In this Memorandum we report on highlights of the final FY 2021 Enacted appropriations for the Indian Affairs budget and related accounts. President Trump signed the Consolidated Appropriations Act, 2021 into law (P.L. 116-260, “the Act”) on December 27, 2020. The Act includes both federal discretionary funding for FY 2021, as well as additional provisions for COVID-19 relief. This Memorandum reports only on regular FY 2021 appropriations.
Indian Affairs (IA) Overview
The Indian Affairs budget encompasses the Bureau of Indian Affairs (BIA), the Bureau of Indian Education (BIE), and the Office of the Special Trustee for American Indians (OST). For FY 2021, most Indian Affairs accounts were continued at FY 2020 Enacted levels with a number of targeted increases specified in the Joint Explanatory Statement, which accompanies the Act. The Act provides $3.5 billion for the Indian Affairs budget, an increase of $281.6 million above the FY 2020 Enacted level and a full $544.3 million above what was requested by the Trump Administration. Most notably for the FY 2021 Indian Affairs budget, Congress:
- Created “Payments for Tribal Leases” as a separate account with an indefinite appropriation (like Contract Support Costs) within the BIA budget to pay for full service leases entered into pursuant to section 105(l) of the Indian Self-Determination and Education Assistance Act (ISDEAA), or pursuant to the Tribally Controlled Schools Act (P.L. 100-297);
- Continued Contract Support Costs (CSC) as a separate account with an indefinite appropriation;
- Continued to provide what is estimated to be full funding for Tribal Grant Support Costs for BIE-funded schools operated pursuant to the Tribally Controlled Schools Act;
- Requested a detailed report looking back at ten fiscal years of budget requests from the BIE on teacher and counselor pay parity with counterparts in the Department of Defense Education Activity;
- Rejected the Trump Administration’s request to zero out $139.4 million in funding for School Replacement Construction; and
- Rejected the Trump Administration’s request to transfer the funding and functions of OST to stand up a new “Bureau of Trust Funds Administration” (BTFA).
Additionally, Congress weighed in on the epidemic of missing, trafficked, and murdered Indigenous women and on the importance of the Tiwahe Initiative.
The FY 2021 Appropriations Act (P.L. 116-260, Indian Affairs begins on p. 309) and is accompanied by the House and Senate’s Joint Explanatory Statement (Indian Affairs begins on p. H8534) and the House Appropriations Committee’s report (H. Rept. 116-448, Indian Affairs begins on p. 53). Because the Senate Appropriations Committee did not hold a vote on their draft bill and report, there is not a Senate Committee report to accompany this Act. The Joint Explanatory Statement incorporates by reference certain provisions from the Senate Appropriations Committee’s report from the previous fiscal year (FY 2020): “Language contained in Senate Report 116-123 regarding Government Accountability Office (GAO) high risk management challenges; GAO recommendations and funding of road maintenance; funding for all Tribes with resource challenges; transboundary rivers; protecting Indian trust resources from wildfire and threats; Office of Wildland Fire; inventory of wells; GAO recommendations and barriers to resource development; and Public Law 102-477 is restated.”
Below, we describe highlights from each budget activity. A chart with funding details by sub-activity is attached for further reference.
REPROGRAMMING GUIDELINES
“… no reprogramming shall be implemented without the advance approval of the House and Senate Committees on Appropriations in accordance with the procedures included in this Act. The agencies funded in this Act are reminded that these reprogramming guidelines are in effect, and must be complied with, until such time as the Committees modify them through bill or report language.” (Joint Explanatory Statement)
ADMINISTRATIVE PROVISIONS
The agreement continues to allow transfers of Tribal priority allocations funds between BIA Operation of Indian Programs and BIE Operation of Indian Education Programs initiated at the request of an Indian Tribe. This authority does not apply to any other transfers, including those to separate the BIA and the BIE.
BUREAU OF INDIAN AFFAIRS
FY 2020 Enacted $2,032,124,000
FY 2021 Admin. Request $1,907,881,000
FY 2021 House $2,183,938,000
FY 2021 Enacted $2,159,384,000
The Bureau of Indian Affairs budget is composed of: Operation of Indian Programs, Contract Support Costs, Payments for Tribal Leases, Construction, Indian Land and Water Claim Settlements, and the Indian Guaranteed Loan Program Account.
OPERATION OF INDIAN PROGRAMS
FY 2020 Enacted $1,577,110,000
FY 2021 Admin. Request $1,446,694,000
FY 2021 House $1,641,086,000
FY 2021 Enacted $1,616,532,000
Budget activities within the Operation of Indian Programs 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.
Tiwahe. “The bill continues the Tiwahe Initiative at fiscal year 2020 levels across all programs and activities with funding distributed in the same amounts to the same recipients, including the funding to support women and children’s shelters. There is concern that Tiwahe funding was not properly documented or distributed as outlined in the Office of Inspector General report published in 2018; therefore, the Bureau of Indian Affairs (BIA) is directed to submit the final reports as directed by House Report 115-765 and Senate Report 116-123 within 90 days of enactment of this Act. The bill provides that $1,000,000 of funds provided for Assistant Secretary Support within Executive Direction and Administrative Services is not available for obligation until Indian Affairs provides the requested Tiwahe reports to the Committees.” (Joint Explanatory Statement)
Missing and Murdered Indigenous Women. “The Committees are concerned about the crisis of missing, trafficked, and murdered indigenous women. Native American women face high rates of violence and the lack of data on the number of women and girls who go missing or murdered further complicates the Nation’s ability to address the crisis. The agreement includes both funding and report language under the Bureau of Indian Affairs and the Indian Health Service in order to improve the Federal response to this crisis.” (Joint Explanatory Statement)
Tribal Data. The Committee is disturbed by Indian Affairs’ recent leak of sensitive Tribal data and expects the Inspector General to submit a report within 60 days of enactment of this Act on actions taken to correct the activity leading to the leak, whether the leak was intentional, actions taken to ensure the leak does not happen again and to report any disciplinary actions taken against employees responsible for the leak. (H. Rept. 116-448)
Tribal Government
FY 2020 Enacted $334,179,000
FY 2021 Admin. Request $337,351,000
FY 2021 House $336,887,000
FY 2021 Enacted $341,031,000
The Tribal Government sub-activities are: Aid to Tribal Government; Consolidated Tribal Government Program; Self-Governance Compacts; New Tribes; Small and Needy Tribes; Road Maintenance; and Tribal Government Program Oversight.
