On December 18, 2015, President Obama signed the Consolidated Appropriations Act, 2016 as PL 114-113 (“the Act”). The Act contains funding for all federal agencies, combining what under regular procedures would be 12 separate bills. In this Memorandum we report on FY 2016 funding for Indian Affairs (which includes the Bureau of Indian Affairs (BIA) and Bureau of Indian Education (BIE)) which is in Division G (Interior, Environment and Related Agencies) of the Act. In addition to the Explanatory Statement accompanying the Act, House and Senate Interior Appropriations report language (H. Rept. 114-170; S. Rept. 114-70) is to be complied with unless specifically contradicted by the bill language or the Explanatory Statement. (See our General Memorandum 15-048 of July 7, 2015 comparing the House and Senate Committees’ and the Administration’s recommendations regarding the FY 2016 Indian Affairs budget.) Attached is the FY 2016 Enacted Budget Chart. We describe in narrative only those subactivities and line items which differ significantly from FY 2015 enacted amounts and terms or the Administration’s FY 2016 request.
INDIAN AFFAIRS (IA) OVERVIEW
For FY 2016, the Act provides $2.7 billion for Indian Affairs. This is slightly lower than the Administration’s request ($2.9 billion) but higher than the FY 2015 enacted level ($2.6 billion). This overall funding level reflects the fact that Congress and the Administration reached a deal to slightly increase the budget caps for FYs 2016 and 2017 in exchange for targeted cuts elsewhere in the federal budget. The Administration had originally requested greater increases for FY 2016 while Congress had initially proposed lower spending levels in line with the budget caps set forth in the Budget Control Act.
The FY 2016 enacted amount reflects “indefinite appropriations” for Contract Support Costs and what for the first time is estimated to be full funding for tribally-controlled schools’ Tribal Grant Support Costs. Notably, this overall amount for Indian Affairs also reflects substantial increases for school construction as well as significant increases for tribal court improvement (especially in PL 280 states) and implementation of the Violence Against Women Act and support for the Tiwahe initiative. The Act also provides funding to establish the Indian Energy Service Center that was requested by the Administration. These bipartisan investments in tribal self-determination, education, safety, justice, and economic development are significant not only for their dollar amount but also for the sheer fact that they exist when many federal programs are being cut, flat funded, or receiving only nominal increases.
Also of note, Congress provided a significant increase for the Office of Navajo-Hopi Indian Relocation. This Office is also funded under Division G of the Act but is separate from the INDIAN AFFAIRS budget. It is located under the OTHER RELATED AGENCIES section.
Contract Support Costs. Most notable is the moving of Contract Support Costs (CSC) into its own account and the instructions in the Act that it is to be funded at “such sums as may be necessary.” The Explanatory Statement assumes a need of $277 million ($26 million over FY 2015). Should the need for CSC exceed the amount listed in the budget chart, additional CSC funds would be made available and the agencies’ program funding will not be reduced. This provision is applicable to only the FY 2016 Appropriations Act and so discussion will continue on the issue of providing permanent mandatory funding for CSC. See the CSC section elsewhere in this Memorandum for additional information.
Fixed Costs. The Administration’s request for the Indian Affairs budget included $18.3 million to fully fund increases attributed to fixed costs. The Explanatory Statement concurs, stating that fixed costs and transfers are included in the amounts provided for OPERATION OF INDIAN PROGRAMS. The Senate report specifies that fixed costs and transfers are also included in the amounts provided for CONSTRUCTION.
Indirect Costs. The House Report states:
The Committee is concerned that a recent Administration policy change with regard to indirect cost reimbursement may not fairly apply to Indian Tribes and tribal organizations. The Secretary is directed to report to the Committee justifying this policy change and in particular its application to tribal enrollment activities. (H. Rept. 114-170, p. 40)
Tribal Grant Support Costs. For the first time, Tribal Grant Support Costs (which are essentially Contract Support Costs for tribally-controlled schools) are fully funded. This is a significant step. The next step will be to ensure that they receive permanent, mandatory funding—just as tribes are advocating for Contract Support Costs.
Tiwahe (Family)Initiative. For FY 2016, the Administration requested increases to the Human Services activity and Public Safety and Justice activity to continue and expand the Tiwahe initiative which is designed to strengthen Indian families, reduce recidivism, and strengthen tribal justice systems. Congress largely agreed to these requested increases for the Tiwahe initiative.
Indian Reorganization Act – Carcieri Fix Not Included. Congress continues to not provide 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 Carcieri-Fix language that the Administration requested for FY 2016 is the same as what was requested in FYs 2011, 2012, 2013, 2014 and 2015.
