On December 23, 2011, President Obama signed the Consolidated Appropriations Act, 2012, as Public Law 112-74, an Act which includes FY 2012 funding for what would normally be nine separate appropriations bills (HR 2055; Conference Report is H.Rpt. 112-331). Included in the Act is funding for programs under the Interior, Environment, and Related Agencies Appropriations bill (Division E of the Act). In this Memorandum we report on the funding levels for the major programs in the Indian Affairs (IA), Office of the Special Trustee (OST), and related agencies that are of particular interest to Indian tribes and tribal organizations. We will provide a separate report on the FY 2012 funding levels for the Environmental Protection Agency.
During the first several months of FY 2012, the Indian Affairs and most other federal programs were funded under a Continuing Resolution at their FY 2011 level minus 1.5 percent. Under PL 112-74, Congress applied several across-the-board reductions which vary by appropriations sections. Programs, projects, and activities as detailed in the Act, accompanying reports, or President’s budget under Interior, Environment and Related Agencies have an across-the-board reduction of 0.16 percent.
Guidance. The Conference report states with regard to consideration of Appropriations Committee report language:
Language contained in House Report 112-151 [there was no Senate Committee report] 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.
In instances where the House report speaks more broadly to policy issues or offers views that are subject to interpretation, such views remain those of the House and do not reflect the views of the conferees unless otherwise repeated in this statement.
Status of Appropriations Balances. The Act includes House-proposed bill language that requires the DOI, IHS, EPA and Forest Service to provide Congress quarterly reports on the balances of appropriations. The bill language states:
SEC. 424. The Department of the Interior, the Environmental Protection Agency, the Forest Service, and the Indian Health Service shall provide the Committees on Appropriations of the House of Representatives and Senate quarterly reports on the status of balances of appropriations including all uncommitted, committed, and unobligated funds in each program and activity.
The House committee report explained:
During the development of the fiscal year 2011 continuing resolution, it became evident that many of the agencies under the subcommittee’s jurisdiction were unable to provide this data relating to both discretionary and mandatory accounts on a timely basis. The Committee experienced delays in receiving this information and found that the agency reports did not provide a comprehensive picture of the status of balances. Of particular concern, the Committee found that the agencies could not report on the age of balances by year of appropriation. As a result, it is not possible to tell whether the balances derive from uncommitted or unobligated balances in the immediately prior fiscal year or from appropriations acts enacted two, three or more years earlier.
The source year of carryover is important. If balances have languished on the books for multiple fiscal years it is a symptom, at best, of administrative inefficiency. Of more concern, it may suggest that the Committee was asked to provide appropriations in excess of the amount required to accomplish program purposes. Given the obvious importance of the source year of balances to budget administration, the Committee is puzzled that agencies have not configured internal accounting systems to capture and routinely report this information. . . .
…Bill language contained in Title IV requires that the Department of the Interior, EPA, Forest Service, and the Indian Health Service begin reporting to the Committee on a quarterly basis on the status of balances, including the source year of balances. It is the Committee’s intention that the agency reports show the status of balances at the appropriation account level, as well as at budget activity or other lower levels where such levels are reflected in the Committee’s report accompanying an appropriation act. (H.Rpt. 112-151, pp. 5-6)
Improved Coordination. The House committee expressed its views on the “fragmented” grant and funding opportunities processes tribes must navigate through the various agencies to address their needs. The Committee directed the DOI, HHS, DOJ, EPA and Forest Service to provide a report on possible streamlining and improved coordination on funding opportunities and opportunities for new compacts. The report stated:
While the Committee’s recommendation and the President’s budget include funds for these services, responsibility and oversight for many of the projects and programs are dispersed over several agencies. Some are contained within this Act, while others are not. For example, no less than three agencies may be involved in constructing a home on a reservation: the Indian Health Service, the Department of Housing and Urban Development, and the Bureau of Indian Affairs. Tribes may also seek funds from the Department of Transportation and the Environmental Protection Agency for infrastructure support of those homes. The result is a fragmented and confusing approach to addressing basic infrastructure and the health and education needs of American Indian communities.
On November 5, 2009, the President signed a memorandum directing all Federal agencies to provide a plan on how each agency is implementing Executive Order 13175, which requires Federal agencies to engage in regular and meaningful consultation with Tribes. The Committee supports this effort, but views it only as an initial step. Beyond consultation, there must be more effective implementation of the Federal laws and programs created to honor this Nation’s trust responsibility to American Indians–including meeting government-wide mandates under the Indian Self-Determination and Education Assistance Act (ISDEA, P.L. 93–638, as amended).
The Committee directs the Secretary of the Interior, the Secretary of Health and Human Services, the Attorney General, the Administrator of the Environmental Protection Agency, and the Chief of the Forest Service to provide this Committee within 120 days of enactment of this Act a joint report on: (1) how these agencies can use the consultation process to streamline and coordinate grant programs and funding opportunities for American Indian programs under their jurisdiction; and (2) opportunities for each agency and bureau to enter into new compacts with Tribes, as per ISDEA. (H.Rpt. 112-151, pp. 13-14)
The Indian Affairs section in this Memorandum reflects the 0.16 percent reduction. The Indian Affairs detailed budget information is in chart form and we discuss in the narrative only those issues that describe significant changes or may be of particular interest.
