On March 23, 2018, the President signed the FY 2018 Omnibus spending bill (HR 1625) into law as PL 115-141, thus averting a government shutdown. The Omnibus funds the entire federal government for the remainder of the fiscal year (through September 30, 2018) and provides billions of dollars in increases for both domestic and defense discretionary spending above what the House and Senate had originally contemplated for FY 2018. These increases are possible because earlier this year, Congress reached a deal to increase the discretionary spending caps for both FY 2018 and FY 2019, titled the Bipartisan Budget Act of 2018 (see our General Memorandum 18-008 of February 9, 2018), thus creating room for targeted spending increases on certain priorities. In this memorandum, we report on the FY 2018 funding for Indian Affairs (which includes the Bureau of Indian Affairs (BIA) and Bureau of Indian Education (BIE)), as well as a few other selected programs under the Department of Interior Title. For Indian Affairs, the lion’s share of the increases were directed to the BIA Construction accounts and the BIA Public Safety and Justice account. Also, a one-time increase was directed to the BIE Post-Secondary account to complete the transition to a forward funded funding cycle for all tribal colleges and universities.
Guidance on Implementation. In lieu of a Conference Report, the Omnibus is accompanied by a Joint Explanatory Statement, which provides guidance on its implementation. Prior to enactment of the Omnibus, the House Appropriations Committee had reported out their version of an Interior, Environment and Related Agencies bill (HR 3354) and report (H. Rept. 115-238) (see our General Memorandum 17-044 of August 25, 2017) but the Senate Appropriations Committee did not report out their own version. Instead, they later released an unofficial “Chairman’s Mark” (see our General Memorandum 18-003 of January 16, 2018). Thus, the Joint Explanatory Statement explains that it is only H. Rept. 115-238 and the Joint Explanatory Statement which are to be complied with. We note that the Joint Explanatory Statement does repeat some language from the Senate Chairman’s Mark. The following guidance is found at the beginning of Division G (Interior, Environment and Related Agencies) of the Joint Explanatory Statement:
Unless otherwise noted, the language set forth in House Report 115-238 carries the same weight as language included in this joint explanatory statement and should be complied with unless specifically addressed to the contrary in this joint explanatory statement. While some language is repeated for emphasis, it is not intended to negate the language referred to above unless expressly provided herein. In instances where the House report speaks more broadly to policy issues or offers views that are subject to interpretation, such views remain those of the House and are not affirmed by this explanatory statement unless repeated herein. In cases where the House report or this explanatory statement directs the submission of a report, such report is to be submitted to both the House and Senate Committees on Appropriations. Where this explanatory statement refers to the Committees or the Committees on Appropriations, unless otherwise noted, this reference is to the House Subcommittee on Interior, Environment, and Related Agencies and the Senate Subcommittee on Interior, Environment, and Related Agencies.
INDIAN AFFAIRS (IA) OVERVIEW
The Omnibus provides $3 billion for Indian Affairs. This reflects not only a wholesale rejection of the $371.7 million in cuts proposed by the Trump Administration (including the proposed cuts to the Tiwahe Initiative) and a consensus on updating the estimate for Contract Support Costs, but also a $203.8 million increase above FY 2017. In keeping with prior years, the following statement of values was included in the House Report:
The Bureau of Indian Affairs, the Bureau of Indian Education, and the Office of the Assistant Secretary—Indian Affairs (together, “Indian Affairs”) provide services directly or through contracts, grants, or compacts to a service population of more than 1.7 million American Indians and Alaska Natives (AI/AN) who are enrolled members of 567 federally recognized Tribes in the 48 contiguous United States and Alaska. While the role of the organization has changed significantly in the last four decades in response to a greater emphasis on Indian self-determination, Tribes still look to Indian Affairs for a broad spectrum of services. Almost 85 percent of all appropriations are expended at the local level, and over 62 percent of appropriations provided directly to Tribes and Tribal organizations through grants, contracts, and compacts. In preparation for the fiscal year 2018 appropriation bill, the Subcommittee held two days of hearings and received testimony from over 75 witnesses on a variety of topics pertaining to AI/AN programs. The Federal government has a legal and moral obligation to provide quality services to American Indians and Alaska Natives. On a nonpartisan basis, the Committee continues to protect and, where possible, strengthen the budgets for Indian Country programs in this bill in order to address longstanding and underfunded needs [emphasis added].
Indian Affairs-Specific Guidance on Implementation, Including: Fixed Costs, Transfers and Reports. The Joint Explanatory Statement, expanding on the general implementation guidance provided at the beginning of the Interior, Environment and Related Agencies Division, provides the following Indian Affairs-specific guidance:
The Bureaus are expected to execute their budgets in accordance with the justification submitted to the Congress, except as otherwise directed below or in the funding allocation table at the end of this report. The table has been expanded to include additional lines for the Bureau of Indian Education and Public Safety and Justice. The Bureaus are reminded of the guidance and reporting requirements contained in House Report 115-238 that should be complied with unless specifically addressed to the contrary herein, as explained in the front matter of this explanatory statement. The Committees also expect the timely submission of reporting requirements as contained in House Report 115-238 and as outlined in this explanatory statement. The agreement includes requested fixed costs and transfers except where discussed below, and the following details and instructions.