Restriction on Implementation of New Federal Recognition Rule Not Included. The Act omits language from the House bill which would have restricted the Secretary of Interior from implementing, administering, or enforcing the new Federal Acknowledgment rule. Instead, the Explanatory Statement merely states:
The Committees acknowledge concerns expressed by certain tribes, States, and bipartisan members of Congress regarding recent changes in tribal recognition policy on standards that have been applied to new applicants since 1978. Federal acknowledgement of a tribe impacts the Federal budget, other tribes, State and local jurisdictions, and individual rights. The Committees expect the Administration to maintain rigorous recognition standards while implementing a more transparent, efficient, and workable process.
OPERATION OF INDIAN PROGRAMS
FY 2015 Enacted $2,429,236,000
FY 2016 Admin. Request $2,660,591,000
FY 2016 Enacted $2,267,924,000
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 2015 Enacted $1,618,705,000
FY 2016 Admin. Request $1,756,127,000
FY 2016 Enacted $1,415,557,000
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.
FY 2015 Enacted $547,679,000
FY 2016 Admin. Request $583,767,000
FY 2016 Enacted $301,517,000*
*This lower FY 2016 enacted amount reflects the transfer of Contract Support and the Indian Self-Determination Fund from within the Tribal Government activity to a new account which is separate from the OIP budget. The Tribal Government subactivities are now: Aid to Tribal Government; Consolidated Tribal Government Program; Self-Governance Compacts; New Tribes; Small and Needy Tribes; Road Maintenance; and Tribal Government Program Oversight. (See attached: FY 2016 Enacted Budget Chart, p. 1)
Congress rejected the Administration’s requested increases for the Small and Needy Tribes and Tribal Government Program Oversight subactivities.
New Tribes. The Senate Report states:
[The Committee] 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 2016 beyond those contemplated in the budget request, the Bureau is urged to support their capacity building efforts to the extent feasible. (S. Rept. 114-70, p. 37)
Road Maintenance. The House Report states:
The Committee recognizes that too many roads on Indian reservations are in poor condition and are a significant safety concern. (H. Rept. 114-170, p. 37)
FY 2015 Enacted $142,634,000
FY 2016 Admin. Request $149,004,000
FY 2016 Enacted $147,004,000
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. (See attached: FY 2016 Enacted Budget Chart, p. 1-2)
Social Services-Tiwahe Initiative. Congress provided $4 million of the Administration’s $6 million requested increase to continue the work of the Tiwahe initiative. “The Tiwahe initiative supports the White House’s cross-agency Generation Indigenous initiative, which takes a comprehensive, culturally appropriate approach to help improve the lives and opportunities for Native Youth. Tiwahe, specifically, is a plan to strengthen Indian families and promote family stability in order to fortify tribal communities.” (Admin. Request, p. IA-HS-1)
TRUST–NATURAL RESOURCES MANAGEMENT
FY 2015 Enacted $184,852,000
FY 2016 Admin. Request $232,796,000
FY 2016 Enacted $191,846,000
The Trust–Natural Resources Management subactivities are:
Natural Resources; Irrigation Operation and Maintenance; Rights Protection Implementation; Tribal Management/Development Programs; Endangered Species; Tribal Climate Resilience/Cooperative Landscape Conservation; Integrated Resource Information; Agriculture and Range; Forestry; Water Resources; Fish/Wildlife & Parks; and Resource Management Oversight. (See attached: FY 2016 Enacted Budget Chart, p. 2)
Congress provided just $6.9 million of the Administration’s requested $46.9 million increase. Of this $6.9 million, $2 million was allocated for the Rights Protection Implementation subactivity and $4 million was allocated for the Forestry subactivity (with $2 million for forest thinning and $2 million for fire recovery). The $20.4 million increase requested by the Administration for the Tribal Climate Resilience subactivity went unfunded; however, the House Report states:
The Committee is concerned about tribal communities that face severe challenges to their long-term resilience because of risks associated with climate, geography, and extreme weather conditions. The Bureau is encouraged to work with at-risk Tribes to identify and expedite the necessary resources to support mitigation and, where necessary, relocation. (H. Rept. 114-170, p. 37)
TRUST–REAL ESTATE SERVICES
FY 2015 Enacted $127,002,000
FY 2016 Admin. Request $143,000,000
FY 2016 Enacted $127,486,000
The Trust–Real Estate Services subactivities are:
Trust Services; Navajo-Hopi Settlement Program; Land Title and Records Offices; Real Estate Services; Land Records Improvement; Environmental Quality; Alaskan Native Programs; Rights Protection; and Trust-Real Estate Services Oversight.(See attached: FY 2016 Enacted Budget Chart, p. 2)
Congress provided a nominal increase for Trust Real-Estate Services, but far less than the $16.2 million in increases sought by the Administration for the Probate; Land Title and Record Office; Land Records Improvement; Water Rights Negotiations/Litigation; Litigation Support/Attorney Fees and Regional Oversight subactivitites. The House and Senate weighed in on the fee-to-trust process and the process for approving of rights-of-way.