INDIAN AFFAIRS (IA) OVERVIEW
The Act provides an FY 2012 funding level of $2.5 billion for Indian Affairs, which is $62.7 million less than the FY 2011 enacted level and $30.6 million above the budget request. Within the total are $2.36 billion for the Operation of Indian Programs (OIP; $37.8 million increase above FY 2011 level) and $123.6 million for Construction ($85.9 million decrease from FY 2011).
Highlights within the Indian Affairs budget include the following:
• Increases/Reductions. The Act provides: Contract Support funding at $219.2 million, which is $352,000 below the FY 2011 level but is $23.7 million above the Administration’s request; $28,000 less than the FY 2011 level for Tribal Grant Support Costs for tribally operated schools (total funding of $46.25 million); $12.1 million increase for Public Safety and Justice (PS&J) programs, instead of the requested $25.8 million increase (total funding of $346.2 million).
The major decreases are under Construction (including $69.6 million decrease for Education Construction and $6.5 million decrease for PS&J Construction).
• Program Transfers. The Act transfers certain sub-activities as requested by the Administration to “properly align resources under their existing management/organizational structure.” These changes include: Facilities Maintenance from Construction to Bureau of Indian Education (BIE) and Public Safety and Justice under the Operation of Indian Programs; Minerals and Mining from Trust–Natural Resources to Community and Economic Development, and Road Maintenance from Community and Economic Development to Tribal Government.
• Indian Employment, Training, and Related Services. The Act does not include a House provision that would have made some important clarifications to the consolidated program that tribes administer under the authority of the Indian Employment Training and Related Services Demonstration Act, Public Law 102-477 (477). See the report language below regarding congressional instructions on this matter.
• Indian Reorganization Act. The Act does not include the Administration-proposed language that would have provided a “clean” Carcieri fix to reverse the U.S. Supreme Court’s 2009 decision that the Secretary of the Interior did not have authority to take land into trust for tribes recognized after 1934. The language was identical to a provision proposed in an FY 2011 appropriations measure.
OFFICE OF THE SPECIAL TRUSTEE
The Act funds the Office of the Special Trustee (OST) at the requested level of $152,319,000 (before 0.16 percent reduction). This includes $31.1 million (before 0.16 percent reduction) for the Office of Historical Accounting. The OST FY 2011 funding level was $160,678,000; with $31.5 million for Office of Historical Accounting.
OPERATION OF INDIAN PROGRAMS
FY 2011 Enacted $2,329,845,000
FY 2012 Admin. Request $2,359,692,000
FY 2012 Enacted $2,367,737,000
The FY 2012 funding for OPERATION OF INDIAN PROGRAMS (OIP) is a net increase of $37.8 million above the FY 2011 enacted level, with $20.8 million in programmatic increases.
• Indian Employment, Training, and Related Services. The Act does not include a House provision that would have addressed 477 tribes’ two primary concerns with the current administration of PL 102-477 by the federal agencies: 1) the threat to end the practice of transferring 477 program funds to participating tribes through agreements under the Indian Self-Determination Education and Assistance Act; and 2) the 2009 Office of Management and Budget Circular A-133 which requires 477 tribes and tribal organizations to report their 477 expenditures separately by funding source for audit purposes. Instead, Congress chose to allow time for the Administration to continue working with tribes to identify alternative solutions, and directs that the 477 Tribal Work Group be consulted on guidance documents prior to issuance. If the issues are not resolved, Congress will address them during the FY 2013 appropriations process. The Conference report states:
Indian Employment, Training and Related Services.—The bill does not include section 430 of the House bill pertaining to Indian employment, training, and related services pursuant to Public Law 102–477. This provision was intended to block the Administration from continuing with new, unauthorized and retroactive policies which run counter to how “477” funds have been transferred to tribal governments and how funds have been audited since the program’s inception 19 years ago. The conferees have dropped this provision in order to give the Administration time to honor its recent commitments to suspend new policies while working with Tribes to find alternative solutions.
The conferees understand that recent Administration commitments to the Tribes and the Congress include but are not limited to the following: that it has engaged the Tribes in a new consultative process to address agency and tribal concerns; that it has halted any effort to alter the manner and conditions under which “477” funds have historically been transferred to Tribes; that it has indefinitely suspended its 2009 supplemental audit requirements for any “477” program audits, covering fiscal years 2009 through 2012, that were not completed on or before September 30, 2011; and that annual “477” program audits will continue to comply with the Single Audit Act of 1984.
The conferees expect the Administration to consult with Tribes on a government-to-government basis, and to only proceed with improvements that reflect general consensus among the impacted Tribes and agencies. The P.L. 102–477 Tribal Work Group shall be consulted on the precise content of all guidance documents and similar issuances prior to their finalization. The House and Senate Appropriations Committees will be closely monitoring the progress of the consultation process, and will expect regular updates from the Administration. If issues concerning the transfer and audit of “477” funds are not permanently resolved administratively, the Committees intend to address this issue in the fiscal year 2013 process. (H.Rpt. 112-331 p. 1063-1064)
• Off-Reservation Gaming Approvals. There was some highly unusual language in the Conference report in which the conferees indicated that they were “aware of a lack of local support for two recent off-reservation gaming projects in Yuba, California, and Madera, California” which were approved by the Secretary in September 2010 and which are pending before Governor Brown of California for his concurrence under IGRA’s “two part determination” process. The Secretary is directed to “review these applications to verify the claim of ‘strong local support’ and report those findings to the Committees within 60 days of enactment of this Act.” It is not at all clear what purpose this language is intended to serve. The report states:
Other Matters.—The conferees are aware of a lack of local support for two recent off-reservation gaming projects in Yuba, California, and Madera, California, which received Secretarial Determinations on September 1, 2010. The evidentiary record provided by the Bureau of Indian Affairs indicates that only two of the 33 elected officials or bodies that were consulted on these projects expressed support for them. The conferees are also concerned that in one case, the Department appears to have largely ignored a popular vote which indicated a majority of the county was opposed to the construction of a casino on the site which was approved by the Department. Therefore, the conferees direct the Secretary to review these applications to verify the claim of “strong local support” and report those findings to the Committees within 60 days of enactment of this Act. (H.Rpt. 112-331 p. 1064)
BUREAU OF INDIAN AFFAIRS
FY 2011 Enacted $1,577,149,000
FY 2012 Admin. Request $1,564,138,000
FY 2012 Enacted $1,572,259,000
The Act provides programmatic increases under: Tribal Government ($1.9 million), Trust-Real Estate Services ($4.3 million), and Public Safety and Justice ($9.6 million) and concurs with the requested internal transfers totaling $51.4 million.