The total for Road Maintenance reflects an increase of $500,000 above the FY 2020 amount designated to improve the condition of unpaved roads and bridges used by school buses transporting students. The House Report directs the BIA to report to the Committee within 90 days of enactment of the Act on the distribution of funds provided for school bus routes. The House Report also directs the BIA to report to the Committee within 90 days of the enactment of the Act on how formula funding levels on a tribe by tribe basis have changed over the past 16 years.
Roads Used by Customs and Border Protection (CPB). The Act, under the CPB budget, provides that up to $5 million “may be transferred to the Bureau of Indian Affairs for the maintenance and repair of roads on Native American reservations used by the U.S. Border Patrol.” The Act authorizes the BIA to accept this transfer of funds “to supplement any other funding available for reconstruction or repair of roads owned by the Bureau of Indian Affairs as identified on the National Tribal Transportation Facility Inventory, 23 U.S.C. 202(b)(1).”
Human Services
FY 2020 Enacted $155,685,000
FY 2021 Admin. Request $ 87,490,000
FY 2021 House $166,755,000
FY 2021 Enacted $161,226,000
The Human Services sub-activities are: Social Services; Welfare Assistance; Indian Child Welfare Act (ICWA); Housing Improvement Program (HIP); Human Services Tribal Design; and Human Services Program Oversight.
Welfare Assistance. Congress rejected the Trump Administration’s request to cut $61.1 million in funding from Welfare Assistance.
ICWA Section 202. Of the amount appropriated for the Indian Child Welfare Act sub-activity, a $1 million set-aside is continued to implement off-reservation programs authorized by section 202 of the Indian Child Welfare Act (25 U.S.C. § 1932). The House Report directs the BIA to report to the Committee within 90 days of enactment of the Act on the distribution of funds provided for off-reservation programs and to identify any challenges to obligating funds.
Housing Improvement Program. Congress rejected the Trump Administration’s request to zero out funding for the Housing Improvement Program.
Funding Allocations. “The Committees remain concerned about previous transfers in funding for welfare assistance, social services, and the Indian Child Welfare Act (Public Law 95-608), and direct the Bureau to brief the Committees within 30 days of enactment of this Act regarding the formula and funding allocation for these activities.” (Joint Explanatory Statement)
Trust–Natural Resources Management
FY 2020 Enacted $226,819,000
FY 2021 Admin. Request $209,726,000
FY 2021 House $240,369,000
FY 2021 Enacted $258,842,000
The Trust–Natural Resources Management sub-activities are: Natural Resources, general; 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, and Parks; Mineral and Mining; and Resource Management Oversight. (The Act provides for the transfer of the Minerals and Mining sub-activity from the Community and Economic Development activity, with the expectation that there will be no reduction or relocation of Full Time Equivalent positions (FTEs).
Indian Youth Service Corps. Within Natural Resources, $1 million is provided for the Indian Youth Service Corps, authorized by section 9003 of the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019.
Elwha River Section 7 Implementation Completion. Funding to implement section 7 of the Elwha River Ecosystem and Fisheries Restoration Act (Public Law 102-495) has been completed and that reduction of $2 million is reflected in the total.
Illegal Dumping. “The Committee is concerned about illegal dumping and other environmentally harmful activity that occurs on allotted trust land, specifically in the Pacific Region. The Committee encourages the Agency to use available resources to assist Tribes in enforcing environmental codes and ordinances, as well as support Tribal consortia protecting against illegal dumping.” (H. Rept. 116-448)
Law Enforcement Needs for Treaty Sites. Of the amount appropriated for the Rights Protection Implementation sub-activity, there is a $1 million increase above the FY 2020 Enacted level for law enforcement needs for treaty sites on the Columbia River.
Everglades. The FY 2020 funding level is continued.
Pacific Salmon Treaty. The FY 2020 funding level is continued.
Columbia River Fishing Sites Improvement. “The Committees are aware that the Bureau is in the process of analyzing additional funding requirements needed to support the sites and implement the Columbia River In-Lieu and Treaty Fishing Access Sites Improvement Act (Public Law 116-99), and expect the Bureau to provide a report within 90 days of enactment of this Act that details how the increased funds provided by Congress in fiscal years 2020 and 2021 were allocated and what additional resources are necessary to ensure adequate infrastructure, security, and sanitation at the sites in future fiscal years.” (Joint Explanatory Statement)
Salmon and Steelhead Habitat Study Set-aside. Within the amount appropriated for the Tribal Management Development program, there is $830,000 to advance the understanding of salmon and steelhead habitat.
Tribal Buffalo Herds Set-aside and Funding Plan. The agreement continues funding at FY 2020 levels to develop Tribal buffalo herds and support related activities. Further, the House Report states that, “The Committee expects Indian Affairs to examine the historical funding provided for buffalo preservation and management in comparison to other Native food activities, such as the preservation and management of fish. In fiscal year 2020, the Committee directed Indian Affairs to compare historical funding provided to Native food preservation and management activities and a plan to ensure parity among Native food activities to the Committee within 90 days of enactment of that Act. The Committee has not received this information and directs Indian Affairs to provide this information within 90 days of enactment of this Act.”