Government Accountability Office (GAO) Recommendations. The Joint Explanatory Statement states:
The Committees are concerned about the addition of several programs to the Government Accountability Office’s 2017 high-risk list (GA0-17-317). The inclusion of these programs to this list indicate there are several challenges to overcome in order to improve the Federal management of programs that serve Tribes and their members. The Committees stand ready to work with the Bureaus to implement the necessary GAO recommendations.
NATIVE Act Implementation. Both the House Report and the Joint Explanatory Statement provide funding for and direction to the Administration on implementing the Native American Tourism and Improving Visitor Experience Act (“NATIVE Act”, PL 114-221). The NATIVE Act is designed to facilitate international and domestic tourism in tribal communities via updating federal agency tourism strategies and providing increased resources and technical assistance to tribes, tribal organizations, and Native Hawaiian organizations for their tourism efforts. The focus of the NATIVE Act is the utilization of tribal communities’ rich and diverse cultures and histories in the visitor experience (see our General Memorandum 16-060 of October 7, 2016).
Request for Indian Reorganization Act – Carcieri Fix Not Included. Each fiscal year from FY 2011 to FY 2017, the Obama Administration requested and Congress continued 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 who came under federal jurisdiction after 1934. The Trump Administration did not request this Carcieri Fix language, nor Congress provide it.
Activities within the Bureau of Indian Affairs are: Tribal Government; Human Services; Trust-Natural Resources Management; Trust-Real Estate Services; Public Safety and Justice; Community and Economic Development; and Executive Direction and Administrative Services.
The 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. (Spending levels by sub-activity are found on p. 1 of the attached chart.)
Congress rejected the Administration’s proposed cuts, including the proposal to zero out funding for the Small and Needy Tribes sub-activity. For some sub-activities, modest increases are provided.
Consolidated Tribal Government Program. Congress rejected the Administration’s requests for changes to this program, stating the following in the Joint Explanatory Statement:
The Committees are concerned about the Consolidated Tribal Government Program internal transfer of $1,733,000 and have not agreed to any changes from the fiscal year 2017 enacted level of $75,429,000 for this program. The Bureau is directed to report back to the Committees within 30 days of enactment of this Act with a description of the number of Tribes that use this program and how increases for this program compare to others that offer similar services.
New Tribes. This sub-activity provides $160,000 in Tribal Priority Allocation (TPA) base funding per tribe to support newly federally-recognized tribes. Once a tribe has been acknowledged, it remains in this category for three fiscal years. The Administration proposed $160,000 (level funding) to assist the newly-recognized Pamunkey Tribe. Congress ultimately provided $1,120,000–enough to fund not only the Pamunkey Tribe but also the six Virginia tribes who were federally recognized after the Administration had already submitted its FY 2018 Budget Justification (see our General Memorandum 18-006 of February 6, 2018). In addition to providing this increase, Congress urged the Administration to, “efficiently administer the Tribal recognition process and strongly encourage action on pending requests.”
Small and Needy Tribes. The purpose of this sub-activity is to provide small tribes with a minimum Tribal Priority Allocation (TPA) base funding by which they can support their tribal governments. Congress rejected the Administration’s request to zero out this sub-activity, instead providing level funding ($4,448,000) and explaining that the amount appropriated is for “ensuring that all Tribes receive the maximum base level provided by the Bureau to run Tribal governments.”
Road Maintenance. Congress provided a $4.3 million increase for this sub-activity, specifying in the Joint Explanatory Statement that:
Road maintenance is funded at $34,653,000 and includes $1,000,000 to improve the condition of unpaved roads and bridges used by school buses transporting students, and $1,000,000 for road maintenance in support of implementing the NATIVE Act (P.L. 114-221). The Bureau is directed to report back to the Committees within 60 days of enactment of this Act on how the Bureau plans to allocate the funds provided in the bill and the progress being made to implement the GAO recommendations outlined in the report GA0-17-423.
Authorization for the BIA to Accept Road Funding From U.S. Customs and Border Protection. The Act includes the following provision:
Provided further, That the Bureau of Indian Affairs may accept transfers of funds from U.S. Customs and Border Protection 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).
The Joint Explanatory Statement explains:
The Committees are aware that in some areas along the border, including the areas of the Tohono O’odham Nation in Arizona, and the Blackfeet Nation in Montana, U.S. Customs and Border Protection (CBP) and Tribes work together on border security. The Committees have included bill language to support the transfer of funds from CBP to BIA, in consultation with affected Tribes, for the reconstruction or repair of BIA owned roads needed as a result of cooperative security efforts on the U.S. border.
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. (Spending levels by sub-activity are found on p. 2 of the attached chart.)
Tiwahe Initiative. Congress rejected the Administration’s proposed cuts to the individual Human Services sub-activities (many of which support the broader Tiwahe Initiative) as well as the Administration’s proposal to zero out funding for the Tiwahe Initiative demonstration project and the Housing Improvement Program sub-activity. Instead, the House Report affirms the importance of culturally-appropriate services to strengthen families and communities:
The Committee continues to recognize the importance of providing culturally-appropriate services with the goals of empowering individuals and families through health promotion, family stability, and strengthening Tribal communities as a whole. Indian Affairs is urged to make services available to law enforcement officers, in coordination with the Indian Health Service.
The Joint Explanatory Statement elaborates:
The agreement … includes funding to continue the Tiwahe initiative at the fiscal year 2017 enacted level. The Bureau is directed to report back to the Committees within 90 days of enactment of this Act on the performance measures being used to monitor and track the Tiwahe initiative’s effectiveness in Indian Country. The Committees are aware of the pressing needs women and children face in domestic violence situations; therefore, the Committees expect at least $200,000 from human services activities be used to support women and children’s shelters that are serving the needs of multiple Tribes or Alaska Native Villages in the areas served by the Tiwahe pilot sites.