FY 2011 Enacted $509,589,000
FY 2012 Admin. Request $497,093,000
FY 2012 Enacted $519,330,000
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 page IA-CBT-1 of the attached chart.
The Tribal Government programs funding is $9.7 million above the FY 2011 enacted level, including the $25.3 million internal transfer of Road Maintenance from the Community and Economic Development account.
• Contract Support. The Act provides Contract Support funding of $219,208,704, which is slightly less than the FY 2011 level due to the 0.16 percent reduction but it is $23.7 million above the Administration’s request. The Act also provides $1.9 million for the Indian Self-Determination Fund, which is used for first year administrative costs related to new and expanded contracts.
The House committee report (H.Rpt. 112-151) noted the Bureau’s obligation to pay the full amount of contract support costs tribes have contracted for and directed that the FY 2013 request should include the amount necessary to fully fund contract support obligations. The report stated:
…Two recent court cases found that the Bureau was legally obligated to pay the full amount of all contract support costs that it had contractually agreed with Indian Tribes to pay, and limitations on the overall contract support cost appropriation does not overcome the Bureau’s obligation to pay said costs. The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission. (p. 42)
• Small and Needy Tribes. The Act provides $1.9 million of the requested $2.95 million to resume the Small and Needy Tribes program. Funds are used to provide a minimum TPA base funding to small tribes. The budget justification did not say how many tribes are currently receiving less than the recommended thresholds of recurring TPA but stated:
There are currently Tribes that receive less than the recommended $160,000 (mainland Tribes) and $200,000 (Alaska Tribes) TPA base funding thresholds. Therefore, an increase of nearly $3 million is proposed to bring those Tribes in the lower 48 states to the minimum TPA threshold of $160,000 and to raise the Alaska Tribes to a minimum threshold of $190,000. This will enable the Tribes to maintain the strength and effectiveness of their governments. Further evaluation of the need by Tribe based on the previous criteria of population and current funding will be used to determine the distribution when funds are appropriated. (IA-TG-3)
• Roads Maintenance. The Act approves the Roads Maintenance transfer from the Community and Economic Development budget category to Tribal Government, and provides $25.3 million ($1 million less than the FY 2011 level).
• Tribal Government Program Oversight. The Act provides the requested increase for Regional Oversight. The budget justification stated that the $1 million increase (less the 0.16 percent reduction) would be used to fund several new entry level Self-Determination Specialist positions to provide direct field services and technical assistance.
• Contract Support Cap. Consistent with past Appropriations acts, the Act continues language regarding a cap on contract support costs:
notwithstanding any other provision of law, including but not limited to the Indian Self-Determination Act of 1975, as amended, not to exceed $219,560,000 [less the 0.16 percent reduction] shall be available for payments for contract support costs associated with ongoing contracts, grants, compacts, or annual funding agreements entered into with the Bureau prior to or during fiscal year 2012, as authorized by such Act, except that tribes and tribal organizations may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, or compacts, or annual funding agreements and for unmet welfare assistance costs;
• Contract Support Limitation. The Act, consistent with the Interior Appropriations Acts for FYs 1999-2011, attempts to limit the ability of the IHS and BIA to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years:
Sec. 408. Notwithstanding any other provision of law, amounts appropriated to or otherwise designated in committee reports for the Bureau of Indian Affairs and the Indian Health Service by Public Laws 103-138, 103-332, 104-134, 104-208, 105-83, 105-277, 106-113, 106-291, 107-63, 108-7, 108-108, 108-447, 109-54, 109-289, division B and Continuing Appropriations Resolution, 2007 (division B of Public Law 109-289, as amended by Public Law 110-5 and 110-28), Public Laws 110-92, 110-116, 110-137, 110-149, 110-161, 110-329, 111-6, 111-8, 111-88, and 112-10 for payments for contract support costs associated with self-determination or self-governance contracts, grants, compacts, or annual funding agreements with the Bureau of Indian Affairs or the Indian Health Service as funded by such Acts, are the total amounts available for fiscal years 1994 through 2011 for such purposes, except that 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.
• TPA Redistribution. Consistent with past Appropriations acts, the Act continues language which authorizes redistribution of TPA and tribal base funds to alleviate funding inequities.