Alaska Subsistence. The agreement continues funding at FY 2020 levels for pilot projects and programs for Alaska subsistence activities as further outlined in Senate Report 116-123. “The Bureau is expected to continue pilot projects and programs for Alaska subsistence and keep the Committees apprised of changes in the distribution methodology.” (Joint Explanatory Statement)
Report on Fish Hatchery Funding. “The Committees note that BIA has not yet complied with a directive included in Senate Report 116-123 to produce and make publicly available a list of Tribes that have established fishing rights and operate fish hatcheries but do not currently receive fish hatchery operations funding. The Committees expect the Bureau to transmit such list to the Committees within 60 days of enactment of this Act.” (Joint Explanatory Statement)
Tolowa Dee-Ni’ Tribe Reserved Fishing Right. “The Bureau is urged to continue to work with the Tolowa Dee-Ni’ Tribe and the State of California regarding a reserved fishing right.” (Joint Explanatory Statement)
Cooperative Landscape Conservation. Congress rejected the Trump Administration’s request to zero out funding for Cooperative Landscape Conservation.
Priorities for Climate Change and Resilience.
“The Committees are particularly concerned about coastal Tribal communities and Alaska Native Villages that face severe challenges to their long-term resilience due to climate change impacts and expect the Bureau to prioritize the needs of Tribal communities that face significant threats to public safety, sacred sites, and natural resource values, including threats to endangered or threatened species.” (Joint Explanatory Statement)
“Consistent with the Federal government’s treaty and trust obligations, the Committee directs BIA to coordinate with all relevant Federal agencies—including but not limited to the Federal Emergency Management Agency, the Army Corps of Engineers, the National Oceanic and Atmospheric Administration, and the Departments of Housing and Urban Development, Health and Human Services, and Agriculture—to leverage resources to support a whole of government approach to working with at-risk tribes to identify and expedite the delivery of resources and technical assistance necessary to support mitigation and relocation efforts.” (H. Rept. 116-448)
Chaco Canyon. “The agreement includes $600,000 for the Assistant Secretary for Indian Affairs to continue its support for ongoing Tribal cultural resource investigations in the Chaco Canyon region of the Southwest, as instructed in the explanatory statement accompanying the Further Consolidated Appropriations Act, 2020 (Public Law 116-94).” (Joint Explanatory Statement)
Trust–Real Estate Services
FY 2020 Enacted $138,097,000
FY 2021 Admin. Request $124,190,000
FY 2021 House $144,321,000
FY 2021 Enacted $140,663,000
The Trust–Real Estate Services sub-activities are: Trust Services; Navajo-Hopi Settlement Program; Probate; Land Title and Records Offices; Real Estate Services; Land Records Improvement; Environmental Quality; Alaska Native Programs; Rights Protection; and Trust-Real Estate Services Oversight.
From the amount appropriated for Trust–Real Estate Services the Act provides the following increases:
- an additional $500,000 is for Environmental Quality Projects;
- an additional $400,000 is for Water Rights Negotiation; and
- an additional $300,000 is for Rights Protection Litigation Support.
Recruitment and Retention Challenges. “In addition to the agency-wide staffing and vacancies report, the Bureau is directed to brief the Committees within 180 days of enactment of this Act regarding pay disparities for real estate and appraisal personnel between the Bureau and other Federal agencies.” (Joint Explanatory Statement)
Office of Trust Services Lack Standard Procedure for Receipt of Paperwork. “Given these ongoing issues, the BIA shall report to the Committees within 90 days of enactment of this Act on the standard procedure being established to confirm receipt of paperwork received through the mail and ensure it is forwarded to the appropriate recipient. Additionally, the report shall cover any inter-agency coordination that is being updated to comply with the new procedure.” (Joint Explanatory Statement)
Public Safety and Justice
FY 2020 Enacted $434,326,000
FY 2021 Admin. Request $423,722,000
FY 2021 House $455,346,000
FY 2021 Enacted $448,722,000
The Public Safety and Justice sub-activities are: Law Enforcement; Tribal Courts; and Fire Protection.
Missing and Murdered Indigenous Women. Joint Explanatory Statement states:
- “Language contained in the explanatory statement to accompany the Further Consolidated Appropriations Act, 2020 (Public Law 116-94) regarding coordination and data collection among law enforcement is restated.
- Within Criminal Investigations and Police Services, an additional $2 million is provided to solve Missing and Murdered Indigenous Women cold cases, an additional $1 million is for background checks to hire more law enforcement officers.
- The recommendation includes $19,783,000 for Law Enforcement Special Initiatives, of which an additional $1 million is to purchase equipment to collect and preserve evidence at crime scenes throughout Indian Country; $750,000 is to increase the number of Victim Witness Specialists; and $3 million is to address missing and murdered indigenous women, as requested by the Trump Administration.
- The recommendation continues $2.5 million to focus on advanced training needs to help address the crisis for missing, trafficked, and murdered indigenous women. These activities shall focus on training for detectives, forensics, and other specialized courses in an effort to provide greater access to programs for Indian Country law enforcement personnel to create safer communities. This advanced training shall not duplicate those activities at the Indian Police Academy, which continues as the central justice services training location for Tribal law enforcement, including for entry-level law enforcement officers, agents and corrections officers, and the agreement provides full funding for these programs.”
Tribal Justice Support. The Joint Explanatory Statement provides that, “within Tribal Justice Support, $3 million is continued for activities to implement and ensure compliance with the Violence Against Women Act and $15 million is to address the needs of Tribes affected by Public Law 93-280 and as further outlined in the Senate Report 116-123.” (The Trump Administration had requested to zero out these two budget items.) Further, the Joint Explanatory Statement provides an additional $500,000 for facilities operations and maintenance to supplement fiscal year 2020 funding levels for facilities located on Indian lands and an additional $2 million for Tribal Courts (TPA).” (Joint Explanatory Statement)
NAGPRA Enforcement. “…an additional $500,000 is for Law Enforcement to implement the Native American Graves Protection and Repatriation Act (NAGPRA).” (Joint Explanatory Statement)
“The agreement includes $106,407,000 for Detention/Corrections. The amount for this program is reduced by $2.5 million to account for savings from unstaffed regional detention facilities but the program recommendation also includes an additional $1 million to supplement fiscal year 2020 funding levels to hire additional detention/corrections staff at facilities located on Indian lands and an additional $1 million to expedite background checks for detention facilities.” (Joint Explanatory Statement)
Community and Economic Development
FY 2020 Enacted $52,529,000
FY 2021 Admin. Request $27,472,000
FY 2021 House $54,382,000
FY 2021 Enacted $24,472,000
The Community and Economic Development sub-activities are: Job Placement and Training; Economic Development; and Community Development Oversight. As noted earlier in this Memorandum, the Minerals and Mining sub-activity was transferred to the Trust–Natural Resources Management activity.