Welfare Assistance. The Congress, in the Joint Explanatory Statement, requests the following report:
The Committees are concerned about the funding distribution for welfare assistance and direct the Bureau to report back to the Committees within 30 days of enactment of this Act on how this funding would be distributed.
The Trust–Natural Resources Management sub-activities are: Natural Resources, general; 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. (Spending levels by sub-activity are found on p. 2 of the attached chart.)
Congress rejected the Administration’s proposed cuts, as well as the Administration’s proposal to zero out funding for the Tribal Climate Resilience/Cooperative Landscape Conservation sub-activity. Instead, Congress funded the Trust–Natural Resources Management sub-activities at close to FY 2017 enacted levels.
Irrigation Operation and Maintenance. Notably, the Administration requested a rare $1.1 million increase for this sub-activity to which Congress agreed. As the Administration explains, this increase would be directed towards the Operations and Maintenance for the Gallegos Pumping Plant because in FY 2016, the responsibility for the plant was transferred from the Bureau of Reclamation to the BIA without any accompanying funds.
Transfer to the Tribal Management/Development Program. The Joint Explanatory Statement states, “The agreement includes $355,000 in the Tribal Management Development Program (TMDP) for fisheries activities previously funded within the Forestry program. Future funding requests should reflect the transfer of this activity to TMDP.
Cooperative Agreements and Alaska Subsistence. The Joint Explanatory Statement explains: It is the Committees’ understanding that the Bureau has entered into cooperative agreements with the Ahtna Intertribal Resource Commission and the Kuskokwim River Inter-Tribal Fisheries Commission, and with other organizations interested in establishing similar agreements; therefore, it is the Committees’ expectation that within the funding provided for the Tribal Management Development Program (TMDP), pilot projects and programs for Alaska subsistence will continue.
Resiliency and Resource Management Agreements with Tribes.
The House Report provides:
The Committee supports the Bureau of Indian Affairs’ efforts to address the resiliency needs of Tribal communities by working to address threats to public safety, natural resources, and sacred sites. Consistent with the Federal government’s treaty and trust obligations, the Committee directs the Bureau of Indian Affairs to work with at-risk Tribes to identify and expedite the necessary resources. The Department of the Interior is expected to promote and expand the use of agreements with Indian Tribes to protect Indian trust resources from catastrophic wildland fire, insect and disease infestation, or other threats from adjacent Federal lands, as authorized by law. The Joint Explanatory Statement provides: Consistent with treaty and trust obligations, the Committees direct the Bureau to work with at risk Tribes to identify and expedite the necessary resources to address the resiliency needs of Tribal communities.
The Department of the Interior is expected to promote and expand the use of agreements with Indian Tribes to protect Indian trust resources from catastrophic wildfire, insect and disease infestation, or other threats from adjacent Federal lands, as authorized by law. The Committees direct the Bureau to coordinate with the Office of Wildland Fire to submit a report describing how the Department determines the use of wildfire suppression and rehabilitation resources and prioritizes Indian forest land, the title to which is held by the United States in trust.
Water Resources. The House Report and the Joint Explanatory Statement state that of the amount appropriated for the Water Resources sub-activity, $390,000 is to continue the Seminole and Miccosukee water study.
Fish, Wildlife, and Parks.
The Joint Explanatory Statement directs:
Within the amounts provided for Fish, Wildlife, and Parks, the agreement continues $545,000 for substantially producing Tribal hatcheries in BIA’s Northwest Region currently not receiving annual BIA hatchery operations funding. This funding should be allocated in the same manner as in fiscal year 2017 but should be considered base funding in fiscal year 2018 and thereafter.
The House Report specifies and that of the amount appropriated for the Fish, Wildlife and Parks sub-activity, $9,933,000 is for Projects.
Tribal Partnerships with USGS. The Joint Explanatory Statement directs: The Bureau is directed to enter into a formal partnership with local Tribes and the United States Geological Survey to help develop a water quality strategy for transboundary rivers.
Funding Distributions for Tribes East of the Mississippi River. The Joint Explanatory Statement provides: The Committees expect that Tribes east of the Mississippi River who have resource challenges also receive appropriate funding.
The Trust–Real Estate Services sub-activities are: Trust Services; Navajo-Hopi Settlement Program; Land Title and Records Offices; Real Estate Services; Land Records Improvement; Environmental Quality; Alaska Native Programs; Rights Protection; and Trust-Real Estate Services Oversight. (The attached chart does not break down spending levels by sub-activity for the Trust–Real Estate Services activity.)
Congress rejected the Administration’s proposed cuts, including the Administration’s proposal to zero out funding for the Alaska Native Programs sub-activity and the Litigation Support/Attorney Fees program element within the Rights Protection sub-activity. The Joint Explanatory Statement explains:
The agreement provides $129,841,000 for real estate services. All program elements within this subactivity are continued at fiscal year 2017 enacted levels plus fixed costs and transfers, except where discussed below.
The following line items each receive a $500,000 program increase: land title and records offices; land records improvement-regional; and regional oversight. The Bureau is expected to distribute the program increases to regional offices to address administrative backlogs for Trust Real Estate Services programs.