SEC. 105. Notwithstanding any other provision of law, the Secretary of the Interior is authorized to redistribute any Tribal Priority Allocation funds, including tribal base funds, to alleviate tribal funding inequities by transferring funds to address identified, unmet needs, dual enrollment, overlapping service areas or inaccurate distribution methodologies. No tribe shall receive a reduction in Tribal Priority Allocation funds of more than 10 percent in fiscal year 2012. Under circumstances of dual enrollment, overlapping service areas or inaccurate distribution methodologies, the 10 percent limitation does not apply.
• Tribal Shares Language. The Act, consistent with prior Interior Appropriations Acts, continues bill language regarding tribal shares.
Notwithstanding any other provision of law, no funds available to the Bureau of Indian Affairs for central office oversight and Executive Direction and Administrative Services (except executive direction and administrative services funding for Tribal Priority Allocations, regional offices, and facilities operations and maintenance) shall be available for contracts, grants, compacts, or cooperative agreements with the Bureau of Indian Affairs under the provisions of the Indian Self-Determination Act or the Tribal Self-Governance Act of 1994 (Public Law 103-413).
• Disaster Relief Language. Consistent with past Appropriations acts, the Act continues language that authorizes expenditures in excess of the funded amounts in order to provide disaster assistance to Indian communities.
Provided, That in cases of designated Federal disasters, the Secretary may exceed such cap, from the amounts provided herein, to provide for disaster relief to Indian communities affected by the disaster;
FY 2011 Enacted $136,621,000
FY 2012 Admin. Request $137,827,000
FY 2012 Enacted $136,360,000
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 page IA-CBT-1 of the attached chart.
The Act does not include the requested $ 2 million increase for Social Services. The funds were to be used to hire 15 new MSW-degreed social worker positions (11 tribal and 4 under BIA) to improve compliance with the staffing requirements under 25 C.F.R. Part 20.
TRUST–NATURAL RESOURCES MANAGEMENT
FY 2011 Enacted $156,082,000
FY 2012 Admin. Request $162,252,000
FY 2012 Enacted $157,244,000
The Trust–Natural Resources Management subactivities are: Natural Resources; Indian Irrigation Operation and Maintenance; Rights Protection Implementation; Tribal Management/Development Programs; Endangered Species; Cooperative Landscape Conservation; Integrated Resource Information Program; Agriculture and Range; Forestry; Water Resources; Fish, Wildlife & Parks; and Resource Management Oversight. For budget details by program, see pages IA-CBT-1 of the attached chart.
The Trust–Natural Resources Management FY 2012 level results in a net $1.16 million decrease from the FY 2011 level and the Act approves the requested internal transfer of $18.6 million in Minerals and Mining funds to the Community and Economic Development category.
TRUST–REAL ESTATE SERVICES
FY 2011 Enacted $145,823,000
FY 2012 Admin. Request $125,457,000
FY 2012 Enacted $126,759,000
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 and Real Estate Services Oversight. For budget details by program, see page IA-CBT-2 of the attached chart.
The Trust–Real Estate Services (RES) amount is a net decrease of $19 million but provides programmatic increases for Trust Services and Environmental Quality Projects. As requested, there is no funding for Litigation Support/Attorney Fees ($2.1 million in FY 2011). The budget justification stated the program elimination would “reprioritize available funding to address other core responsibilities to [AIs/ANs].”
• Trust Services – The conference report states the amount above the request level ($1.5 million, less the 0.16 percent reduction) is “for continued implementation of the Klamath Basin Restoration Agreement.”
• Environmental Quality Projects – The Act provides the nearly $2 million increase requested to ensure all schools in the Bureau of Indian Education (BIE) school system comply with federal environmental statutes and implement the Environmental Management Systems (EMS). Funds will be used to hire environmental professionals to conduct multimedia environmental audits at the schools and dormitories, and assist schools with their EMS. The initiative was the result of a settlement agreement between Indian Affairs and the EPA regarding widespread violations of various environmental laws at a number of BIE-funded schools.
• Water Rights Negotiations/Litigation – The Act provides the nearly $1 million increase requested, for total funding of $8.6 million. The budget justification stated the funds would support a greater number of “high-scoring proposals” from tribes and Regional offices that have “critical timeframes in [water rights] litigation and ongoing negotiations.”
• RES Projects – $10.85 million decrease; the balance of $2.95 million in FY 2012 funds are for the completion of the Nez Perce Reservation cadastral surveys required as part of a water rights settlement and to fund high priority “Emergency Surveys” that may be requested via the Indian Affairs Central Office. No funds are requested for the Lease Compliance and Unresolved Rights components previously funded under RES Projects.
• Land Records Improvement/Central – $8.4 million decrease, for total funding of $4.7 million. According to the budget justification, the reduction reflects reprioritized funding and focus on core responsibilities. The remaining funds will be used for operating the Trust Asset and Accounting Management System (TAAMS).
PUBLIC SAFETY AND JUSTICE
FY 2011 Enacted $334,090,000
FY 2012 Admin. Request $354,709,000
FY 2012 Enacted $346,223,000
The Public Safety and Justice (PS&J) subactivities are: Law Enforcement; Tribal Courts; and Fire Protection. For budget details by program, see pages IA-CFT-2 of the attached chart.
The Act provides a net $12.1 million increase from the FY 2011 level, with $9.6 million in programmatic increases, and $13.7 million for Facilities Operations and Maintenance transferred from the Construction category. Congress did not fund the requested $1 million to establish a Conservation Law Enforcement Officer (CLEO) line item. Funds would have been provided as base funding for tribes to hire CLEOs to protect tribal natural resources.
