development.
The House Report states:
The Committee recommends $15,520,000 for early child and family development, $69,000 above the fiscal year 2014 operating plan and equal to the budget request. The Committee strongly supports early childhood development models that address the achievement gap of Indian children primarily located on rural reservations by teaching preschool Indian children the skills they need to begin school and offering developmental opportunities for parents. The BIE is directed to publish its report on the 2013–14 school year internal review of early childhood education programs in order to improve program direction and transparency. (H. Rept. 113-551, p. 45)
The Senate Report states:
The Bureau shall report to the Committees on Appropriations regarding the establishment of new early childhood development pilot programs in fiscal year 2015, as proposed in the request. Any new pilot projects shall not reduce funding for currently operating Family and Child Education programs. (Senate Draft Report, p. 27)

Early Childhood Caries.
The House Report states:
Early childhood caries (i.e. cavities) is an epidemic in Indian country and among other things it impacts the ability of children to concentrate and learn. The Committee received testimony again this year about an initiative to increase preventive dental care for children by bringing dentists and hygienists into elementary schools. The Committee recommendation includes $500,000 in the Indian Health Service budget to begin the initiative and directs the BIE to work with the Service and to consult with Tribes about piloting the initiative in the BIE school system. (H. Rept. 113-551, p. 45)
The Senate Report states:
The Bureau, working with the Indian Health Service as appropriate, is also urged to consider integrating school-based preventative health services such as dental care into elementary schools in order to improve health outcomes of tribal students. (Senate Draft Report, p. 27-28)

Language Immersion. The House Report states:
The Committee is supportive of standards and curricula that emphasize tribal history, language and culture. As alternative proposals are considered, language immersion should be carefully considered as a serious option for improved language development and student outcomes. (H. Rept. 113-551, p. 45)

Satellite Schools.
The House Report states:
The Committee includes new bill language providing the BIE Director with the authority to approve satellite schools of existing BIE schools if a tribe can demonstrate that the establishment of such satellite schools would provide comparable levels of education as are being offered at such existing BIE schools, and would not significantly increase costs to the Federal Government. The intent is to provide tribes with additional flexibilities as to where students are educated without compromising how they are educated and to significantly reduce the hardship and expense of transporting students over long distances, without unduly increasing costs that would otherwise unfairly come at the expense of other schools in the BIE system. (H. Rept. 113-551, p. 46)
The House Bill states:
Funds made available under this Act may not be used to establish a satellite school of an existing school in the Bureau of Indian Education school system, except that the Director of the Bureau may waive this prohibition upon request by a tribe if establishment of such satellite school would provide comparable levels of education as are being offered at such existing Bureau school, and would avoid incurring extraordinary costs to the Federal Government, such as for transportation over extended distances: Provided, That no funds made available under this Act may be used to fund any facilities-related costs for satellite school assets that are not owned by the Bureau: Provided further, That the term ''satellite school'' means a school location physically separated from the existing Bureau school by more than 50 miles but that forms part of the existing school in all other respects. (HR 5171, p. 38)

Restriction on Funding for Elementary or Secondary Schools in Alaska. As requested by the Administration, the bills would continue the restriction on funding for the establishment of elementary or secondary schools in Alaska.

Restriction on Funding for Expanded Grades. As requested by the Administration, the bills would continue the restriction on funding for the expansion of grades and schools within the BIE system; however, the House Committee's bill would remove the decision-making authority regarding waivers from the Secretary of the Interior (currently delegated to the Assistant Secretary-Indian Affairs) and would instead delegate it to the BIE Director.
The House Report explains the recommended change:
The Committee continues language limiting the expansion of grades and schools in the BIE system, including charter schools, but has revised the language to delegate waiver authority to the BIE Director instead of the Assistant Secretary. The intent of the language is to prevent already limited funds from being spread further to additional schools and grades. The intent is not to limit tribal flexibility at existing schools. Nothing in the bill is intended to prohibit a Tribe from converting a tribally-controlled school already in the BIE system to a charter school in accordance with State and Federal law.
(H. Rept. 113-551, p. 45-46)

Restriction on Funding for Charter Schools. As requested by the Administration, the bills would continue the restriction on funding for the establishment of charter schools.

Elementary and Secondary Programs (Forward Funded)
FY 2014 Enacted $518,318,000
FY 2015 Admin. Request $520,755,000
FY 2015 House Committee $546,994,000
FY 2015 Senate Subcommittee $520,755,000

The Elementary and Secondary forward funded programs include all components for operating an elementary and secondary school system. For schools operated by tribes through grants, the program also includes funding to cover the tribe's administrative costs. The forward-funded programs are: the ISEP Formula Funding, ISEP Program Adjustments, Education Program Enhancements, Student Transportation, Early Childhood Development, and Tribal Grant Support Costs (formerly titled Administrative Cost Grants.) Funds appropriated for FY 2015 for these programs will become available for obligation on July 1, 2015, for SY 2015-2016.

