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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 15-003

General Memorandum 15-003
FY 2015 Indian Affairs Funding

On December 16, 2014, President Obama signed HR 83 as PL 113-235, the Consolidated and Further Continuing Appropriations Act, 2015 (Act) providing FY 2015 funding for 11 of the 12 appropriations bills. The House approved the bill on December 11 by a vote of 219-206 followed by the Senate on December 13, by a vote of 56-40. This Memorandum is specific to Indian Affairs (which includes the Bureau of Indian Affairs (BIA) and Bureau of Indian Education (BIE)) appropriations which is included in Division F of the Act. All federal agencies had been funded under a Continuing Resolution (CR) at FY 2014 levels for the first two and half months of FY 2015.

For the Indian Affairs, the enactment of an appropriations bill that had been considered by Appropriations Committees rather than a flat funded CR resulted in the better outcome. It allowed, for instance, for increased appropriations for Contract Support Costs (which are not capped); Tribal Grant Support Costs; School Construction; and Road Maintenance that a straight CR would not have provided. Had Congress not approved HR 83, it is likely that Indian Affairs would have operated under a CR for the entire fiscal year. We note that Interior has not yet provided its detailed funding chart for FY 2015 which will provide additional information.

The Managers' Explanatory Statement and the Act are printed in the December 11, 2014, CONGRESSIONAL RECORD (Parts I and II). The Explanatory Statement notes that the House Report language is to be complied with unless specifically contradicted. The Senate Interior Appropriations Chair and Ranking Member released a draft bill and report, but they were not considered in Committee and thus the Explanatory Statement does not reference them. The Managers' Explanatory Statement instructs:

Language contained in House Report 113-551 providing specific guidance to agencies regarding the administration of appropriated funds and any corresponding reporting requirements carries the same emphasis as the language included in this explanatory statement and should be complied with unless specifically addressed to the contrary herein.

INDIAN AFFAIRS (IA) OVERVIEW

The Act provides an FY 2015 funding level of $2.6 billion for Indian Affairs, which is $70 million above the FY 2014 enacted level and $36.6 million above the Administration's FY 2015 request. The Act provides what is estimated to be full funding for Contract Support Costs ($246 million) and there is a significant increase above the Administration's requested level for two Indian education priorities: Tribal Grant Support Costs and School Construction.

Fixed Costs. The Act, as requested by the Administration, 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). The Act does not place a cap on CSC spending, but the accompanying Managers' Explanatory Statement provides $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 Act, as requested by the Administration, provides 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 Act, 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 Not Included. 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)
Joint BIA-DOJ Report on Tribal Court Needs in PL-280 States Required. The Managers' Explanatory Statement requires, within 180 days of the Act's enactment, a report on the budgetary needs of tribal courts in PL 280 states. Please see the Public Safety and Justice section elsewhere in this Memorandum for the text of the Managers' Explanatory Statement.

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) proposed a comprehensive and integrated approach to address these often interrelated problems. The Administration requested $11.5 million for the Tiwahe 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. The Act provides the funding increases requested by the Administration 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 consistent with the request.

Coordination and Streamlining of Energy Development Activities. The House Report states regarding energy development activities:

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 Not Transferred. The Administration proposed the transfer of the Indian Arts and Crafts Board from the Office of the Secretary to the Operation of Indian Programs budget. The Act does not make this change.

OPERATION OF INDIAN PROGRAMS

FY 2014 Enacted $2,378,763,000
FY 2015 Admin. Request $2,412,596,000
FY 2015 Enacted $2,429,236,000

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 Enacted $1,618,705,000

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.

TRIBAL GOVERNMENT

FY 2014 Enacted $535,082,000
FY 2015 Admin. Request $545,679,000
FY 2015 Enacted $547,679,000

The Tribal Government subactivities are: Aide to Tribal Government ($24.6 million); Consolidated Tribal Government Program ($76.3 million); Self-Governance Compacts ($158.7 million); Contract Support ($246 million); Indian Self-Determination Fund ($5 million); New Tribes ($463,000); Small and Needy Tribes ($1.8 million); Road Maintenance ($26.4 million); and Tribal Government Program Oversight ($8.1 million).

Contract Support Costs Estimated to Be Fully Funded. The Act does not place a cap on CSC spending. The House and Senate Committees recommend $246,000,000 for BIA, the amount 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 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)
The IHS report language is substantively the same except for the recommended amount.

The Act, as requested by the Administration, provides that the only amounts available for CSC are the sums appropriated under the Operation of Indian Programs account for and the Services account for IHS. It also states that no FY 2014 or FY 2015 CSC funds may be used by the BIA or the IHS 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, FY 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 of payments for settlements or judgments awarding contract support costs for prior years.