• Law Enforcement increases include:
o Detention/Corrections – The Act provides $7.3 million of the requested $10.4 million increase, for total funding of $81.8 million. The budget justification stated that, at the request level, approximately 70 percent of the increase would be allocated to tribal base funding and the balance for operation of Indian Affairs’ detention programs to address staffing shortages.
o Facilities Operation and Maintenance – The Act provides the requested $1 million increase (less the 0.16 percent reduction), for total funding of $13.7 million. The increase is for the operation and maintenance of four new detention facilities that were expected to open in FY 2011.
• Tribal Courts – The Act provides the requested funding level of $23.4 million, which is $3.6 million less than the FY 2011 level.
COMMUNITY AND ECONOMIC DEVELOPMENT
FY 2011 Enacted $36,855,000
FY 2012 Admin. Request $34,865,000
FY 2012 Enacted $34,809,000
The Community and Economic Development (CED) subactivities are: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight.
Congress agreed to the internal transfer of Road Maintenance ($25.3 million) from CED to the Tribal Government category and the transfer in of Minerals and Mining ($18.6 million) from Trust-Natural Resources to CED, resulting in a net decrease of $2 million from the FY 2011 level. For budget details by program, see page IA-CFT-2 of the attached chart.
• Minerals and Mining. In addition to the transfer, the Administration sought a $500,000 increase for the M&M Program line item in order to fully fund the Indian Energy Development Office located in New Town, ND. The budget justification stated the office was established at the request of Congress in FY 2009 and funded jointly by BLM, MMS, BIA and OST for FYs 2009 and 2010, with the understanding that Indian Affairs would seek continuation funding starting in FY 2011. The Act provides FY 2012 funding at the request level, less the 0.16 percent reduction.
EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES
FY 2011 Enacted $258,089,000
FY 2012 Admin. Request $251,935,000
FY 2012 Enacted $251,531,000
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.
The FY 2012 total reflects a $6.5 million reduction from the FY 2011 level, including programmatic reductions totaling $4.3 million. Congress also approved the requested internal transfer of $6.25 million for funds associated with Facilities Management-detention facilities, which is transferred to the Public Safety and Justice account. For budget details by program, see page IA-CFT-3 of the attached chart.
• Data Management. The Act provides the requested increase ($500,000 less the 0.16 percent reduction) to further the development of a data management system, a process intended to result in a single data information collection and management system for tribes to assess performance data reporting requirements and determine data collection needs.
BUREAU OF INDIAN EDUCATION
FY 2011 Enacted $752,696,000
FY 2012 Admin. Request $795,554,000
FY 2012 Enacted $795,478,000
The Bureau of Indian Education (BIE) category is comprised of funds for the BIE-funded elementary and secondary school system as well as other education programs including higher education and scholarships. The subactivities are: Elementary and Secondary Programs–Forward Funded; Elementary and Secondary Programs (non-forward funded); Post Secondary Programs–Forward Funded; Post Secondary Programs (non-forward funded); and Education Management.
General Overview. The Act provides $42.7 million above the FY 2011 level for the overall BIE category, including the transfer in of $50.6 million in Facilities Maintenance funds. Within the total funding is $644.7 million for School Operations, $128.7 million for Post Secondary Programs, and $21.9 million for Education Management. For budget details by program, see pages IA-CBT-3/-4 of the attached chart.
School Operations Overview. Highlights under funding that impacts the BIE elementary and secondary schools include:
— Programmatic increase of $1.9 million for ISEP Program Adjustments, resulting in a net increase of $2.1 million over FY 2011for the forward-funded elementary + secondary school programs
— Budget structure change that transfers $50.6 million in Facilities Maintenance funds from Construction to the elementary + secondary school non-forward funded programs
— Program eliminations totaling $4.3 million
Elementary and Secondary Programs–Forward Funded
FY 2011 Enacted $520,047,000
FY 2012 Admin. Request $526,117,000
FY 2012 Enacted $522,246,000
Amounts provided under the forward funded category are for use in School Year (SY) 2012-2013. The FY 2012 amount is a net increase of $2.1 million over the FY 2011 level. The forward funded programs and their proposed funding levels are:
o Tribal Grant Support Costs – $46,252,000. Funds are for administrative costs of existing tribally-operated schools. As in prior years, the Administration did not seek, and Congress did not provide, separate funds for the transitional costs associated with schools which convert from federal to tribal operation. Bill language is continued that authorizes up to $500,000 of Tribal Grant Support Costs (TGSC) funds to be used for the initial year costs. The BIE estimated the FY 2012 request amount of $46.37 million would provide only 65 percent of administrative costs need in SY 2012-2013 and that three schools may be converting to tribally controlled schools status in FY 2012.
o Indian School Equalization Formula (ISEF) – $390,706,000. The BIE had estimated that ISEF funding at the FY 2012 request level of $392.3 million would result in a weighted student unit (WSU) of $5,320.62 in SY 2012-2013. In comparison, the FY 2010 ISEF level of $391.6 million resulted in a $5,312.38 WSU in SY 2010-2011.
o ISEP Program Adjustments – $5,277,000. The Act provides $1.9 million of the requested $3.9 million increase to address “significant safety and security issues” at 10 schools and 2 dormitories identified via the Native American Student Information System (NASIS) incident reports as having the most critical needs.