Alaska Native Programs. Congress not only rejected the Administration’s proposal to zero out the sub-activity, they provided a $400,000 increase for a total of $1,470,000, in order to, “support a program level of $450,000 for the ANCSA Historical Places and Cemetery Sites Program.”
Outstanding Title Conveyance Requests.
The House Report directs:
The Committee directs the Bureau of Indian Affairs (BIA) to have no outstanding title conveyance requests older than 12 months, including those who have been initially rejected by the Land Titles and Record Offices for insufficient or incorrect documentation in TAAMS, by September, 2018. The Committee expects an update on the status of their outstanding conveyances by September, 2018 and a report on what the BIA will be changing in their operations policy to ensure these backlogs and documentation related rejections do not occur in the future.
The Joint Explanatory Statement reinforces the direction in the House Report:
As discussed in House Report 115-238, the Committees expect an update on the status of outstanding conveyances by September 2018, and an update on what the Bureau will be changing in its operations policy to ensure backlogs and documentation-related rejections do not occur in the future.
Elwha River Ecosystem and Fisheries Restoration Act. The Joint Explanatory Statement repeats the House Report language:
The Committees direct the Secretary, or his designee, to work with the Lower Elwha Klallam Tribe to identify appropriate lands in Clallam County, Washington, to satisfy the requirements of section 7 of the Elwha River Ecosystem and Fisheries Restoration Act (P.L. 102-495).
Report on Implementation of a 1992 Law that Transferred a BIA Administrative Site in Bethel, AK to the Yukon Kuskokwim Health Corporation. The Joint Explanatory Statement directs:
The Secretary, in consultation with other interested agencies, is directed to provide a report to Congress, on or before August 1, 2018, on the estimated cost of responses that are necessary under applicable Federal and State laws to protect human health and the environment with respect to any hazardous substance or hazardous waste remaining on the property as authorized by section 13 of Public Law 102-497.
Abandoned Wells. The Joint Explanatory Statement directs:
A program increase of $3,000,000 is included for the plugging of abandoned wells not under Bureau of Land Management authority. The Committees direct the BIA to conduct an inventory of wells for which the BIA is responsible to reclaim, including cost estimates for submission to the Committees within 180 days of enactment of this Act.
The Public Safety and Justice sub-activities are: Law Enforcement; Tribal Courts; and Fire Protection. (Spending levels by sub-activity and program element are found on p. 5 of the attached chart.)
Congress rejected all of the Administration’s proposed cuts, including the proposal to eliminate funding for the Tiwahe Initiative-funded pilot programs focused on reducing recidivism in five targeted Indian communities. Further, Congress provided important increases, including $7.5 million to address the impacts of opioid addiction and a $3 million increase for tribal justice needs in PL 280 states.
Law Enforcement Funding for Restored Tribes. The Joint Explanatory Statement directs: The Committees understand that several Tribes whose Federal recognition was terminated and then subsequently restored now face significant challenges in securing law enforcement funding through self-determination contracts. The Bureau is directed to work with affected Tribes to assess their law enforcement needs and submit a report within 120 days of enactment of this Act that details the amounts necessary to provide sufficient law enforcement capacity for them.
NAGPRA Implementation. The Joint Explanatory Statement directs:
Included within Criminal Investigations and Police Services is $1,000,000 to implement the Native American Graves Protection and Repatriation Act.
New Funding to Address the Impacts of Opioid Addictions. This funding was added after Congress reached a deal to increase the FY 2018 domestic discretionary spending cap. The Joint Explanatory Statement provides:
Included within Criminal Investigations and Police Services is … $7,500,000 to help people affected by opioid addiction.
Program Funding for Recently Constructed Facilities. The Joint Explanatory Statement directs:
Within Detention/Corrections is a $1,400,000 increase for recently constructed facilities that do not currently have existing program funding within the BIA budget; additional funding in future years will be considered as information becomes available.
Educational and Health-Related Services for Individuals in Tribal Detention Centers Considered Allowable Costs. The House continued language from the FY 2017 House Report, stating:
For the purpose of addressing the needs of juveniles in custody at Tribal detention centers operated or administered by the BIA, educational and health-related services to juveniles in custody are allowable costs for detention/corrections program funding. Indian Affairs is urged to provide mental health and substance abuse services when needed by juvenile and adult detainees and convicted prisoners.
Tiwahe Initiative: Reducing Recidivism. The Joint Explanatory Statement directs: Within Law Enforcement Special Initiatives is $3,033,000 to reduce recidivism through the Tiwahe initiative.
Tribal Courts and Tribal Justice Support in PL 280 States. The Joint Explanatory Statement directs funding to tribes affected by PL 83-280 and urges the BIA to take the following actions:
Within Tribal Justice Support is … $13,000,000 to address the needs of Tribes affected by Public Law 83- 280.
The Committees remain concerned about Tribal courts’ needs as identified in the Indian Law and Order Commission’s November 2013 report, which notes that Federal investment in Tribal justice in “P.L. 280” States has been more limited than elsewhere in Indian Country. The Committees expect the Bureau to continue to work with Tribes and Tribal organizations in these States to consider options that promote, design, or pilot Tribal court systems for Tribal communities subject to full or partial State jurisdiction under Public Law 83-280.
VAWA Implementation. The Joint Explanatory Statement directs: Within Tribal Justice Support is $2,000,000 to implement the Violence Against Women Act for both training and specific Tribal court needs.
Office of Justice Services. The Joint Explanatory Statement directs: Within Law Enforcement Program Management is a $500,000 increase for the Office of Justice Services’ District III Office to promote timely payments.