Of the amount appropriated for Community and Economic Development:
- $13.5 million for Job Placement and Training;
- $3.2 million for Economic Development, of which $500,000 is for business incubators; and
- $7.6 million for Community Development Central Oversight, of which an additional $500,000 is to implement the NATIVE Act and $500,000 is for the HEARTH Act.
Native Language Instruction and Immersion Programs for Native Students not in the BIE System. “The agreement continues $3 million for grants to federally recognized Indian Tribes and Tribal organizations to provide native language instruction and immersion programs to Native students not enrolled at BIE schools, including those Tribes and organizations in states without Bureau-funded schools.” (Joint Explanatory Statement)
Executive Direction and Administrative Services
FY 2020 Enacted $235,475,000
FY 2021 Admin. Request $236,743,000
FY 2021 House $243,026,000
FY 2021 Enacted $241,576,000
The Executive Direction and Administrative Services sub-activities 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.
Assistant Secretary Support. The Act provides $10.7 million for Assistant Secretary Support, which includes:
- $400,000 to implement the PROGRESS Act; and
- $1 million is withheld until the Secretary provides the requested Tiwahe reports. The Committees intend that no other programs or activities will be reduced to offset the decreased funds until the reports are provided. (Joint Explanatory Statement)
The Joint Explanatory Statement rejects the reduction to Labor-Related payments.
CONTRACT SUPPORT COSTS
FY 2020 Enacted Such sums as may be necessary
(Estimated: $271,000,000)
FY 2021 Admin. Request Such sums as may be necessary
(Estimated: $335,000,000)
FY 2021 House Such sums as may be necessary
(Estimated: $335,000,000)
FY 2021 Enacted Such sums as may be necessary
(Estimated: $335,000,000)
The Trump Administration requested and Congress continued Contract Support Costs (CSC) as an indefinite appropriation at “such sums as may be necessary” estimated to be $335 million for FY 2021. (This account is comprised of Contract Support (such sums as may be necessary, estimated to be: $330 million) and the Indian Self-Determination Fund ($5 million)). The Act includes language making these funds available for obligation through September 30, 2022, and prohibiting the transfer of funds to any other account for any other purpose.
PAYMENTS FOR TRIBAL LEASES
FY 2020 Enacted $-0-
FY 2021 Admin. Request Such sums as may be necessary
(Estimated: $21,593,000)
FY 2021 House Such sums as may be necessary
(Estimated: $21,593,000)
FY 2021 Enacted Such sums as may be necessary
(Estimated: $21,593,000)
Tribal Lease Payments. The Act includes language establishing an indefinite appropriation for payment of Tribal leases under section 105(l) of the Indian Self-Determination and Education Assistance Act (ISDEAA), which are estimated to be $21,593,000 in FY 2021. The terms include amounts necessary to fully fund such costs without the need for reprogramming, if actual costs exceed the current estimate. The Act includes language making these funds available for obligation through September 30, 2022, and prohibiting the transfer of funds to any other account for any other purpose.
The Joint Explanatory Statement speaks in detail about the creation of this new indefinite appropriation account in light of litigation, which “appear to create an entitlement to compensation for 105(l) leases”. The Joint Explanatory Statement directs the Department of Interior and the Indian Health Service to develop guidelines relating to lease costs, in consultation with Tribes and Tribal organizations. It states:
“The Committees also note that payments for 105(l) leases directly resulting from decisions in the case of Maniilaq Ass’n v. Burwell in both 2014 (72 F. Supp. 3d 227 (D.D.C. 2014)) and 2016 (70 F. Supp. 3d 243 (D.D.C. 2016)) appear to create an entitlement to compensation for 105(l) leases that is typically not funded through discretionary appropriations, and the Committees encourage discussion regarding the funding classification to continue. The Committees are aware of recent litigation in Federal courts regarding what constitutes reasonable lease costs under the 105(l) program. As part of the consultation required by language in Title IV of this Act, the Indian Health Service and the Department of the Interior are expected to consult with Tribes and Tribal organizations regarding agency regulations and policies that determine the amount of space and other standards necessary to carry out federal programs under a section 105(l) lease, and to ensure that such regulations and policies are consistent, transparent and clearly communicated to affected Tribes. The Service and the Department are expected to periodically update the Committees on the status of the consultation.”
CONSTRUCTION
FY 2020 Enacted $126,591,000[1]
FY 2021 Admin. Request $ 59,759,000
FY 2021 House $128,818,000
FY 2021 Enacted $128,818,000
The Construction sub-activities are: Public Safety and Justice Construction; Resources Management Construction; and Other Program Construction/ General Administration.