The balance of Program Adjustment funds are used primarily for the “FOCUS on Student Achievement Project,” which targets schools that are close to meeting the annual measurable objectives set by their state achievement tests and where the additional resources could help them achieve Adequate Yearly Progress (AYP). A small amount is also allocated for security and police at the Chemawa Indian School.
o Student Transportation – $52,631,000. The FY 2012 amount is a $61,000 decrease. The BIE estimated the request amount of $52.7 million would provide a SY 2012-2013 payment rate of $3.23 per mile, the same as the SY 2010-2011 rate. The Student Transportation funds are also used to fund two round-trip airfares for students attending off-reservation boarding schools in addition to the operation of school transportation systems.
o Early Childhood Development – $15,345,000. The FY 2012 amount reflects a $4,000 decrease due to the 0.16 percent reduction. In SY 2010-2011 these funds supported the Family and Child Education (FACE) program for pre-school children, parenting skills, adult education and family literacy services at 46 sites.
o Education Program Enhancements – $12,031,000. This reflects a $12,000 decrease due to the 0.16 percent reduction. As in previous years, these funds will be used to continue targeted assistance to schools that have not achieved AYP—particularly those in restructuring status.
Elementary and Secondary Programs (non-forward funded programs)
FY 2011 Enacted $ 76,938,000
FY 2012 Admin. Request $122,730,000
FY 2012 Enacted $122,533,000
Amounts provided under the non-forward funded category are for use in SY 2011-2012. The Act provides a $45.5 million net increase, which includes the aforementioned $50.6 million transfer of Facilities Maintenance funding from Education Construction to Elementary and Secondary Programs. Congress also agreed to the elimination of the Residential Education Placement ($3.7 million) and the Juvenile Detention Education ($619,000) programs. Program specifics in this category are:
o Facilities Operations – $58,565,000; a $584,000 decrease. The Facilities Operations funds are used for costs such as electricity, heating fuels, communications, GSA vehicle rentals, custodial services and numerous other vital operating expenses. For the past several years, schools have received less than 50 percent of the amount needed for Facilities Operations.
o Facilities Maintenance – $50,664,000; a $102 million decrease. These funds are also a transfer from the Education Construction account to “increase transparency” and reflect its status as an annual operational cost. (IA-EDU-2). Funds are used for the preventive and routine upkeep as well as unscheduled maintenance of school buildings, equipment, utility systems and grounds.
o Johnson O’Malley (JOM) – $13,303,000; an $82,000 decrease. JOM funds provide special academic and culturally relevant educational services to Indian students from age three through the 12th grade at public schools. According to the budget justification, 88 percent of the funds are distributed directly to tribes as base funding through its Self-Governance or Consolidated Tribal Government Programs.
o Program Eliminations – $4,319,000. The Administration proposed, and Congress agreed, to eliminate funding for the following programs in order to “address other core responsibilities to American Indians and Alaska Natives”:
Residential Education Placement Program – funded at $3,760,000 in FY 2010 to provide 24-hour institutionalized care for children with severe disabilities. The budget justification stated that funding from the Department of Education may be used for this same purpose.
Juvenile Detention Education – funded at $620,000 in FY2011 to provide educational services to detained and incarcerated youth at the 24 BIA-funded juvenile detention facilities. The budget justification stated funding would be eliminated “to address other core responsibilities to American Indians/Alaska Naitves.”
FY 2011 Enacted $29,916,000
FY 2012 Admin. Request $22,006,000
FY 2012 Enacted $21,970,000
Education Management is comprised of two elements: Education Program Management ($15.2 million), and Education IT ($6.6 million), which funds the collection and analyses of school performance data. Specifics for programs in this category are:
o Education Program Management – $15,287,000 for administrative costs in performing services as a State Education Agency and like those performed by a public school district for the BIE-funded school system as well as employee separation costs. The FY 2012 amount is a $7.4 million decrease.
o Education Information Technology – $6,683,000. The FY 2012 amount is a $475,000 decrease. Funds are used for data telecommunications to support the Educational Native American Network (ENAN, which provides Internet capability at the schools) and the Native American Student Information System (NASIS, which is a web-based data collection and analysis system used by the BIE).
• Multi-Program Contractors. The Act continues the provision in prior Interior appropriations that is intended to preserve the ability of tribes who operate both school and non-school programs to receive appropriate funding for administrative costs and indirect costs incurred by these multi-program contractors.
Notwithstanding any other provision of law, including section 113 of title I of appendix C of Public Law 106-113, if in fiscal year 2003 or 2004 a grantee received indirect and administrative costs pursuant to a distribution formula based on section 5(f) of Public 101-301, the Secretary shall continue to distribute indirect and administrative cost funds to such grantee using the section 5(f) distribution formula.
• Jones Academy. The Act does not include the Administration-proposed language that would recognize Jones Academy as eligible for school operations funding starting in SY 2012-2013, thus overriding the current prohibition on new schools.
• IDEA Data Collection. The Act continues language to authorize the BIA to collect data from the IHS and tribes regarding disabled children in order to assist with the implementation of the Individuals with Disabilities Education Act (IDEA).
Provided further, that the Bureau of Indian Affairs may collect from the Indian Health Service, tribes and tribal organizations operating health facilities pursuant to Public Law 93-638, such individually identifiable health information relating to disabled children as may be necessary for the purpose of carrying out its functions under the Individuals with Disabilities Education Act (20 U.S.C. 1400, et. seq.)
Post Secondary Programs (Forward Funded)
FY 2011 Enacted $64,192,000
FY 2012 Admin. Request $64,321,000
FY 2012 Enacted $67,293,000
According to the budget justification, the $64.3 million total for Tribal Colleges and Universities (TCU) included $63.6 million for TCU Operating Grants, $601,000 for Technical Assistance and $109,000 for Endowment Grants. The TCU program will provide funding to 27 tribal colleges in FY 2012.