The Community and Economic Development sub-activities are: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight. (The attached chart does not break down spending levels by sub-activity for the Community and Economic Development activity.)
Congress rejected all of the Administration’s proposed cuts, including the proposal to zero out the elements of the Tiwahe Initiative funded under Job Placement and Training sub-activity. Congress also provided targeted increases to fund implementation of the NATIVE Act and to modernize the National Indian Oil and Gas Management System (NIOGEMS).
Continuation of the Tiwahe Initiative. Elements of the Tiwahe Initiative are funded by the Job Placement and Training sub-activity. Congress provided $12,549,000 for Job Placement and Training and designated $1,550,000 of those funds for the Tiwahe Initiative.
Economic Development. According to the FY 2018 Indian Affairs Budget Justification, “This funding assists tribes in developing programs to build business or commercial capacity for individual tribal members, as well as opportunities for business and energy development to enhance reservation economies.” Congress provided $1,826,000 for this sub-activity (near the FY 2017 level).
Implementation of the NATIVE Act. Congress provided $5,656,000 for the Community Development-Central Oversight program element, and designated $3.4 million of those funds “to implement the Native American Tourism and Improving Visitor Experience Act, including via cooperative agreements with Tribes or Tribal organizations.”
Minerals and Mining and the Indian Energy Service Center. This sub-activity promotes and provides technical assistance for the development of renewable energy, conventional energy, and mineral resources. It also funds the Indian Energy Service Center, which Congress initially funded in FY 2016. The Center is to be tasked with expediting leasing, permitting, and reporting on conventional and renewable energy on Indian lands. For FY 2017, both the House and Senate report language pushed the Department of Interior to get the Energy Service Center up and running, requesting a report on the status of the Center and directing the Department of Interior to submit a budget request for FY 2018 to fund the next phase of the Center. For FY 2018, the Administration proposed to shield the Minerals and Mining sub-activity from the most onerous cuts, specifically protecting the funding for the Indian Energy Service Center. Ultimately, Congress continued to fund the Minerals and Mining sub-activity and the House directed Administration to submit a budget request in FY 2019 for the next phase of the Service Center.
Minerals and Mining and NIOGEMS. Congress provided a $1 million increase for the Minerals and Mining sub-activity and directed that to “the modernization of oil and gas records including the National Indian Oil and Gas Management System (NIOGEMS)” Further, the Joint Explanatory Statement requests the following report:
The Committees understand that the NIOGEMS has been distributed to some Tribes and regional offices; the Bureau is instructed to report back within 120 days of enactment of this Act on the cost to further expand this system to more reservations and offices.
GAO High Risk Report. The Joint Explanatory Statement requests the following report: The recent high risk GAO report (GA0-17-317) found the Bureau does not properly manage Indian energy resources. The Committees request the Bureau to report back within 180 days of enactment of this Act outlining any barriers, statutory or regulatory, that impede development of these resources.
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. (The attached chart does not break down spending levels by sub-activity for the Executive Direction and Administrative Services activity.)
Congress rejected most of the Administration’s proposed cuts, explaining, “All budget line items are funded at fiscal year 2017 enacted levels and adjusted for fixed costs and transfers, except for human capital management and intragovernmental payments, which are funded at the requested levels.” Most of the Administration’s proposed cuts had been in the form of proposed staffing cuts—60 Full Time Equivalent (FTE) positions, along with the proposed elimination of 13 vacant FTE positions.
Health and Safety Inspections of BIE Schools.
The House Report directs:
Indian Affairs is directed to complete annual health and safety inspections of all BIE system facilities, and to submit quarterly updates on the status of such inspections to the Committee. The Committee is deeply disappointed by continued GAO reports of shortcomings and delays in school safety inspections and repairs. Self-determination does not absolve the Federal government of the responsibility to inspect and repair buildings it owns. The Bureau is urged to exercise its authority to reassume the operation of federally-owned but tribally-operated schools when necessary.
The Joint Explanatory Statement echoes the request:
Indian Affairs is directed to complete annual health and safety inspections and background checks at all BIE system facilities, and to submit quarterly updates on the status of such efforts to the Committees.
Operating and Law Enforcement Needs for Treaty Fishing Sites on the Columbia River. The Joint Explanatory statement directs:
The Committees note that the Bureau has not yet complied with the fiscal year 2017 directive to provide a report on funding requirements associated with operating and law enforcement needs for congressionally authorized treaty fishing sites on the Columbia River. The Bureau is directed to transmit the report no later than 30 days following enactment of this Act. The Bureau is also urged to incorporate unfunded needs for these sites as part of future budget requests.
Report on Impacts of the Closure of the Navajo Generating Station Power Plant. The Joint Explanatory Statement directs:
Within 60 days on enactment of this Act, the Bureau is directed to make funds provided within executive direction available to solicit proposals from independent non-profit or academic entities to prepare a report on the likely impacts of the closure of the Navajo Generating Station power plant on affected Tribes, State and local governments and other stakeholders within the Four Comers region. In consultation with impacted Tribes, an entity shall be selected to prepare a report within 12 months of the award that (1) details potential economic impacts related to the plant’s closure; and (2) identifies specific policy recommendations that would mitigate the potential economic and societal consequences of the plant’s closure on affected Tribes or other stakeholders.
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 sub-activities 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.