The Act, consistent with the Interior appropriations acts for FYs 1999-2014, attempts to limit the ability of the BIA and IHS 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 Managers' Explanatory Statement provides:

The agreement 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.

$2 Million Increase for Road Maintenance May be Used for School Bus Routes But No School Bus Route Inventory Is Required. The House Report took a stronger tone than the Managers' Explanatory Statement. It would have required that the additional $2 million above the Administration's request provided for Road Maintenance be spent to address the most urgent safety concerns, including roads used as school bus routes and it would have required a yearly inventory of these routes. The Managers' Explanatory Statement, however, controls. It simply states that the additional $2 million may be used for school bus routes and that the inventory requirement is dropped.

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)

The Managers' Explanatory Statement clarifies:

The agreement includes $2,000,000 above the budget request which may be used for school bus routes. The agreement does not include further reporting requirements.

HUMAN SERVICES

FY 2014 Enacted $132,778,000
FY 2015 Admin. Request $142,634,000
FY 2015 Enacted $142,634,000

The Human Services subactivities are: Social Services ($40.8 million); Welfare Assistance ($74.8 million); Indian Child Welfare Act (ICWA) ($15.4 million); Housing Improvement Program (HIP) ($8 million); Human Services Tribal Design ($407,000); and Human Services Program Oversight ($3.1 million).
$10 Million for Tiwahe Initiative. The chart provided in the Managers' Explanatory Statement concurs with the Administration's request to provide an additional $10 million for Human Services, $5.1 million of which is an increase for the Social Services subactivity and $4.7 million of which is an increase for the Indian Child Welfare Act subactivity. The House Report and the Managers' Explanatory Statement, in what appears to be a tacit agreement that the additional $10 million be used for the Tiwahe Initiative, simply provide the requested increases where the Senate Draft report would have both provided the additional funds and explicitly stated that this additional $10 million was "for the [Administration's proposed] Tiwahe initiative to strengthen tribal communities and protect children in Indian country."

TRUST–NATURAL RESOURCES MANAGEMENT

FY 2014 Enacted $184,295,000
FY 2015 Admin. Request $184,012,000
FY 2015 Enacted $184,852,000

The Trust–Natural Resources Management subactivities are: Natural Resources ($5 million); Irrigation Operation and Maintenance ($11.3 million); Rights Protection Implementation ($35.4 million); Tribal Management/Development Programs ($9.2 million); Endangered Species ($2.6 million); Cooperative Landscape Conservation ($9.9 million); Integrated Resource Information ($2.9 million); Agriculture and Range ($30.4 million); Forestry ($47.7 million); Water Resources ($10.2 million); Fish/Wildlife & Parks ($13.5 million); and Resource Management Oversight ($6 million).

$4 Million Reduction for Cooperative Landscape Conservation Averted. The House would have reduced funding for Cooperative Landscape Conservation by $4 million below the Administration's request; however, the chart provided in the Managers' Explanatory Statement controls and it provides the full $9,948,000 that the Administration requested.

$1.8 Million Increase for Forestry. The chart in the Managers' Explanatory Statement provides the same amount (a $1.8 million increase above the Administration's request) for Forestry that the House provided. 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 for Integrated Resource Information Program. The chart in the Mangers' Explanatory Statement provides $2,996,000 for Integrated Resource Information Program, $1 million less than what the Administration requested but $1 million more than the FY 2014 enacted amount.

TRUST–REAL ESTATE SERVICES

FY 2014 Enacted $126,758,000
FY 2015 Admin. Request $127,002,000
FY 2015 Enacted $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. The Act specifies $48.5 million for the Navajo-Hopi Settlement Program.

Klamath Basin Restoration Agreement. While the House Report was silent on the matter, the Mangers' Explanatory Statement specifies:

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.

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 Enacted $352,850,000

The Public Safety and Justice subactivities are: Law Enforcement ($328.2 million); Tribal Courts ($23.2 million); and Fire Protection ($1.2 million).

$1 Million Increase for VAWA Implementation. The House Report and the Managers' Explanatory Statement concur in providing a $1 million increase above the Administration's request for the purpose of implementing the Violence Against Women Act.

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. (H. Rept. 113-551, p. 46)
The Managers' Explanatory Statement concurs:
The agreement includes $1,000,000 above the budget request to provide training in Indian country to carry out the new provisions in the Violence Against Women Reauthorization Act of 2013.

Educational and Health-Related Services for Youth in Tribal Detention Centers Considered Allowable Costs. The House Report states:

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 Required. The Managers' Explanatory Statement, using similar terms as the Draft Senate Report, states:
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.