“All programs, projects, and activities are maintained at fiscal year 2020 levels, except for requested fixed cost increases and transfers, or unless otherwise specified below.” (Joint Explanatory Statement)
“Green Infrastructure. With the funds provided, the agreement continues to encourage the Department to include green infrastructure as stated in the explanatory statement accompanying Public Law 116-94 and to submit a report to the Committees on Appropriations within 90 days of enactment of this Act describing how the Department incorporated these activities.” (Joint Explanatory Statement)
Public Safety & Justice (PS&J) Construction
FY 2020 Enacted $42,811,000
FY 2021 Admin. Request $10,441,000
FY 2021 House $42,811,000
FY 2021 Final $42,811,000
The Public Safety & Justice Construction sub-activities are: Facilities Replacement/New Construction; Employee Housing; Facilities Improvement and Repair; Fire Safety Coordination; and Fire Protection. The amount appropriated includes:
- $25.5 million for Facilities Replacement and New Construction;
- $4.4 million for Employee Housing;
- $9.3 million for Facilities Improvement and Repair;
- $171,000 for Fire Safety Coordination; and
- $3.2 million for Fire Protection.
Distribution of Funds and Consultation and Planning for Improvement. “The Bureau is expected to distribute funds provided in this Act to expeditiously complete construction of adult detention center projects that were previously awarded. Remaining amounts should be considered available for all public safety and justice facilities, consistent with previous direction. Direction is reiterated for the Bureau to: (1) produce and maintain a plan to improve public safety and justice facilities in poor condition; and (2) provide a draft plan within 120 days of enactment of this Act with next steps including Tribal consultation.” (Joint Explanatory Statement)
Condemned Facilities. “The Bureau is directed to report back within 90 days of enactment of this Act with a comprehensive list of condemned facilities that need to be replaced. Additionally, the Bureau is directed to provide a briefing to the House and Senate Committees on Appropriations on its long-term plans for the replacement of the “Building 86″ public safety facility operated by the San Carlos Apache Tribe within 90 days of enactment of this Act.” (Joint Explanatory Statement)
Resources Management Construction
FY 2020 Enacted $71,258,000
FY 2021 Admin. Request $36,219,000
FY 2021 House $71,408,000
FY 2021 Enacted $71,408,000
The Resources Management Construction sub-activities are: Irrigation Project Construction; Engineering and Supervision; Survey and Design; Federal Power and Compliance; and Dam Projects. The amount appropriated includes:
- $28.7 million for Irrigation Project Construction, which restores funding for the Navajo Indian Irrigation Project to the fiscal year 2020 level and provides fixed costs, and $10 million is for projects authorized by the WIIN Act;
- $2.6 million for Engineering and Supervision;
- $1 million for Survey and Design;
- $656,000 for Federal Power Compliance; and
- $38.3 million for Dam Safety and Maintenance.
WIIN Act Authorized Projects. “The Committees expect the funds designated for WIIN Act (Public Law 114-322) activities will be deposited into the Indian Irrigation Fund and fund those projects authorized by Public Law 114-322.” (Joint Explanatory Statement)
Dam Safety. Language contained in Senate Report 116-123 regarding dam safety is restated. (Joint Explanatory Statement)
Colorado River Indian Tribes. “The Committees are concerned about recent issues with diversion calculations and other management decisions by the Bureau of Indian Affairs and the Bureau of Reclamation which impacted Colorado River Indian Tribes’ access to water resources in fiscal year 2020. The Committees expect the Bureau to improve coordination with the Bureau of Reclamation and with Colorado River Indian Tribes, and to finalize new standard operating procedures for the Colorado River Irrigation Project by no later than December 31, 2020, to ensure that the projected year-end diversions are consistent and based upon the best available data so that the Tribes may make use of their full water allocation.” (Joint Explanatory Statement)
Other Program Construction/ General Administration
FY 2020 Enacted $14,522,000
FY 2021 Admin. Request $13,099,000
FY 2021 House $14,599,000
FY 2021 Enacted $14,599,000
The Other Program Construction sub-activities are: Telecommunications Improvement and Repair; Facilities/Quarters Improvement and Repair; and Construction Program Management. The amount appropriated includes:
- $1.4 million for Telecommunications;
- $3.9 million for Facilities and Quarters; and
- $9.2 million for Program Management, which includes $3.2 million to continue the project at Fort Peck.
Indian Land and Water Claims Settlements and
Miscellaneous Payments to Indians
FY 2020 Enacted $45,644,000
FY 2021 Admin. Request $43,904,000
FY 2021 House $45,644,000
FY 2021 Enacted $45,644,000
The Joint Explanatory Statement states:
- “The Act provides sufficient funding to ensure that Indian Affairs will meet the statutory deadlines of all authorized settlement agreements to date;
- The agreement updates the bill language of the Act to reflect those settlements that have been completed: Public Law 100-580, Public Law 101-618, Public Law 111-11, and Public Law 111-291;
- The recommended level enables Indian Affairs to make a payment, in an amount to be determined by the Secretary, to the Blackfeet Settlement Trust Fund; and
- The Department is directed to submit a spending plan to the Committees within 45 days of enactment of this Act on how it plans to allocate the funds provided by the bill for the specific settlements.”
Indian Guaranteed Loan Program
FY 2020 Enacted $11,779,000
FY 2021 Admin. Request $ 931,000
FY 2021 House $11,797,000
FY 2021 Enacted $11,797,000
The Indian Guaranteed Loan Program is made up of Loan Subsidies and Program Management. This program guarantees or insures loans covering up to 90 percent of outstanding loan principal to Indian tribes, tribal members, or for profit and not-for-profit businesses which are at least 51% Indian owned. Of the amount appropriated, the Act provides $1,593,000 for administrative expenses. The Act limits the total loan principal that can be guaranteed or insured to $82,886,197.
BUREAU OF INDIAN EDUCATION
FY 2020 Enacted $1,191,334,000
FY 2021 Admin. Request $ 944,544,000
FY 2021 House $1,230,974,000
FY 2021 Enacted $1,237,369,000
The BIE Budget is composed of Operation of Indian Education Programs and Education Construction.
Operation of Indian Education Programs
FY 2020 Enacted $943,077,000
FY 2021 Admin. Request $875,659,000
FY 2021 House $981,697,000
FY 2021 Enacted $973,092,000
Budget activities within the Operation of Indian Education Programs 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.