Congress wholeheartedly rejected the Administration’s proposal to dramatically cut the BIE’s budget. Further, Congress provided a one-time increase to ensure that all remaining tribal colleges and universities (including those operated by the BIE) not currently on a forward funded cycle can transition to it.
Implementation of the BIE Transformation and GAO Recommendations.
The Administration describes the status of the BIE transformation as follows:
The BIE is currently in the process of reorganizing. Phase I involved the realignment of the internal organization of BIE from a regional basis to a structure based on the types of schools serviced; namely, (1) schools in the Navajo Nation, (2) tribally-controlled schools, and (3) BIE-operated schools. Phase I also replaced the Education Line Offices with Education Resource Centers (ERCs) which will house School Solutions Teams. The BIE began implementing Phase I of the reorganization in early 2016 after Congress issued a “notice of no objection” to the BIE. Phase II, to be implemented in 2017, involves a realignment of support operations within Indian Affairs including, contracting, IT, and facilities functions to BIE and includes an expansion of the School Support Solutions Teams to include school operations staff. (FY 2018 Indian Affairs Budget Justification, p. IA-BIE-10)
The House Report provides the following direction:
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 (GAO), the Department of Education, and others. The BIE system is undergoing a major transformation in direct response to these reports, in order to meet the changing needs of schools now that most schools are tribally-run, and in order to improve accountability. With the concurrence of elected Tribal leaders and major interTribal organizations, the Committee continues to support this transformation. All of the education-related responsibilities under Indian Affairs, including procurement, human resources, budget and finance, and BIE facilities operations, maintenance, and inspections, should be consolidated under the BIE, which should be led by an experienced and proven superintendent selected from a pool of qualified candidates inside and outside the BIE system.
The Committee remains concerned about recent GAO reports detailing problems within the K–12 Indian education system at the Department of the 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 2019 budget request, and to submit to the Committees on Appropriations 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.
The Joint Explanatory Statement concurs, raises concerns, and requests information: The Committees remain concerned about recent Government Accountability Office (GAO) reports detailing problems within the K-12 Indian education system at the Department of the 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 next fiscal year 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. The Office of the Assistant Secretary-Indian Affairs is directed to report back within 60 days of enactment of this Act on the progress made towards implementing all the GAO recommendations and the current status of the reform effort.
Inter-Agency Coordination to Serve Native Children. The House Report urges the BIE is to coordinate with the Indian Health Service to integrate preventive dental care and mental health care at schools within the BIE system, while the Joint Explanatory statement repeats this language and urges coordination on a more extensive scale:
The Committees continue to encourage efforts to improve interagency coordination for the wide range of programs that affect the wellbeing of Native children and expect the Bureau to work with relevant Federal, State, local and Tribal organizations to make these programs more effective.
The BIE is encouraged to coordinate with the Indian Health Service to integrate preventive dental care and mental health care at schools within the BIE system.
Bill Language Continuing Limitations on New Schools and the Expansion of Grades, Charter Schools, Satellite Locations and BIE-funded Schools in Alaska. The Administration requested the continuation of this language from prior years. The House and the Senate provided it with one exception: the House proposed one change: modifying the restriction on BIE funds being used to support expanded grades for any school or dormitory beyond its current grade structure. Currently, the law allows for this restriction to be waived only under certain defined conditions and only for one additional grade to be added. The House proposed to continue these conditions but delete the provision restricting any such expansion to one additional grade.
The House Report explains this proposed change and also clarifies how the restrictions on charter schools and satellite locations should be interpreted:
The recommendation modifies bill 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. The modification removes the grade expansion limitation of one grade.
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.
The Joint Explanatory Statement explains:
The bill includes modified language limiting the expansion of grades and schools in the BIE system which allows for the expansion of additional grades to schools that meet certain criteria.
Elementary and Secondary Programs (Forward Funded) FY 2017 Enacted $575,155,000 FY 2018 Admin. Request $520,044,000 FY 2018 House $578,374,000 FY 2018 Senate Committee Mark $567,495,000 FY 2018 Enacted $579,242,000
The Elementary and Secondary forward funded sub-activity includes the following program elements: ISEP Formula Funding; ISEP Program Adjustments; Education Program Enhancements; Tribal Education Departments; Student Transportation; Early Childhood Development; and Tribal Grant Support Costs (formerly titled Administrative Cost Grants). Funds appropriated for FY 2018 for these programs will become available for obligation on July 1, 2018, for SY 2018-2019. (Spending levels by program element are found on p. 3 of the attached chart.)
By and large, the House and the Senate Committee rejected the Administration’s requests to deeply cut forward funded Elementary and Secondary Programs. Further, both Chambers recommended a more than $2 million increase for ISEP Formula Funds, a slight increase for Student Transportation, and full funding for Tribal Grant Support Costs.
Support for Native Languages Included in Funding Recommendations for ISEP and Education Program Enhancements. In FY 2017, Congress increased funding for Education Program Enhancements in order to support efforts to revitalize and maintain Native languages and expand the use of language immersion programs. For FY 2018, Congress rejected the Administration’s request to cut this program element by more than 50 percent. Further, Congress specified that $2 million of the Education Program Enhancements funding is to be used for Native language immersion capacity building grants. The House Report affirms the importance of Native languages and requests the following report:
The Committee supports efforts to revitalize and maintain Native languages and expand the use of language immersion programs and has provided $2,000,000 within education program enhancements for capacity building grants for Bureau and tribally operated schools to expand existing language immersion programs or to create new programs. Prior to distributing these funds, the Bureau shall coordinate with the Department of Education and Department of Health and Human Services to ensure that Bureau investments compliment, but do not duplicate, existing language immersion programs. The Bureau is also directed to submit a report to the Committees on Appropriations within 180 days of enactment of this Act regarding the distribution of these funds and the status of Native language classes and immersion programs offered at Bureau-funded schools.