The House Report states:
The Committee is concerned about the Department’s goal of placing more than 500,000 acres of land into trust by the end of fiscal year 2016. Such a goal incentivizes haste and leads to situations such as in Clark County, Washington. On March 9, 2015, the Department took into trust approximately 152 acres in Clark County on behalf of the Cowlitz Indian tribe, notwithstanding ongoing litigation in the matter. The Committee directs the Department to: (1) report to the Committee within 30 days of enactment of this Act on (a) the process it has established for taking the land out of trust should the court order the Department to do so; and (b) the cost to the Department of taking the land out of trust; and (2) focus not on an acre goal but on reducing the current backlog of fee-to-trust applications. It is entirely appropriate for the government’s goal to be to process those applications as efficiently and fairly as possible. The Committee recommends cuts to central and regional oversight in light of the program’s current goal.” (H. Rept. 114-170, p. 37-38)
The Senate Report states:
The Committee recognizes natural gas flaring has been an ongoing issue in places of energy development, including on tribal lands. The Committee also recognizes the challenge of attracting investment and building infrastructure and understands that rights-of-way approvals are an important component to reduce natural gas flaring. The Committee is aware there are significant delays in getting rights-of-way approvals and encourages the Department to move forward with reservation-wide fair market appraisals that provide fair market values to all parties affected for future rights-of-way applications on energy-affected tribal lands with natural gas flaring. (S. Rept. 114-70, p. 37-38)
PUBLIC SAFETY AND JUSTICE
FY 2015 Enacted $352,850,000
FY 2016 Admin. Request $364,423,000
FY 2016 Enacted $377,423,000
The Public Safety and Justice subactivities are: Law Enforcement; Tribal Courts; and Fire Protection. (See attached FY 2016 Enacted Budget Chart, p. 3)
Notably, Congress provided $24.5 million in increases above FY 2015 for Public Safety and Justice, outstripping even the Administration’s requested increases by $13 million.
Criminal Investigations and Police Services. The Act provides the $3 million increase requested by the Administration. “The Committees encourage BIA to continue to look for opportunities to improve public safety resources, especially child foster care services, on Spirit Lake Reservation.” (Explanatory Statement)
Law Enforcement Special Initiatives. The Act provides the $3 million increase requested by the Administration to expand the BIA’s efforts to reduce recidivism at additional Tiwahe initiative sites.
Tribal Courts. The Act provides the $5 million increase requested by the Administration to provide targeted base funding to tribal courts at each Tiwahe initiative site.
Office of Tribal Justice Support. The Act provides $11 million above FY 2015 and the Administration’s request for flat funding “of which $1 million is to help implement the Violence Against Women Reauthorization of Act of 2013, and of which $10 million is to work with Indian tribes and tribal organizations to assess needs, consider options, and design, develop, and pilot tribal court systems for tribal communities including those communities subject to full or partial State jurisdiction under Public Law 83-280.” (Explanatory Statement)
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. 114-170, p. 38)
COMMUNITY AND ECONOMIC DEVELOPMENT
FY 2015 Enacted $35,996,000
FY 2016 Admin. Request $40,619,000
FY 2016 Enacted $40,619,000
The Community and Economic Development subactivities are: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight. (See attached: FY 2016 Enacted Budget Chart, p. 3)
Minerals & Mining Central Oversight. Congress provided the requested $4.5 million in new funding to “establish an Indian Energy Service Center staffed by BIA, the Office of Natural Resources Revenue, the Bureau of Land Management and the Office of the Special Trustee for American Indians to facilitate energy development in Indian Country… The Center will expedite leasing, permitting, and reporting for conventional and renewable energy on Indian lands.” (Admin. Request, p. IA-CED-1-2)
The House Report states:
The Bureau is directed to consult with affected tribes regarding staffing and related functions of the new office. (H. Rept. 114-170, p. 38)
The Explanatory Statement adds:
Energy development holds much promise for Indian communities and it is the Committees’ expectation that the new center will reduce much of the bureaucracy so that tribes may begin energy development without delay.
EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES
FY 2015 Enacted $227,692,000
FY 2016 Admin. Request $241,832,000
FY 2016 Enacted $229,662,000
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. (See attached: FY 2016 Enacted Budget Chart, p. 3)
Congress provided just $2 million of the Administration’s $12 million in requested increases for Assistant Secretary Support to “help address long-standing concerns tribes have expressed with the quality of data in Indian Country” (Admin. Request, p. IA-ADM-2)
BUREAU OF INDIAN EDUCATION
FY 2015 Enacted $810,531,000
FY 2016 Admin. Request $904,464,000
FY 2016 Enacted $852,367,000
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.
BIE Oversight and Reform.