COMMUNITY AND ECONOMIC DEVELOPMENT

FY 2014 Enacted $35,300,000
FY 2015 Admin. Request $35,996,000
FY 2015 Enacted $35,996,000

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

$696,000 for the Tiwahe Initiative. The chart provided in the Managers' Explanatory Statement concurs with the Administration's request to provide an additional $696,000 above the FY 2014 Enacted level for Community and Economic Development. The Administration had requested that the increase be directed to the Job Placement and Training subactivity to support the Tiwahe Initiative. The House Report and the Managers' Explanatory Statement, in what appears to be a tacit agreement that the additional $696,000 be used for the Tiwahe Initiative, simply provide the requested increases where the Senate Draft report would have both provided the additional funds and explicitly stated that "the requested increase for job training programs to support the Tiwahe initiative is included."

EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES

FY 2014 Enacted $225,782,000
FY 2015 Admin. Request $229,755,000
FY 2015 Enacted $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 Less Than the FY 2015 Request; Evaluations of Education and Social Service Programs Still Required. The Mangers' Explanatory Statement, in language similar to that of the Senate's Draft Report, states:
The Bureau is directed to fund the requested program evaluations for education and social service programs within the amounts provided in this program.

BUREAU OF INDIAN EDUCATION

FY 2014 Enacted $788,754,000
FY 2015 Admin. Request $794,389,000
FY 2015 Enacted $810,531,000

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 enacted amount provides $16.1 million above the Administration's proposed budget, largely due to the $14.1 million increase for Tribal Grant Support Costs. Notably, there is a new pilot program to prevent early childhood cavities, and a request for the BIE to publish the most recent Johnson-O'Malley student count, as well as extensive language on restrictions on satellite schools and on efforts to redesign the BIE.

The House Report states:

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. (H. Rept. 113-551, p. 44)

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 Managers' Explanatory Statement clarifies:

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 wellbeing of Native American children. In addition to education, these include healthcare, social services, 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 American children.

Elementary and Secondary Programs (Forward Funded)
FY 2014 Enacted $518,318,000
FY 2015 Admin. Request $520,755,000
FY 2015 Enacted $539,897,000

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.

$14.1 Million Increase for Tribal Grant Support Costs. This budget item is similar to Contract Support Costs but has not been nearly as well funded as Contract Support Costs. 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 had requested $48 million for TGSC, the same amount which was far from sufficient in FY 2014. The Senate Subcommittee concurred with the overall spending level requested by the Administration for FY 2015 Elementary and Secondary Programs (Forward Funded) but did not detail allocations within that amount. The House Committee; however, recommended $72 million for Tribal Grant Support Costs, an amount which is estimated to fully fund this budget item. The Act provides a compromise amount: $62.3 million.
The House Report states:

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.

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)
The Managers' Explanatory Statement provides:
The agreement includes $2,000,000 for the development and operation of tribal departments or divisions of education as authorized in 25 U.S.C. 2020.

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 Managers' Explanatory Statement clarifies:

The Bureau is directed to publish its internal review of Early Child and Family Development programs and to consult with Tribes, other current program partners, and Congress before initiating the pilot projects proposed in the request. Any new pilot projects shall not reduce funding for currently operating Family and Child Education programs.

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 Managers' Explanatory Statement clarifies:

The Bureau is encouraged to coordinate with the Indian Health Service to establish a pilot program integrating preventative dental care at schools within the Bureau system.

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 Managers' Explanatory Statement clarifies that the Secretary of Interior, rather than the BIE Director, is to make this determination and that this authority is only to be exercised in "extraordinary circumstances":

The agreement includes bill language providing the Secretary with the authority to approve satellite locations of existing BIE schools if a Tribe can demonstrate that the establishment of such locations 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 for this authority to be exercised only in extraordinary circumstances to provide Tribes with additional flexibility regarding where students are educated without compromising how they are educated, and to significantly reduce the hardship and expense of transporting students over long distances, all without unduly increasing costs that would otherwise unfairly come at the expense of other schools in the BIE system.