The Joint Explanatory Statement concurs and requests the following report:
The Committees support efforts to revitalize and maintain Native languages and expand the use of language immersion programs. The ISEP program is expected to continue to enhance access to Native language and culture programs in Bureau-funded schools, and the Bureau shall report back within 60 days of enactment of this Act on how funding has been and can continue to be used to support these programs. In addition, $2,000,000 is provided within Education Program Enhancements for capacity building grants for Bureau and tribally operated schools to expand existing language immersion programs or to create new programs. Prior to distributing these funds, the Bureau shall coordinate with the Department of Education and Department of Health and Human Services to ensure that Bureau investments compliment, but do not duplicate, existing language immersion programs. The Committees also direct the Bureau to submit a report to the Committees within 120 days of enactment of this Act regarding the status of fiscal year 2017 funds and the planned distribution of funds in this Act.
Student Transportation. Congress provided a modest increase for this program element. The Joint Explanatory Statement also requests the following report:
The Committees are concerned by the recent Government Accountability Office report (GA0-17-423) on Tribal transportation, which identified potential negative impacts of road conditions on Native student school attendance. The Committees recommend BIE take steps to improve its data collection on the cause of student absences, including data on road and weather conditions, and to report back to the Committees within 120 days of enactment of this Act regarding its actions to improve student absence data tracking and analysis.
Early Childhood and Family Development Program (“FACE”). Congress rejected the Administration’s proposed $10.7 million cut, instead providing near level funding. Separately, and to no impact on current FACE programs, Congress rescinded $8 million in prior year unobligated balances that were set to expire. The Joint Explanatory Statement provides the following detail:
The agreement includes $18,810,000 for early child and family development, which should be used to expand the Family and Child Education (FACE) program. The agreement rescinds $8,000,000 from expiring prior year balances that the Bureau failed to obligate. This rescission does not impact the program’s operating level for fiscal year 2018.
Full Funding for Tribal Grant Support Costs. Congress provided $81 million (the current estimate for full funding) for Tribal Grant Support Costs for tribally-operated, BIE-funded schools. The Administration’s estimate for full funding had come in slightly lower, but it had been calculated months earlier. Both Congress and the Administration stated their intent to fully fund Tribal Grant Support Costs.
Elementary and Secondary Programs (Non-Forward Funded) FY 2017 Enacted $140,540,000 FY 2018 Admin. Request $123,871,000 FY 2018 House $141,438,000 FY 2018 Senate Committee Mark $141,563,000 FY 2018 Enacted $141,563,000
The Elementary and Secondary non-forward funded sub-activity includes the following program elements: Facilities Operations; Facilities Maintenance; Juvenile Detention Center Grants; and Johnson-O’Malley Assistance Grants. (Spending levels by program element are found on p. 4 of the attached chart.)
Congress rejected the Administration’s request to cut $16.6 million from all of the non-forward funded Elementary and Secondary programs, including the request to zero out the funding for Juvenile Detention Center Grants. In FY 2016, Congress initiated this grant program to meet the education and health related needs of Native youth detained or incarcerated in currently operating, BIA-funded, juvenile detention centers for an extended period of time.
Johnson-O’Malley Assistance Grants. Congress rejected the Administration’s proposed $4.6 million cut to the Johnson O’Malley (JOM) program but expressed continued concerns about the distribution of funds. The House Report states:
The Committee remains concerned that the distribution of funds is not an accurate reflection of the distribution of students. The Bureau is reminded of the reporting requirement contained in the explanatory statement accompanying the Consolidated Appropriations Act, 2017.
The Joint Explanatory Statement requests the following report: The Johnson O’Malley program is funded at $14,903,000. The Committees remain concerned that the distribution of funds is not an accurate reflection of the distribution of students. The Bureau is directed to report back to the Committees within 90 days of enactment of this Act on the status of updating the student counts.
Post Secondary Programs (Forward Funded) FY 2017 Enacted $77,207,000 FY 2018 Admin. Request $72,689,000 FY 2018 House $84,196,000 FY 2018 Senate Committee Mark $89,142,000 FY 2018 Enacted $94,183,000
This sub-activity includes forward funded Tribal Colleges and Universities and forward funded Tribal Technical Colleges (United Tribes Technical College (UTTC) and Navajo Technical University (NTU)). (Spending levels by program element are found on p. 3 of the attached chart.)
Forward Funding for Haskell and SIPI. In FY 2017, Congress “encouraged” the Administration to request forward funding for the BIE-run Haskell Indian Nations University (Haskell) and the Southwestern Indian Polytechnic Institute (SIPI) in future budget requests “so that all tribal colleges are on the same funding schedule.” For FY 2018, the Administration declined to request the one-time funding needed to put them on a forward funded (school year) schedule. Despite this, Congress appropriated $16.8 million in one-time funding to ensure that all tribal colleges and universities are on a forward funded schedule, explaining:
A one-time increase is provided to complete the transition to a school year funding cycle for all Tribal colleges and universities, including Haskell Indian Nations University and Southwestern Indian Polytechnic Institute.