The Explanatory Statement states:
The Committees remain concerned about recent Government Accountability Office (GAO) reports detailing problems within the K-12 Indian education system at the Department of Interior, in particular as they pertain to organizational structure, accountability, finance, health and safety, and ultimately student performance. As the Department takes steps to reform the system, the Secretary is reminded that future support from Congress will continue to be based in large part upon successful implementation of GAO report recommendations. In particular, consistent with GAO report 13-774, the Secretary is urged to reorganize Indian Affairs so that control and accountability of the BIE system is consolidated within the BIE, to present such reorganization proposal in the fiscal year 2017 budget request, and to submit to the Committees a corresponding updated workforce plan. Consistent with GAO testimonies 15-389T, 15-539T, 15-597T, and any subsequent reports, the Secretary is urged to personally oversee immediate actions necessary to ensure the continued health and safety of students and employees at BIE schools and facilities. (Explanatory Statement, Section G, p. 26)
The House Report states:
Indian education remains among the Committee’s top priorities because it is a fundamental trust responsibility and because 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. 114-170, p. 38)
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). The Secretary is urged to reorganize Indian Affairs so as to improve leadership stability and accountability within the BIE. (H. Rept. 114-170, p. 39-40)
The Senate Report states:
The administration is commended for its continued focus on tribal education programs, including efforts to improve collaboration between the Departments of the Interior and Education and to implement Executive Order 13592 to improve educational outcomes for American Indian and Alaska Native students. It is noted that the administration is proposing significant reforms to the Bureau of Indian Education [BIE] to improve the quality of education offered and address the persistent performance gap of students educated at BIE-funded schools. These proposed changes will require a restructuring of the Bureau that is not currently reflected in the fiscal year 2016 budget request and will necessitate continued consultation with tribes, as well as the Committees on Appropriations and the authorizing committees of jurisdiction.
The Committee is concerned the Office of the Assistant Secretary-Indian Affairs, which includes the Bureau of Indian Education [BIE], has not addressed the findings or implemented the recommendations in recent Government Accountability Office [GAO] reports and testimonies (GAO–13–774, GAO–14–121, GAO– 15–389T, and GAO–15–539T). These reports outline systemic problems with management of BIE schools, such as lack of oversight over school spending and facilities, including construction, operation, maintenance, and basic repair and upgrades needed to improve the condition of schools that serve Indian Country. The Committee stands ready to work with the administration on the appropriate steps forward and directs the Office of the Assistant Secretary-Indian Affairs to report back within 60 days after enactment of this act on how this Office is implementing the GAO recommendations. As part of this report, the Committee expects a detailed description of the administrative functions of each entity that has or will have a decisionmaking role in supporting and overseeing school facilities, including construction, maintenance, operation, and relevant activities for BIE schools. (S. Rept. 114-70, p. 38)
Juvenile Detention Education Grants. The Act provides $500,000 to restore juvenile detention education program grants.
Elementary and Secondary Programs (Forward Funded)
FY 2015 Enacted $536,897,000
FY 2016 Admin. Request $565,517,000
FY 2016 Enacted $553,458,000
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 2016 for these programs will become available for obligation on July 1, 2016, for SY 2016-2017. (See attached: FY 2016 Enacted Budget Chart, p. 2)
Education Enhancements. The Act provides flat funding relative to FY 2015 levels for this program. The Explanatory Statement suggests “The Bureau should consider transferring this line item to educational program management in the fiscal year 2017 budget request to more accurately account for personnel.” The Administration had requested $10 million above FY 2015 in order to “improve student achievement through the adoption of school improvement measures. The enhancement funding is to assist in the development and improvement of education departments that are administered by tribes, while seeking to expand the curriculum for areas like Native language immersion. School improvement efforts that could be adopted include establishing a tribally managed school reform plan.” (Admin. Request, p. IA-BIE-2)
Tribal Grant Support Costs. Notably, the Act provides $73.2 million for Tribal Grant Support Costs ($10.8 million above the FY 2015 level). The Explanatory Statement states that this increase is sufficient “to fully fund estimated tribal grant support costs.” The Administration’s request and the earlier House Report 114-170 had estimated that $75.3 million would fully fund tribal grant support costs for FY 2016. We assume that Congress must have received updated information since that time which lead them to determine that this lower number would provide full funding.
Tribal Education Department Grants. The Act provides $2 million for Tribal Education Departments. This is consistent with the Administration’s request and the House Report:
The recommendation includes $2,000,000 as requested for the development and operation of tribal departments or divisions of education as authorized in 25 U.S.C. 2020. (H. Rept. 114-170, p. 39)
Early Child and Family Development.
The Explanatory Statement states:
Within the funding provided for the Early Child and Family Development Program, the Bureau shall not reduce funding for currently operating Family and Child Education programs. The Bureau is directed to publish its report on the 2013-2014 school year internal review of early child and family development programs in order to improve program direction and transparency.