Post Secondary Programs (Non-Forward Funded)
FY 2011 Enacted $61,603,000
FY 2012 Admin. Request $60,380,000
FY 2012 Enacted $61,434,000
The Post Secondary Programs line items are: Haskell and SIPI operating costs; Tribally Controlled Colleges and Universities Supplements; Tribal Technical Colleges; Scholarships and Adult Education; and Special Higher Education Scholarships.
• Tribal Technical Colleges. The Act provides $6.76 million for the tribal technical colleges (United Tribes Technical College and Navajo Technical College), a $680,000 increase over FY 2011. The funds are distributed proportionately between the two schools for a total of $4.5 million for UTTC and $2.2 million for NTC.
• Scholarships and Adult Education. The Act provides $32.7 million or $1.7 million less than the FY 2011 level. Funds are provided to tribes via TPA to award individual post secondary scholarships.
FY 2011 Enacted $209,579,000
FY 2012 Admin. Request $104,992,000
FY 2012 Enacted $123,629,000
The FY 2012 Construction total is an $85.9 million decrease from the FY 2011 level, including transfers totaling $58.1 million to the Operation of Indian Programs. Congress did not concur with the Administration’s proposal to impose a freeze on school and facilities construction, instead partially reinstating Replacement School Construction.
For budget details by program, see page IA-CBT-4 of the attached chart.
FY 2011 Enacted $140,509,000
FY 2012 Admin. Request $ 52,104,000
FY 2012 Enacted $ 70,826,000
The FY 2012 total is a $69.6 million decrease for all education construction and repair activities, but does reinstate $17.8 million for Replacement School Construction. The Administration did not request, and Congress did not provide, any funds for the Replacement Facility Construction program ($29.4 million in FY 2011), which funds replacement of a single building that is part of an existing school campus and is in poor condition.
Replacement School Construction
FY 2011 Enacted $21,463,000
FY 2012 Admin. Request –0–
FY 2012 Enacted $17,807,000
This account funds total replacement of an existing school campus, in accordance with a priority construction list, and Advance Planning and Design activities such as architectural and engineering services. The Conference report directs that the FY 2012 funds are to be used for the next school on the 2004 priority list.
Facilities Improvement + Repair
FY 2011 Enacted $85,142,000
FY 2012 Admin. Request $47,669,000
FY 2012 Enacted $48,591,000
The FY 2012 FI+R amount reflects an internal transfer of $50.6 million in Facilities Maintenance funds from Construction to the Operation of Indian Programs–BIE category. The Act includes, as requested, a $13.8 million increase through the redirection of the Replacement School and Replacement Facility construction funds. The budget justification stated:
The FI&R funding will be used to repair major building and/or infrastructure systems and keep the current facilities/infrastructure operational. This redirection in funding will significantly improve the program’s ability to meet customer needs. (IA-CON-ED-2)
The budget justification reported the $47.7 million request level would be allocated as follows:
o Program Management – $3.2 million
o Minor improvement & repair – $11.2 million
o Advance planning and design – $1 million
o Condition assessments – $2.5 million
o Demolition/reduction of excess space – $2.98 million
o Emergency repairs – $3.49 million
o Environmental projects – $4.8 million
o Portable classrooms – $1.5 million
o Energy Program – $3.2 million
o Education telecommunications – $350,000
o Boiler inspections – $250,000
o Seismic safety data – $72,000
o Cyclic maintenance – $13.1 million; a new category whereby funds will be used for conducting cyclic maintenance of all buildings, equipment, utility systems and ground structures.
FY 2011 Enacted $4,438,000
FY 2012 Admin. Request $4,435,000
FY 2012 Enacted $4,427,000
These funds will be used to continue asbestos and lead-based paint abatement, along with disposal of housing units previously identified through the study.
The Act continues the appropriations language that allows the Bureau to take over a construction project from a grantee that fails to complete planning and design of a project and begin construction within 18 months of funds being appropriated.
Provided further, That in order to ensure timely completion of construction projects, the Secretary may assume control of a project and all funds related to the project, if, within eighteen months of the date of enactment of this Act, any grantee receiving funds appropriated in this Act or in any prior Act, has not completed the planning and design phase of the project and commenced construction
Public Safety & Justice (PS&J) Construction
FY 2011 Enacted $17,864,000
FY 2012 Admin. Request $11,329,000
FY 2012 Enacted $11,310,000
Within the PS&J Construction total are Employee Housing; Facilities Improvement and Repair (FI+R) program; Fire Safety Coordination; and Fire Protection. The Administration did not seek, and Congress did not provide, any funds for Facility Replacement/New Construction. Highlights of PS&J construction are:
o Employee Housing – $3.4 million, level with FY 2011. The FY 2012 funds will be used for “repair, replacement, or construction of new quarters at existing detention centers or law enforcement facilities.”
o Facilities Improvement and Repair –$4.3 million; a $6.5 million decrease from the FY 2011 level which reflects the detention facilities maintenance funds transferred to the OIP-Public Safety and Justice account.