$23.8 Million Increase Recommended for Tribal Grant Support Costs. This budget item is similar to Contract Support Costs but has not been nearly as well funded in the past. Tribal Grants Support Costs (TGSC) provides administrative costs for tribes who elect to assume operation of their schools under contract or grant authorization. Tribes operating BIE-funded schools use these funds for the overhead costs of operating a school, meet legal requirements, and carry out support functions that would otherwise be provided by the BIE school system. Funding is distributed by formula. As of July 2013, tribal entities operate 126 of the 183 BIE-funded schools and dormitories under contract or grant. For FY 2015, the Administration requests $48 million for TGSC, the same amount which was far from sufficient in FY 2014. The Senate Subcommittee concurs with the overall spending level requested by the Administration for FY 2015 Elementary and Secondary Programs (Forward Funded) but does not detail allocations within that amount.

The House Committee; however, recommends $72 million for Tribal Grant Support Costs, an amount which is estimated to fully fund this budget item.

The House Report states:
The Committee recommends $72,019,000 to fully fund tribal grant support costs, $23,766,000 above the fiscal year 2014 operating plan and the budget request. The Committee recognizes that fully funding these costs is consistent with the policy of fully funding contract support costs, and is instrumental for encouraging tribal control of schools. (H. Rept. 113-551, p. 45)

Distribution Formula for Tribal Grant Support Costs. As requested by the Administration, the bills would continue the same language governing the distribution formula for these funds.

Elementary and Secondary Programs (Non-Forward Funded)
FY 2014 Enacted $118,402,000
FY 2015 Admin. Request $119,195,000
FY 2015 House Committee $119,195,000
FY 2015 Senate Subcommittee $119,195,000

The funds in this subactivity are not forward funded, that is they are available for the entire two-year period of authorization of the annual Operation of Indian Programs appropriation. The non-forward funded programs are: Facilities Operations, Facilities Maintenance and Johnson-O'Malley Assistance Grants. Funds for Facilities Operations and Facilities Maintenance are distributed by formula to schools in the BIE school system.
Johnson-O'Malley. In 2014 Congress directed the BIE, in coordination with the Department of Education, to biennially update its count of students eligible for the Johnson-O'Malley Program. The BIE intends to implement the updated 2014 Johnson-O'Malley student count in FY 2015.
The House Report states:
The Committee recommends $14,739,000 for the Johnson O'Malley program, $401,000 above the fiscal year 2014 operating plan and equal to the budget request. The BIE is directed, in coordination with the Department of Education including using existing Department methods if practicable, and in consultation with Tribes, to biennially update its count of students eligible for the Johnson-O'Malley Program, and to include a discussion of the application of the results in its annual budget request to Congress, beginning with the fiscal year 2016 request. (H. Rept. 113-551, p. 45)

Post Secondary Programs (Forward Funded)
FY 2014 Enacted $69,793,000
FY 2015 Admin. Request $69,793,000
FY 2015 House Committee $71,393,000
FY 2015 Senate Subcommittee $69,793,000
$1.6 Million Increase Recommended. The House, in Committee markup, approved a $1.6 million increase for tribal colleges.

Post Secondary Programs (Non-Forward Funded)
FY 2014 Enacted $61,887,000
FY 2015 Admin. Request $64,182,000
FY 2015 House Committee $64,182,000
FY 2015 Senate Subcommittee $63,182,000

The two post-secondary schools in the BIE's education system are Haskell Indian Nations University (Haskell) located in Lawrence, Kansas, and the Southwestern Indian Polytechnic Institute (SIPI) in Albuquerque, New Mexico. BIE also provides grants to two technical colleges: United Tribes Technical College (UTTC) and Navajo Technical University (NTU) and makes available a variety of higher education scholarships, fellowships, and loans to eligible Indian students.

$1 Million Decrease Recommended. The Senate Subcommittee differs from the Administration's request and the House's recommendation on the funding level for this account.

Education Management
FY 2014 Enacted $20,354,000
FY 2015 Admin. Request $20,464,000
FY 2015 House Committee $20,464,000
FY 2015 Senate Subcommittee $20,464,000

The Education Management subactivity consists of Education Program Management and Information Technology. The BIE manages a school system with 183 elementary and secondary schools and dormitories and two postsecondary institutions and administers grants and provides technical assistance to 28 TCUs and two tribal technical colleges.

INDIAN ARTS AND CRAFTS BOARD

As with past budget requests, the Administration continues to propose the transfer of the Indian Arts and Crafts Board (IACB) from the Office of the Secretary to the Operation of Indian Programs account. The House Committee concurs with this request. The Senate Subcommittee does not. Over the past several FYs the IACB has been funded in an amount of $1,279,000. For FY 2015, the Administration, the House Committee, and the Senate Subcommittee all concur on this amount but fail to concur on where the IACB should be housed.

CONSTRUCTION

FY 2014 Enacted $110,124,000
FY 2015 Admin. Request $109,908,000
FY 2015 House Committee $167,378,000
FY 2015 Senate Subcommittee $109,908,000

The Construction budget includes: Education Construction; Public Safety and Justice Construction; Resources Management Construction; and Other Program Construction/ General Administration. The Administration and the Senate Subcommittee concur on the overall funding level for Construction. The House Committee; however, recommends $57.4 million above this amount in order to complete the final three projects on the BIE's 2004 School Replacement Priority List.