The House Report states:
The Committee recommends $15,520,000 for early child and family development, equal to the fiscal year 2015 enacted level. 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. 114-170, p. 38)
The Senate Report states:
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 children. In addition to education, these include healthcare, social service, child welfare and juvenile justice programs. The Committee would like to note the recent Senate passage of S24, the Alyce Spotted Bear and Walter Soboleff Commission on Native Children.
The Committee encourages the Bureau to work with other relevant Federal, State, local, and tribal organizations to begin the process of identifying ways to make programs more effective in serving Native Children. Within the funding provided for the Early Child and Family Development Program, the Bureau shall not reduce funding for currently operating Family and Child Education programs. (S. Rept. 114-70, p. 39)
Early Childhood Caries.
The House Report states:
The Bureau is encouraged to coordinate with the Indian Health Service to establish a pilot program integrating preventive dental care at schools within the Bureau system. (H. Rept. 114-170, p. 39)
The Senate Report concurs:
The Bureau, working with the Indian Health Service as appropriate, is also urged to consider integrating school-based preventative health services such as dental care into elementary schools in order to improve health outcomes of tribal students. (S. Rept. 114-70, p. 39)
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. 114-170, p. 39)
Restriction on Funding for Satellite Locations. The Act continues language restricting funding for satellite locations while providing the Secretary the ability to waive this restriction in certain instances. The House Report provides the following clarification regarding the intent of the provision:
The recommendation continues 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. (H. Rept. 114-170, p. 39)
Restriction on Funding for Elementary or Secondary Schools in Alaska. The Act continues language restricting funding for the establishment of elementary or secondary schools in Alaska.
Restriction on Funding for Expanded Grades. The Act continues language restricting funding for the expansion of grades and schools within the BIE system.
Restriction on Funding for Charter Schools. The Act continues language restricting funding for the establishment of charter schools. The House Report provides the following clarification regarding the intent of the provision:
The Committee continues language limiting the expansion of grades and schools in the BIE system, including charter schools. The intent of the language is to prevent already limited funds from being spread further to additional schools and grades. The intent is not to limit tribal flexibility at existing schools. Nothing in the bill is intended to prohibit a Tribe from converting a tribally-controlled school already in the BIE system to a charter school in accordance with State and Federal law. (H. Rept. 114-170, p. 39)
Elementary and Secondary Programs (Non-Forward Funded)
FY 2015 Enacted $119,195,000
FY 2016 Admin. Request $142,361,000
FY 2016 Enacted $134,263,000
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. (See attached: FY 2016 Budget Request, p. 3)
Facilities Operations. The Act provides $7 million of the Administration’s $10 million requested increase to “allow BIE to fund schools at 61 percent of calculated need to augment escalating utility and operations costs for an aging school system, based on the FY 2014-2015 calculated need of $107,736,000.” (Admin. Request, p. IA-BIE-2)
Facilities Maintenance. The Act provides $7 million of the Administration’s $10 million requested increase to “allow schools to complete additional cyclic preventive maintenance repairs under the $2,500 maintenance fund limit before the required repairs deteriorate further, requiring additional funds from the minor or major improvement and repair account when repair costs exceed $2,500.” (Admin. Request, p. IA-BIE-3)
Johnson-O’Malley. Congress rejected the Administration’s proposed $2.6 million increase above the FY 2015 level and instead would provide nearly flat funding.
The Explanatory Statement states:
Johnson O’Malley Assistance Grants are funded at $14,778,000. The Committees remain concerned about the accuracy of student counts. The Bureau is directed 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 2015 Enacted $69,793,000
FY 2016 Admin. Request $69,793,000
FY 2016 Enacted $74,893,000
This subactivity funds forward funded Tribal Colleges and Universities (See attached: FY 2016 Enacted Budget Chart, p. 2)
Forward funding for non-forward funded tribal colleges. The Act provides $5.1 million in new funding as a one-time appropriation to facilitate the transition of the two non-forward funded tribal technical colleges (United Tribes Technical College (UTTC) and Navajo Technical University (NTU)) to forward funding. This proposal was not in the Administration’s request. The Explanatory Statement urges:
This one-time increase provides a transition to forward funding, consistent with funding practices for most other tribal colleges. The Bureau is encouraged to include a proposal in the fiscal year 2017 budget request to transition the remaining tribal colleges and universities to forward funding.