The Joint Explanatory Statement provides:
- “All programs, projects, and activities are maintained at fiscal year 2020 levels, except for requested fixed cost increases and transfers, or unless otherwise specified below; and
- Language contained in Senate Report 116-123 regarding support for BIE reforms; GAO documented management challenges; broadening access to Native languages and previous funding use; data collection on student absences; integrating school-based preventative health services; and compliance with education laws is restated.” (Joint Explanatory Statement)
Elementary and Secondary Programs (Forward Funded)
FY 2020 Enacted $596,893,000
FY 2021 Admin. Request $585,209,000
FY 2021 House $619,983,000
FY 2021 Enacted $617,901,000
The Elementary and Secondary forward funded sub-activities are: ISEP Formula Funding; ISEP Program Adjustments; Education Program Enhancements; Tribal Education Departments; Student Transportation; Early Childhood Development; and Tribal Grant Support Costs. Funds appropriated for FY 2021 for these programs will become available for obligation on July 1, 2021, for SY 2021-2022.
ISEP Formula Funding received an $11.1 million increase.
Tribal Education Departments. Congress rejected the Trump Administration’s request to zero out funding for Tribal Education Departments.
Tribal Grant Support Costs are funded at what is estimated to be full funding, which has been the case for every fiscal year from FY 2016 Enacted to the present.
Native Language Immersion. Within the amount appropriated for Education Program Enhancements, $4 million is included for Native language immersion grants at BIE-funded schools.
Early Childhood Development/FACE. Congress provided a $2.1 million increase to this sub-activity. The House Report specifies that this increase is to allow the BIE to expand the FACE program to new sites. Further, the House Report directs Indian Affairs to submit a report on the number of new sites and additional students served with these new funds.
Pay Parity for Teachers and Counselors. Federal law requires that teachers and counselors in the BIE-funded school system be paid equivalent salaries to their counterparts in the Department of Defense Education Activity. For several years, the BIE failed to request fixed cost increases to cover this requirement, even though BIE-operated schools were still required to pay the salary increases. Although tribally-controlled grant schools are not required to provide pay parity, grant schools are eligible to receive the fixed cost increases and they depend on those funds to help keep their teachers’ compensation rates competitive with other jurisdictions. Both the Joint Explanatory Statement and the House Report discuss the implications of the BIE’s failure to request these necessary fixed cost increases and direct BIE to correct this problem:
“The Committees are concerned that the failure to request adequate resources to cover full fixed cost requirements, including funds to meet the legal requirement to compensate teachers and counselors at a pay rate that is consistent with the Defense Department Overseas Teachers Pay and Personnel Act (Public Law 86-91), have resulted in schools having to absorb these escalating costs at the expense of other program requirements. The agreement directs the Bureau to produce the report directed by House Report 116-448 regarding the implementation of Defense Department-equivalent pay rates by no later than 120 days from enactment of this Act. The Bureau is also directed to clearly display funding amounts required to comply with Defense Department-equivalent pay rates as part of future budget justifications and to include sufficient funding in its budget request to fully fund these requirements.” (Joint Explanatory Statement)
“The Committee directs BIE to provide an analysis of ISEP funds from fiscal year 2010 to fiscal year 2020 that details: The BIE pay rate for teacher and counselor salaries; the Department of Defense (DoD) pay rate for teacher and counselor salaries; the amount of funding provided for teacher and counselor pay parity in annual budget requests and actually provided with available funds; the amount of annual funding spent on BIE-funded schools non-salary expenses (including student services, safety, programming, and other standard operations); the impact that any shortfall of ISEP funds for required pay increases had on school services and programming (if any); and a complete accounting of any amounts BIE funded schools may not have received because fixed costs increases that align with DoD teacher and counselor pay parity requirements were not included in annual budget requests. Upon completion of BIE’s work, the Committee directs the Department of the Interior (DOI) Office of Inspector General (OIG) to conduct a review and verification of BIE’s analysis and submit the review to the Committee.” (H. Rept. 116-448)
Elementary and Secondary Programs (Non-Forward Funded)
FY 2020 Enacted $156,638,000
FY 2021 Admin. Request $143,477,000
FY 2021 House $158,555,000
FY 2021 Enacted $153,477,000
The Elementary and Secondary non-forward funded sub-activities are: Facilities Operations; Facilities Maintenance; Juvenile Detention Center Grants; and Johnson-O’Malley Assistance Grants.
The Act maintains Facilities Operations at FY 2020 Enacted levels, including fixed costs, and accounts for the transfer of funds to pay for 105(l) leases through the new indefinite appropriations account.
Health and Safety Inspections. “The Committee directs BIE to complete annual health and safety inspections of all BIE system facilities and to publish quarterly updates on the status of such inspections.” (H. Rept. 116-448)
Johnson O’Malley (JOM) Program. The Joint Explanatory Statement notes that of the amount appropriated, the $2.5 million set-aside for capacity building is continued. The House Report explains, “Given GAO’s recent report finding BIE does not provide training to JOM contractors on administering the program, the Committee continues these funds for fiscal year 2021. The Committee expects BIE to report on training and capacity building activities provided to contractors in fiscal year 2020 and the activities to be provided in fiscal year 2021 within 90 days of enactment of this Act. Further, GAO found that BIE does not have systematic processes in place to conduct oversight of JOM programs. The Committee directs Indian Affairs to develop the recommended processes and timelines to ensure the JOM program operates effectively and efficiently and to submit a report to the Committee every 120 days on the progress being made towards meeting GAO’s recommendations until the recommendations are closed.”
Post Secondary Programs (Forward Funded)
FY 2020 Enacted $105,944,000
FY 2021 Admin. Request $ 97,943,000
FY 2021 House $110,919,000
FY 2021 Enacted $110,919,000
The Post Secondary forward funded sub-activities are: Tribal Colleges and Universities; Tribal Technical Colleges (United Tribes Technical College (UTTC) and Navajo Technical University (NTU)); and Haskell and SIPI.