Resources Management Construction
FY 2011 Enacted $42,074,000
FY 2012 Admin. Request $33,012,000
FY 2012 Enacted $32,959,000
Resources Management funds are used for Irrigation Project Construction; Engineering and Supervision; Survey and Design; Dam Projects; and Federal Power Compliance (FERC). The Act agrees to the proposed decrease of $9 million under the Navajo Indian Irrigation Project (NIIP). The budget justification stated that no funds for new construction were requested and that future funding options would be reviewed by the NIIP Policy Team.
• OST Reimbursement for Space Expansion. Bill language is continued that allows the Office of the Special Trustee to reimburse its appropriate share of construction costs related to the expansion of space at the agency level necessitated by trust reform implementation.
Provided further, That this appropriation may be reimbursed from the Office of the Special Trustee for American Indians appropriation for the appropriate share of construction costs for space expansion needed in agency offices to meet trust reform implementation.
OFFICE OF SPECIAL TRUSTEE (OST)
(Amounts in following sections DO NOT reflect 0.16 percent reduction)
FY 2011 Enacted $160,678,000
FY 2012 Admin. Request $152,319,000
FY 2012 Enacted $152,319,000
Within the OST total are $2.2 million for Executive Direction and $150.1 million for Program Operations and Support. The OST budget justification states that “As trust reform projects near completion, personnel resources will be redistributed to ensure strategic placement of personnel according to agency goals and priorities. Some positions will be eliminated and/or redefined through this process.” (p. OST – 5)
• Office of Historical Trust Accounting (OHTA) – $31.17 million; includes $27.2 million to support analysis of tribal claims, and $4 million to resolve ownership of residual balances related to special deposit accounts and distributions to tribes, individual Indians, and non-trust entities.
• Indian Probate Judges. The Act amends to make permanent the provision that deems Indian probate cases heard by an Indian probate judge as meeting the hearing requirements, and sets the pay level for Indian probate judge services.
SEC. 111. For fiscal year 2006 and each fiscal year thereafter, for the purpose of adjudicating Indian probate cases in the Department of the Interior, the hearing requirements of chapter 10 of title 25, United States Code, are deemed satisfied by a proceeding conducted by an Indian probate judge, appointed by the Secretary without regard to the provisions of title 5, United States Code, governing the appointments in the competitive service, for such period of time as the Secretary determines necessary: Provided, That the basic pay of an Indian probate judge so appointed may be fixed by the Secretary without regard to the provisions of chapter 51, and subchapter III of chapter 53 of title 5, United States Code, governing the classification and pay of General Schedule employees, except that no such Indian probate judge may be paid at a level which exceeds the maximum rate payable for the highest grade of the General Schedule, including locality pay.
• Statute of Limitations. The Act continues language to extend the statute of limitations on filing tribal and individual Indian mismanagement claims.
Provided further, That notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.
• Other. The Act also continues the following provisions related to the trust programs—
o Authorizes the use of unobligated balances from prior appropriations acts for OST or BIA for trust management reform, other than activities related to historical accounting, which is limited to the appropriated amount. (Sec. 104)
o Pay private attorneys for the costs of legal representation for employees and former employees incurred in connection with Cobell v. Salazar. (Sec. 106)
NATIONAL PARK SERVICE (NPS)
(Amounts in following sections DO NOT reflect 0.16 percent reduction)
o Tribal historic preservation grants – $9 million, $1.01 million above the FY 2011 level. These funds aide tribes in assuming the State Historic Preservation Office duties on tribal lands. The Administration requested $11 million, estimating that it would support seven additional Tribal Preservation Officers and provide small increases for the 118 ongoing grants to existing Tribal Historic Preservation Offices.
o Native American Graves Protection and Repatriation Act (NAGPRA) grants – These funds assist tribes and Native Hawaiian organizations document and work for repatriation of cultural items, and assist museums to achieve NAGPRA compliance. The Administration requested $1.75 million, which was funded at $2.3 million in FY 2010. Budget details do not show the FY 2012 amount for NAGPRA grants but does show that Cultural Programs, which includes NAGPRA grants funds, is funded at the request level. Thus, it is likely the NAGPRA grants will be funded at the request level, minus the 0.16 percent reduction.
FISH AND WILDLIFE SERVICE
(Amounts in following sections DO NOT reflect 0.16 percent reduction)
State and Tribal Wildlife Grants
FY 2011 Enacted $61,876,000
FY 2012 Admin. Request $95,000,000
FY 2012 Enacted $61,421,000
These funds are used for the development of wildlife conservation plans and on-the-ground conservation projects to stabilize, restore, enhance, and protect species and their habitats. Within the total, the Tribal competitive grant program is funded at
$4.2 million, which is $2.7 million less than FY 2011 level, not including the 0.16 percent reduction.
OFFICE OF NAVAJO AND HOPI RELOCATION
(Amounts in following sections DO NOT reflect 0.16 percent reduction)
FY 2011 Enacted $7,984,000
FY 2012 Admin. Request $9,570,000
FY 2012 Enacted $7,750,000
Funds are used for activities related to the settlement of a northern Arizona land dispute between the two tribes.
INSTITUTE OF AMERICAN INDIAN AND ALASKA NATIVE
CULTURE AND ARTS DEVELOPMENT
(Amounts in following sections DO NOT reflect 0.16 percent reduction)
FY 2011 Enacted $8,283,000
FY 2012 Admin. Request $9,225,000
FY 2012 Enacted $8,533,000
Funds are used to support the operational costs of the Institute, a multi-tribal higher education center focused on the study, application, preservation and care of Indian arts and culture.
Please let us know if we may be of further assistance regarding the FY 2012 appropriations for the programs covered in this Memorandum.