The House Report states:
The Committee acknowledges the inconsistency that not all tribal colleges and universities are forward-funded so as to align with academic calendars instead of fiscal calendars. (H. Rept. 114-170, p. 39)
The Senate Report states:
This funding addresses the long-standing concerns of tribal college leaders by providing greater financial security to plan for the academic year through forward funding. The Committee believes there should be parity on the way all tribal colleges that receive assistance throughout the bill are funded and encourages the administration to look for ways for all the tribal colleges to be put on the same funding schedule. (S. Rept. 114-70, p. 38)
Post Secondary Programs (Non-Forward Funded)
FY 2015 Enacted $64,182,000
FY 2016 Admin. Request $69,412,000
FY 2016 Enacted $64,602,000
The two post-secondary schools in the BIE’s education system are Haskell Indian Nations University (Haskell), and the Southwestern Indian Polytechnic Institute (SIPI). BIE also provides grants to two tribal 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. The non-forward funded programs are: Haskell and SIPI; Tribal Colleges and Universities Supplements; Tribal Technical Colleges; Scholarships and Adult Education; Special Higher Education Scholarships; Science Post Graduate Scholarship Fund. (See attached: FY 2016 Enacted Budget Chart, p. 3)
Scholarships and Adult Education. Congress did not provide the $4.5 million increase the Administration had requested to “prioritize a third objective of the scholarship fund which is to increase students’ engagement with Science, Technology, Engineering, and Mathematics (STEM) related initiatives.” (Admin. Request, p. IA-BIE-3).
FY 2015 Enacted $20,464,000
FY 2016 Admin. Request $57,381,000
FY 2016 Enacted $25,151,000
The Education Management subactivity consists of Education Program Management and Information Technology. (See attached: FY 2016 Enacted Budget Chart, p. 3)
Congress largely differed from the $36.7 million increases requested by the Administration.
Education Program Management. The Act provides the $2.5 million increase requested by the Administration to “support the goals identified in the Blueprint.” (Admin. Request, p. IA-BIE-3-4)
Education IT. The Act provides a $2 million increase above FY 2015 but rejects the $34.2 million increase the Administration had requested: “(1) to procure computers and software necessary to administer online assessments; (2) in concert with funding from other sources (such as the E-Rate program) to increase bandwidth in schools to ensure digital delivery of these assessments; (3) to provide the resources and training that staff need to administer these online assessments effectively and efficiently.” (Admin. Request, p. IA-BIE-4)
CONTRACT SUPPORT COSTS
FY 2015 Enacted $246,000,000
FY 2016 Admin. Request $272,000,000
FY 2016 Enacted Such sums as may be necessary
Indian Self-Determination Fund
FY 2015 Enacted $5,000,000
FY 2016 Admin. Request $5,000,000
FY 2016 Enacted Such sums as may be necessary
The conferees adopted the Senate Committee-recommended approach to Contract Support Costs funding, creating a separate account for it and making it an indefinite appropriation at “such sums as may be necessary.” These provisions are specific to FY 2016.
The Act states:
For payments to tribes and tribal organizations for contract support costs associated with Indian Self-Determination and Education Assistance Act agreements with the Bureau of Indian Affairs for fiscal year 2016, such sums as may be necessary, which shall be available for obligation through September 30, 2017: Provided, That amounts obligated but not expended by a tribe or tribal organization for contract support costs for such agreements for the current fiscal year shall be applied to contract support costs otherwise due for such agreements for subsequent fiscal years: Provided further, That, notwithstanding any other provision of law, no amounts made available under this heading shall be available for transfer to another budget account. (Division G, p.737)
The Explanatory Statement notes:
The agreement includes new language establishing an indefinite appropriation for contract support costs estimated to be $277,000,000, which is an increase of $26,000,000 above the fiscal year 2015 level. The budget request proposed to fund these costs within the “Operation of Indian Programs” account through Contract Support and the Indian Self-Determination Fund budget lines. Under the new budget structure, the full amount tribes are entitled to will be paid and other programs will not be reduced in cases where the agency may have underestimated these payments when submitting its budget. Additional funds may be provided by the agency if its budget estimate proves to be lower than necessary to meet the legal obligation to pay the full amount due to tribes, but this account is solely for the purposes of paying contract support costs and no transfers from this account are permitted for other purposes. Similar to the President’s request for calculating contract support costs, this provision also applies to new and expanded Indian Self-Determination and Education Assistance Act agreements funded through the Indian Self-Determination Fund activity.
Fiscal Year 2016 Limitation. Section 406 of Division G of the Act provides that no FY 2016 funds may be used by the IHS or the BIA to pay prior year CSC or to repay the Judgement Fund for payment of judgments or settlements related to past year CSC claims.
The Act states:
SEC. 406. Amounts provided by this Act for fiscal year 2016 under the headings “Department of Health and Human Services, Indian Health Service, Contract Support Costs” and “Department of the Interior, Bureau of Indian Affairs and Bureau of Indian Education, Contract Support Costs” 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 2016 with the Bureau of Indian Affairs or the Indian Health Service: Provided, That such amounts provided by this Act are not available for payments of claims for contract support costs for prior years, or for repayments of payments for settlements or judgements awarding contract support costs for prior years.