Post Secondary Programs (Non-Forward Funded)
FY 2020 Enacted $40,995,000
FY 2021 Admin. Request $-0-
FY 2021 House $42,495,000
FY 2021 Enacted $42,495,000
The Post Secondary non-forward funded sub-activities are: Tribal Colleges and Universities Supplements; Scholarships and Adult Education; Special Higher Education Scholarships; and the Science Post Graduate Scholarship Fund. Congress rejected the Trump Administration’s request to zero out all of these sub-activities.
Education Management
FY 2020 Enacted $42,607,000
FY 2021 Admin. Request $49,030,000
FY 2021 House $49,745,000
FY 2021 Enacted $48,300,000
The Education Management sub-activities are: Education Program Management and Education IT.
Educational Broadband. “The importance of bringing broadband to BIE-funded schools is understood but concerns remain about how these funds are used and the planning process used for this type of investment. The agency is directed to report back within 90 days of enactment of this Act on a scalable plan to increase bandwidth in BIE-funded schools, procure computers, and acquire software. This report should also include how the Bureau is working with other Federal agencies to coordinate and plan for the technology buildout.” (Joint Explanatory Statement)
Reports. The House Report calls for quarterly reports from the BIE on activities that occur to separate the BIE from BIA; and on steps taken to implement the Government Accountability Office’s recommendations regarding the BIE’s provision of special education for students with disabilities. Further, the House Report calls for the BIE to submit a workforce plan that includes a strategy and timeframe for filling vacant staff positions as recommended by GAO, to the Committee within 90 days of enactment of this Act.
Education Construction
FY 2020 Enacted $248,257,000
FY 2021 Admin. Request $ 68,885,000
FY 2021 House $249,277,000
FY 2021 Enacted $264,277,000
The Education Construction sub-activities are: Replacement School Construction; Replacement Facility Construction; Employee Housing Repair; and Facilities Improvement and Repair; as well as two new sub-activities: Replacement/New Employee Housing; and Tribal Colleges Facilities Improvement and Repair.
Green Infrastructure. “With the funds provided, the agreement continues to encourage the Department to include green infrastructure as stated in the explanatory statement accompanying Public Law 116-94 and to submit a report to the Committees on Appropriations within 90 days of enactment of this Act describing how the Department incorporated these activities.” (Joint Explanatory Statement)
Replacement School Construction and Replacement Facility Construction. Congress rejected the Trump Administration’s request to zero out funding for these two critical sub-activities and instead continued to fund them at FY 2020 Enacted levels ($115.5 million and $23.9 million, respectively). The House Report calls on the BIE to submit a new school replacement list as part of the next budget request and calls on the BIE to prepare a five-year spend plan for Replacement Schools and Replacement Facilities based on the higher of the last fiscal year enacted levels or the current year budget request.
Education Construction Site Assessment and Capital Investment Program. “The Committees recognize the efforts of Indian Affairs and the Bureau of Indian Education to develop and communicate to Tribes a comprehensive, system-wide approach to school repair and replacement, as the Committees have directed the agencies to do since the fiscal year 2015 appropriation, which should include a clearly identified list of prioritized projects to be accomplished with annual discretionary and mandatory appropriations. The agencies are encouraged to continue working with Tribes to develop and refine the program and are directed to provide feedback to Tribes throughout the process, consistent with direction contained in House Report 116-448 on Tribal consultation. The program must provide for data entry training of all on-site facilities managers and must not disincentivize any Tribe from making improvements with its own funds.” (Joint Explanatory Statement)
Replacement – New Employee Housing. Congress concurred with the Trump Administration’s request for this new sub-activity “for replacing/building new teacher housing at remote locations where alternative housing is limited or current facilities are in critical need of replacement.” (FY 2021 BIE Budget Request, p. BIE-CON-ED-19). The House Report also calls for the BIE to provide an assessment of need for replacement/new employee housing and to provide a spending plan to the Committee within 90 days of enactment of this Act.
Tribal Colleges and Universities (TCUs) Facilities. Congress created a new sub-activity with $15 million for TCUs facilities requirements. Further, the Joint Explanatory Statement provides additional direction “The Committees recognize that many Tribal colleges and universities (TCUs) have significant unfunded needs and direct BIE and the Assistant Secretary, Indian Affairs (ASIA) to work with Tribal leaders and other stakeholders to develop a consistent methodology for determining TCU operating and maintenance needs to inform future budget requests. The Committees previously directed BIE to develop a methodology regarding TCU operating and facility needs. The Committees again direct BIE and ASIA to assess TCU facility needs and to develop a distribution methodology to address these needs. The Committees also direct the BIE to report back within 60 days of enactment of this Act on how it conducts student counts at TCUs and how funding is provided to address facilities operation, maintenance, and construction needs.” (Joint Explanatory Statement)
Bureau of Trust Funds Administration
FY 2020 Enacted $-0-
FY 2021 Admin. Request $108,399,000
FY 2021 House $-0-
FY 2021 Enacted $-0-
Office of the Special trustee for American Indians
FY 2020 Enacted $-0-
FY 2021 Admin. Request $-0-
FY 2021 House $108,399,000
FY 2021 Enacted $108,399,000
The Act continues funding for the Office of the Special Trustee for American Indians (OST) and rejects the proposed budget structure for a new Bureau of Trust Funds Administration (BTFA) within the Office of the Assistant Secretary-Indian Affairs. The Joint Explanatory Statement goes into great detail regarding the concerns around standing up BTFA, a number of which we excerpt here:
- The decision to transfer the functions of OST wholesale into a new bureau also raises questions about whether it is consistent with provisions of the 1994 Indian Trust Reform Management Act (Public Law 103-412), which created OST on a temporary basis until the completion of certain trust reforms, or with the existing transition plan for OST proposed by the Administration and adopted by Congress in fiscal year 2019.