The Act clarifies that this prohibition may only be waived in order for an Indian tribe to provide language and cultural immersion educational programs (among other restrictions):
Funds available under this Act may not be used to establish satellite locations of schools in the Bureau school system as of September 1, 1996, except that the Secretary may waive this prohibition in order for an Indian tribe to provide language and cultural immersion educational programs for non-public schools located within the jurisdictional area of the tribal government which exclusively serve tribal members, do not include grades beyond those currently served at the existing Bureau-funded school, provide an educational environment with educator presence and academic facilities comparable to the Bureau-funded school, comply with all applicable Tribal, Federal, or State health and safety standards, and the Americans with Disabilities Act, and demonstrate the benefits of establishing operations at a satellite location in lieu of incurring extraordinary costs, such as for transportation or other impacts to students such as those caused by busing students extended distances: Provided, That no funds available under this Act may be used to fund operations, maintenance, rehabilitation, construction or other facilities-related costs for such 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 83 p. 698-699)

Restriction on Funding for Elementary or Secondary Schools in Alaska. As requested by the Administration, the Act 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 Act would continue the restriction on funding for the expansion of grades and schools within the BIE system. The House Committee's bill would have removed the decision-making authority regarding waivers from the Secretary of the Interior (currently delegated to the Assistant Secretary-Indian Affairs) and would have instead delegated it to the BIE Director. The Act rejects this proposed change regarding decision-making authority.

Restriction on Funding for Charter Schools. As requested by the Administration, the Act would continue the restriction on funding for the establishment of charter schools. The House Report provides some clarification:

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)

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

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)
The Managers' Explanatory Statement clarifies:
The Bureau is directed to publish the results of the most recent Johnson-O'Malley student count, and to consult with Tribes and Congress before proposing any changes in the distribution of future funds or in the frequency or method of future counts.

Post Secondary Programs (Forward Funded)
FY 2014 Enacted $69,793,000
FY 2015 Admin. Request $69,793,000
FY 2015 Enacted $69,793,000

$1.6 Million Proposed Increase Rebuffed. The House, in Committee markup, approved a $1.6 million increase above the Administration's request for tribal colleges. That increase was not realized in the final amount provided in the Act.

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

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.

Congress concurred with the Administration's requested increase for Postsecondary (non-forward funded) account. The Administration identified the increase as consisting of $300,000 for tribal technical colleges, $250,000 for special higher education scholarships, and $1.7 million for the Science Post-Graduate Scholarship Fund.

Education Management
FY 2014 Enacted $20,354,000
FY 2015 Admin. Request $20,464,000
FY 2015 Enacted $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.

CONSTRUCTION

FY 2014 Enacted $110,124,000
FY 2015 Admin. Request $109,908,000
FY 2015 Enacted $128,876,000

The Construction budget includes: Education Construction; Public Safety and Justice Construction; Resources Management Construction; and Other Program Construction/ General Administration. The difference between the requested amount and the enacted amount is largely due to the $16.9 million increase provided for replacement school construction.

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)
The Managers' Explanatory Statement clarifies:

The Bureau is encouraged to request full funding for facilities maintenance needs in future budgets.

EDUCATION CONSTRUCTION

FY 2014 Enacted $55,285,000
FY 2015 Admin. Request $55,533,000
FY 2015 Enacted $74,501,000

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

$16.9 Million Increase for Replacement School Construction; Facilities Improvement and Repair Held Harmless. The amount provided for Education Construction is a compromise amount. The House would have provided $58.6 million for Replacement School Construction, estimated to be enough to complete construction of all three schools remaining on the BIE's 2004 School Replacement Priority List and would have held the Facilities Improvement and Repair subactivity harmless from the Administration's proposed cut. The Administration had requested only $3.2 million for Replacement School Construction, estimated to be enough to complete Phase I of the Beatrice Rafferty replacement school project, with that $2 million increase paid for with a $2 million cut from Facilities Improvement and Repair. The deal that resulted was full construction funds for the Beatrice Rafferty replacement school project, funding for design costs the two final schools on the replacement list and the proposed cut to Facilities Improvement and Repair averted:

• $20.1 Million for Replacement School Construction ($16.9 million + Request)
• $50.5 Million for Facilities Improvement and Repair ($2 million + Request)
• $3.8 Million for Employee Housing and Repair (consistent with Request)

The Managers' Explanatory Statement provides:

The agreement includes $20,165,000 for school replacement, $3,823,000 for employee housing repair, and $50,513,000 for facilities improvement and repair. The amount for school replacement completes the funding requirements for the school construction project started in fiscal year 2014 and covers design costs for the two final schools on the 2004 priority list. The Bureau is directed to publish a new list in time for the fiscal year 2016 funding cycle.
Significant health and safety hazards exist at Indian educational facilities across the country, including the Bug-O-Nay-Ge-Shig School of the Leech Lake Band of Ojibwe. The Bureau is urged to continue works with Tribes to repair and replace substandard educational facilities.

PUBLIC SAFETY & JUSTICE (PS&J) CONSTRUCTION

FY 2014 Enacted $11,306,000
FY 2015 Admin. Request $11,306,000
FY 2015 Enacted $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)

The Managers' Explanatory Statement clarifies:

The Committees continue 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.

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 Enacted $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 Enacted $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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