Prior Year Fiscal Limitations. Section 405 of Division G of the Act continues by reference to Sections 405 and 406 of Division F of Public Law 113-235 (Consolidated and Further Continuing Appropriations Act, 2015) the comparable limitation as noted for FY 2016 above.
FY 2015 Enacted $128,876,000
FY 2016 Admin. Request $188,973,000
FY 2016 Enacted $193,973,000
The Construction budget includes: Education Construction; Public Safety and Justice Construction; Resources Management Construction; and Other Program Construction/ General Administration.
Maintenance Shortfalls. The House Report states:
The Bureau is encouraged to request full funding for facilities maintenance needs in future budget requests.” (H. Rept. 114-170, p. 40)
FY 2015 Enacted $74,501,000
FY 2016 Admin. Request $133,245,000
FY 2016 Enacted $138,000,000
The Education Construction subactivities are: Replacement School Construction; Employee Housing Repair; and Facilities Improvement and Repair. The Administration had proposed to bring back the Replacement Facility Construction line item and the Act did so. (See attached: FY 2016 Enacted Budget Chart, p. 4)
The amount the Act provides exceeds the Administration’s request for substantial increases above FY 2015 for all Education Construction subactivities. The amount provided for the Replacement School Construction subactivity is enough to finally complete the construction of the final two schools on the 2004 replacement priority list. In addition, Congress urges the Administration to create a new replacement priority list and engage in long range planning with regard to facilities replacement, repair and financing.
The Explanatory Statement states:
This appropriation completes the 2004 replacement school construction list and provides $8,000,000 towards planning and design of schools on the next list, as requested. The Committees encourage the Administration to continue work to work with tribal leaders in a transparent manner to complete the next list in time for fiscal year 2017 budget consideration.
This appropriation also restores the replacement facilities construction line item, as requested. Serious health and safety hazards exist at BIE facilities across the country, including the Bug-O-Nay-Ge-Shig School of the Leech Lake Band of Ojibwe. The Secretary is directed to develop a comprehensive plan to work with tribes to repair and replace all substandard educational facilities, especially facilities being used for purposes other than those for which they were built.
Combined, these appropriations begin to restore the education construction budget which has declined significantly in recent years. Regardless of whether tribes choose to exercise their self-determination rights to run schools in the BIE system, the federal government retains ownership pf the schools and the responsibility to ensure that the schools are properly maintained, repaired, improved, and ultimately replaced at the end of their lifespan, according to best practices across education systems nationwide. That is why the Committees are concerned that the current approach to construction, which focuses on a subset of schools in the worst condition and requires those schools to submit applications and compete for funding. Going forward, the Committees believe that the Bureau should conduct comprehensive, long-term facilities planning and expect the Bureau to model its efforts on the process used by the Department of Defense to produce its 2009 report to Congress on modernizing and improving all DOD schools.
The Committees strongly support efforts to identify innovative alternative financing options to accelerate the pace of repair and replacement of the Bureau of Indian Education schools, including the use of bonding authority. The Committees urge the Department to explore, in consultation with the Department of the Treasury, the best available approach to meet repayment obligations and to fund the construction, rehabilitation, and repair of Bureau of Indian Education schools.
This agreement includes a one-time funding amount of $5,000,000 above the President’s request for BIE facilities and improvement repair projects that can be completed promptly and to address the backlog of critical deferred maintenance projects.
The House Report states:
Serious health and safety hazards exist at BIE facilities across the country, including the Bug-O-Nay-Ge-Shig School of the Leech Lake Band of Ojibwe. The Secretary is directed to develop a comprehensive plan to work with Tribes to repair and replace all substandard educational facilities. The Secretary is urged to consider alternative funding mechanisms to supplement appropriations for replacing schools and facilities, including the use of bonds.” (H. Rept. 114-170, p. 40)
The Senate Report states:
The Committee understands the significant infrastructure needs and strongly urges the administration to work with tribal leaders in a transparent manner on developing the new school construction list. Further, the Committee stands ready to work with the administration and tribes to develop a strategy that provides safe, functional, and accessible facilities for schools. (S. Rept. 114-70, p. 40)
Replacement School Construction. The Act provides the $25.3 million above FY 2015 that was requested by the Administration to “replace both Little Singer Community School and Cove Day School on the Navajo Reservation in Arizona and for planning and design for future schools. This funding will allow BIA to bring to good condition all of the 14 schools on the Education Facilities Replacement Construction Priorities List as published in the Federal Register on March 24, 2004. (Admin. Request, p. IA-CON-ED-1).
Employee Housing Repair. The Act provides the $3.7 million above FY 2015 that was requested by the Administration to “correct priority deficiencies at education employee housing, beginning with critical safety work items. Correction of these items is critical for IA’s compliance with American with Disabilities Act (ADA) requirements; Environmental Protection Agency (EPA) requirements; National Fire Protection Agency (NFPA); and other Life Safety code requirements …This increase is complemented by a $10.0 million request in the Department of Housing and Urban Development budget for a set aside to address teacher housing needs near schools in the BIE school system.” (Admin. Request, p. IA-CON-ED-3).