- The Committees note that Secretarial Order 3384 dated August 31, 2020, requires OST to report to the Secretary. The Committees are concerned that this conflicts with the Department’s fiscal year 2019 reorganization, which shifted OST’s reporting structure from the Secretary to the Assistant Secretary Indian Affairs.
- Congress repeatedly hears from Tribes and Tribal organizations that many of OST’ s functions and activities are duplicative, overlapping, or fragmented with activities carried out by Indian Affairs. While Congress understands OST consulted with Tribes about possible duplication, Tribes state their concerns were not fairly considered. It is for these reasons that the House rejected the proposed BTFA structure in its fiscal year 2021 bill.
Looking forward, Congress lays out expectations for the incoming Administration and also requests a number of Government Accountability Office reports. The Joint Explanatory Statement provides:
“It is expected that the incoming Administration will perform its own analysis of its trust responsibilities under the 1994 Act and subsequent legislation and that committees of jurisdiction, including the House and Senate Appropriations Committees, will consider any proposals to address the future disposition of OST without prejudice. In the meantime, within 180 days of enactment of this Act, the Department is directed to provide a report that details: (1) the amounts and sources of funds expended in the creation of BTFA, and a justification of the expenditures, including the legal authority upon which they were based; (2) a detailed policy and legal analysis regarding whether transferring all OST duties, functions, and activities to BTFA is consistent with the provisions of the 1994 Act and subsequent legislation, as well as whether it is consistent with the 2019 OST reorganization agreed to by the Committees with the understanding the reorganization was not making OST permanent; and (3) a complete workforce analysis that details current OST or BTFA FTE by grade, position title and duty station and a justification of why each position must be retained by OST or a successor organization rather than be combined with or performed by existing Indian Affairs FTE. As part of this report, the Department is also directed to provide a detailed accounting of the funds spent to implement the transition associated with the proposal in the fiscal year 2019 budget justification.
In addition to this analysis, the Government Accountability Office (GAO) is also directed to examine whether any duties, activities or functions performed by OST (including those proposed to be performed by the new bureau) are duplicative, overlap, or result in fragmentation with duties, activities, or functions performed by Indian Affairs. Further, GAO is expected to provide a report to the Committees on Appropriations that summarizes and examines tribal perspectives on any identified duplication, overlap, or fragmentation and also addresses how to best reduce any potential duplication, overlap, or fragmentation between OST (or a successor entity) and Indian Affairs. If any duplicative FTEs are identified by GAO, it is expected that the Department will make every effort to transfer current, duplicative staff to appropriate positions in Indian Affairs.”
Other Related Agencies and Offices
Office of Navajo-Hopi Indian Relocation
FY 2020 Enacted $7,500,000
FY 2021 Admin. Request $4,000,000
FY 2021 House $4,000,000
FY 2021 Enacted $4,000,000
The Office of Navajo and Hopi Indian Relocation (ONHIR) was created as a result of the Navajo Hopi Settlement Act of 1974, Public Law 93–531. The Office is charged with planning and conducting relocation activities associated with the settlement of land disputes between the Navajo Nation and Hopi Tribe.
The Joint Explanatory Statement states: “The bill continues the direction provided in the explanatory statement accompanying Division G of the Consolidated Appropriations Act, 2017 (Public Law 115-31). There is continued commitment to bringing the relocation process to an orderly conclusion and ensuring all eligible relocatees receive the relocation benefits to which they are entitled. Consultation with all affected parties and agencies is the key to a transparent, orderly closeout.”
National Park Service
Historic Preservation
The Act provides $144.3 million for Historic Preservation. The Tribal Historic Preservation Program falls under this budget category and provides funding to tribes that have signed agreements with the National Park Service designating them as having an approved Tribal Historic Preservation Officer (THPO). The Act provides $15 million for THPOs, a $1.3 million increase over FY 2020.
Tribal Consultation on National Register of Historic Places. “The Committees are concerned by the March 1, 2019, proposal by the Service to modify the longstanding procedure used to nominate properties for inclusion on the National Register of Historic Places (84 Fed. Reg. 6996). The Committees spoke to this concern in the explanatory statement accompanying Public Law 116-94, and directed the Department to complete meaningful government-to-government consultation with Tribes pursuant to Executive Order 13175 and consult with other Federal land management agencies, State and tribal historic preservation officers, or other key stakeholders prior to finalizing or implementing the rule. The Committees are not aware of any subsequent efforts by the Department to comply and expect the Department to comply with the directive from fiscal year 2020 prior to implementation of the rule.” (Joint Explanatory Statement)
NATIONAL RECREATION AND PRESERVATION
National Recreation and Preservation is found under a different part of the National Park Service budget than Historic Preservation. Cultural Programs is the sub-activity which funds National Native American Graves Protection and Repatriation Act (NAGPRA) grants. Under Cultural Programs, the Act provides $1.9 million for NAGPRA grants and $1.25 million for grants to nonprofit organizations or institutions for the purpose of supporting programs for Native Hawaiian or Alaska Native culture and arts development.
Departmental Offices: Office of the Secretary [Interior]
Departmental Operations
The Joint Explanatory Statement states:
“Appraisal and Valuation Services Office (AVSO). The Great American Outdoors Act (Public Law 116-152) amended how funding from the Land and Water Conservation Fund (LWCF) is distributed. While this bill does not provide new discretionary funding in the Management Services activity for the Federal land operations of the AVSO, the bill does direct that $19,000,000 be made available from the LWCF for such operations. Of the funds provided, funding is included for preliminary appraisal and valuation work for potential land acquisitions and exchanges in high-priority conservation areas, such as the Bristol Bay ecosystem. Funding for Indian Country appraisal operations is made available through this bill and totals $11,204,000.”
If we may provide additional information or assistance regarding FY 2021 Indian Affairs, Other Related Agencies, or National Park Service appropriations, please contact us at the information below.
[1] Reflects a $2 million rescission.