Maintenance Shortfalls. The House Report states:
The Committee is concerned that requested funding falls short of calculated amounts to properly operate and maintain facilities as indicated by the Bureau's Facilities Maintenance Information System (FMIS), and that improperly funding maintenance now will lead to higher replacement costs in future years. The Committee directs the Bureau to submit with its annual budget request a table showing differences between amounts requested and amounts calculated by the FMIS, facilities condition index, estimates of outyear costs, and a justification of any requested funding shortfalls. (H. Rept. 113-551, p. 48)

EDUCATION CONSTRUCTION

FY 2014 Enacted $55,285,000
FY 2015 Admin. Request $55,533,000
FY 2015 House Committee $112,958,000
FY 2015 Senate Subcommittee $55,533,000

The Education Construction subactivities are: Replacement School Construction; Employee Housing Repair; and Facilities Improvement and Repair.

$57.4 Million Increase Recommended for Replacement School Construction. The Administration requests $3.2 million for Replacement School Construction (an increase of $2 million above FY 2014 Enacted level) the majority of which is for Phase I of the Beatrice Rafferty replacement school project; however, the Administration then requests a $2 million decrease for Facilities Improvement and Repair, leaving the Education Construction request essentially flat between FY 2014 and FY 2015. The Senate Subcommittee concurs with the Administration's overall request level for Education Construction but does not detail how the funds are to be spent within this total. The House Committee, however, recommends $57.4 million above the requested level in order to complete the final three projects on the BIE's 2004 School Replacement Priority List. The House Committee then directs the BIE to publish an updated priority list in time for FY 2016 budget formulation. Finally, the House Committee would also spare the Facilities Improvement and Repair account from the Administration's proposed $2 million cut.

The House Report states:
The Committee recommends $112,958,000 for education construction, $57,673,000 above the fiscal year 2014 enacted level and $57,425,000 above the budget request. Of the recommended amount, $58,622,000 is for replacement school construction, $3,823,000 is for employee housing repair, and $50,513,000 is for facilities improvement and repair, restoring the cut proposed in the budget request.
The amount for replacement school construction completes the last three projects on the 2004 priority list. The Committee directs the BIE to publish a new list in time for the fiscal year 2016 funding cycle. The BIE is urged to work with Tribes to develop and publish a maintenance and improvement plan for the full life cycle of each of the 183 schools in the BIE system and to budget accordingly.
The Committee notes the conditions of the Bug O Nay Ge Shig School of the Leech Lake Band of Ojibwe as an example of the significant safety and health hazards that have not received due attention by this Administration. The Committee urges the BIE to continue to work with the Leech Lake Band of Ojibwe and other Tribes to repair and replace their school facilities.
(H. Rept. 113-551, p. 47)

PUBLIC SAFETY & JUSTICE (PS&J) CONSTRUCTION

FY 2014 Enacted $11,306,000
FY 2015 Admin. Request $11,306,000
FY 2015 House Committee $11,306,000
FY 2015 Senate Subcommittee $11,306,000

The Public Safety & Justice Construction subactivities are: Facilities Replacement/New Construction; Employee Housing; Facilities Improvement and Repair; Fire Safety Coordination; Fire Protection.

Regional Detention Centers. The House Report states:
The Committee commends the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation for their initiative in addressing law enforcement needs by constructing a justice center to house their adult and juvenile detention and rehabilitation center, tribal courts, and police department. The Committee also commends the Bureau of Indian Affairs in its efforts to assist the Shoshone-Bannock Tribes in ensuring that the Center continues to operate effectively. Knowing that work must be done in consultation with Tribes, the Committee continues to encourage the Bureau to consider establishing regional detention centers at new or existing facilities, such as the Shoshone-Bannock Tribes' Justice Center, as it works to combat the crime problem in Indian Country.
(H. Rept. 113-551, p. 47-48)

Updated Inspector General Report. The House Report states:
The Committee urges the Office of Inspector General to update its 2004 report on Indian detention facilities. (H. Rept. 113-551, p. 48)

RESOURCES MANAGEMENT CONSTRUCTION

FY 2014 Enacted $32,759,000
FY 2015 Admin. Request $34,427,000
FY 2015 House Committee $34,427,000
FY 2015 Senate Subcommittee $34,427,000

The Resources Management Construction subactivities are: Irrigation Project Construction; Engineering and Supervision; Survey and Design; Federal Power and Compliance; and Dam Projects.

OTHER PROGRAM CONSTRUCTION/ GENERAL ADMINISTRATION

FY 2014 Enacted $10,774,000
FY 2015 Admin. Request $8,642,000
FY 2015 House Committee $8,642,000
FY 2015 Senate Subcommittee $8,642,000

The Other Program Construction subactivities are: Telecommunications Improvement and Repair; Facilities/Quarters Improvement and Repair; and Construction Program Management.

If we may provide additional information or assistance regarding FY 2015 Indian Affairs appropriations, please contact us at the information below.

# # #

Inquiries may be directed to:
Moriah O'Brien (mobrien@hobbsstraus.com)

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


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