Replacement Facility Construction. The Act provides the $11.9 million in new funding that was requested by the Administration to “reconstitute the Facilities Component Replacement Program (FCRP) after several years. This program is an important part of BIA’s plan to bring schools into good condition. The FCRP funds replacement of individual buildings when it is more cost effective to replace rather than repair a building on school campuses but other buildings can be brought to or maintained in good condition with improvement and repair projects. Projects for use of the FCRP are in the process of being identified.” (Admin. Request, p. IA-CON-ED-3).
Facilities Improvement and Repair. The Act provides a total of $73.2 million. This is $5 million above the Administration’s $17.7 million increase requested by the Administration. The Administration requested that these funds be directed to “schools that rank highest in a ranking of schools with critical health and safety deficiencies. The BIE school system buildings currently have a $377 million deferred maintenance backlog.” (Admin. Request, p. IA-CON-ED-3)
PUBLIC SAFETY & JUSTICE (PS&J) CONSTRUCTION
FY 2015 Enacted $11,306,000
FY 2016 Admin. Request $11,306,000
FY 2016 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. (See attached: FY 2016 Enacted Budget Chart, p. 4)
Regional Detention Centers. The House Report states:
The Bureau is encouraged 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. 114-170, p. 40)
RESOURCES MANAGEMENT CONSTRUCTION
FY 2015 Enacted $34,427,000
FY 2016 Admin. Request $34,488,000
FY 2016 Enacted $34,488,000
The Resources Management Construction subactivities are: Irrigation Project Construction; Engineering and Supervision; Survey and Design; Federal Power and Compliance; and Dam Projects. (See attached: FY 2016 Enacted Budget Chart, p. 4)
OTHER PROGRAM CONSTRUCTION/ GENERAL ADMINISTRATION
FY 2015 Enacted $8,642,000
FY 2016 Admin. Request $9,934,000
FY 2016 Enacted $9,934,000
The Other Program Construction subactivities are: Telecommunications Improvement and Repair; Facilities/Quarters Improvement and Repair; and Construction Program Management. (See attached: FY 2016 Enacted Budget Chart, p. 4)
Construction Program Management. The Act provides the $1.2 million above FY 2015 that was requested by the Administration for “the completed portions of the Fort Peck Reservation Rural Water System construction project requiring Operations and Maintenance (O&M), as authorized by the Congress. As construction by the Bureau of Reclamation progresses, completed portions will require O&M on an annual basis.” (Admin. Request, p. IA-CON-OTH-1)
INDIAN LAND AND WATER CLAIMS SETTLEMENTS AND MISCELLANEOUS PAYMENTS TO INDIANS
FY 2015 Enacted $35,655,000
FY 2016 Admin. Request $67,656,000
FY 2016 Enacted $49,475,000
(See attached: FY 2016 Enacted Budget Chart, p. 4)
The Explanatory Statement provides “The Committees appreciate the importance of settling the numerous land and water settlements, and direct the Department to submit a spending plan to the Committees within 90 days of enactment of this Act for how it plans to allocate the funds provided by this bill for the specific settlements.”
INDIAN GUARANTEED LOAN PROGRAM
FY 2015 Enacted $7,731,000
FY 2016 Admin. Request $7,748,000
FY 2016 Enacted $7,748,000
(See attached: FY 2016 Enacted Budget Chart, p. 4)
The Act provides the slight increase that was requested by the Administration. Regarding the total funding level requested, the Administration explained “FY 2016 funding will support approximately $113.8 million in new loans in Indian Country, issued under the Loan Guarantee, Insurance and Interest Subsidy program, part of the Indian Financing Act of 1974 (P.L. 93-262), as amended. This program addresses the historic reluctance of private lenders to make business financing available to Indian borrowers on commercially reasonable terms, due to real or perceived concerns with inadequate collateral, poor or minimal credit history, and unclear jurisdiction.” (Admin. Request, p. IA-LOAN-4)
OTHER RELATED AGENCIES
OFFICE OF NAVAJO-HOPI INDIAN RELOCATION
FY 2015 Enacted $ 7,341,000
FY 2016 Admin. Request $ 8,400,000
FY 2016 Enacted $15,000,000
NATIONAL PARK SERVICE
TRIBAL HISTORIC PRESERVATION
FY 2015 Enacted $8,900,000
FY 2016 Admin. Request $9,900,000
FY 2016 Enacted $9,900,000
If we may provide additional information or assistance regarding FY 2016 INDIAN AFFAIRS, OTHER RELATED AGENCIES, or NATIONAL PARK SERVICE appropriations, please contact us at the information below.