Study of Unfunded Tribal College Needs. The Joint Explanatory statement requests the following:
The Committees recognize that many Tribal colleges have significant unfunded needs, and direct the Bureau to work with Tribal leaders and other stakeholders to develop a consistent methodology for determining Tribal college operating needs to inform future budget requests. The Committees expect the methodology to address operating and infrastructure needs including classrooms and housing.
Post Secondary Programs (Non-Forward Funded) FY 2017 Enacted $63,561,000 FY 2018 Admin. Request $45,721,000 FY 2018 House $62,650,000 FY 2018 Senate Committee Mark $64,171,000 FY 2018 Enacted $64,171,000
The two post-secondary schools overseen by the BIE are Haskell and SIPI. They are being transitioned to a forward funded schedule but appear in this chart for a final time this fiscal year. The non-forward funded Post Secondary Programs sub-activity also includes: Tribal Colleges and Universities Supplements; Scholarships and Adult Education; Special Higher Education Scholarships; and the Science Post Graduate Scholarship Fund. (Spending levels by program element are found on p. 4 of the attached chart.)
Congress rejected the Administration’s proposal to cut $11 million from non-forward funded Post Secondary programs, including the proposal to zero out Special Higher Education Scholarships and the Science Post Graduate Scholarship Fund and cut $2.7 million from Haskell and SIPI. In FY 2019, Haskell and SIPI will appear only under the Post Secondary Programs (Forward Funded) category.
The Education Management sub-activity consists of Education Program Management and Information Technology. (Spending levels by program element are found on p. 4 of the attached chart.)
Congress rejected the Administration’s request to cut $11 million from Education Management and weighed in on the matter of high-speed internet access schools.
High-Speed Internet Access for Schools. The Administration described the status of providing all BIE-funded schools with adequate internet access:
The BIE is committed to supporting its educators by expanding the access of BIE-funded schools to adequate bandwidth. To this end the BIE has actively sought working partnerships with Federal, state, tribal, and private agencies. Over the course of the last year, BIE has worked in close conjunction with the Federal Communications Commission with regard to the E-rate program. Specifically, the BIE increased the bandwidth of 28 of its schools to 10 Mbps per 100 students. The ultimate goal of BIE is to increase the bandwidth of all of its schools to the State Education Technology Directors Association’s (SETDA) standard of 100Mbps per school of 1,000 students. In addition, BIE ordered 77 circuits for its schools with another 71 upgraded circuits also being ordered. Once completed 81 percent of BIE-funded schools will meet the 100 Mbps per 1,000 student school standard. The BIE plans build upon its successes over the past year by continuing to seek out working partnerships with the goal of meeting SETDA minimum standards at all BIE-funded schools. (FY 2018 Indian Affairs Budget Justification, p. IA-BIE-29)
The House Report explains:
Without question, high-speed internet access is essential for student success and economic development in modern society. However, the GAO recently identified Tribal internet access as an area of fragmentation, overlap, or duplication (GAO–16–375SP). Indian Affairs is urged to coordinate with larger, existing broadband access programs funded by the Federal Communications Commission and the U.S. Department of Agriculture. The Joint Explanatory Statement expresses concern about the planning process and requests the following report:
The Committees understand the importance of bringing broadband to reservations and villages, but remain concerned about the planning process used for this type of investment. The Committees direct the agency to report back within 90 days of enactment of this Act on a scalable plan to increase bandwidth in schools, procure computers and software, and to include in this report how the Bureau is working with other Federal agencies to coordinate and plan for the technology buildout.
CONTRACT SUPPORT COSTS
FY 2017 Enacted Such sums as may be necessary (Estimated: $278,000,000) FY 2018 Admin. Request Such sums as may be necessary (Estimated: $241,600,000) FY 2018 House Such sums as may be necessary (Estimated: $241,600,000) FY 2018 Senate Committee Mark Such sums as may be necessary (Estimated: $241,600,000) FY 2018 Enacted Such sums as may be necessary (Estimated: $241,600,000) The Congress concurred with the Administration’s request that Contract Support Costs (CSC) continue as a as an indefinite appropriation at “such sums as may be necessary” and that it continue in its own separate account comprised of Contract Support (such sums as may be necessary, estimated to be: $236,600,000) and the Indian Self-Determination Fund ($5,000,000). The lower number reflects an adjustment to the estimated amount.
General Provisions Continued. At the Administration’s request, Congress continued the following general provisions:
Contract Support Costs, Prior Year Limitation
Sec. 405. Sections 405 and 406 of division F of the Consolidated and Further Continuing Appropriations Act, 2015 (Public Law 113-235) shall continue in effect in fiscal year 2018. Contract Support Costs, Fiscal Year 2018 Limitation Sec. 406. Amounts provided by this Act for fiscal year 2018 under 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 2018 with the Bureau of Indian Affairs or the Indian Health Service: Provided, That such amounts provided by this Act are not available for payment of claims for contract support costs for prior years, or for repayment of payments for settlement or judgments awarding contract support costs for prior years.
The Construction budget includes: Education Construction; Public Safety and Justice Construction; Resources Management Construction; and Other Program Construction/ General Administration.
Recognizing the substantial unmet need in Indian Country, Congress roundly rejected the Administration’s request to cut $48.7 million from the overall Construction budget and instead provided a record breaking $162 million increase—by far the largest increase in the FY 2018 Indian Affairs budget. Further, the Joint Explanatory Statement provides the following direction:
Account-wide. – Not later than 90 days after enactment of this Act, Indian Affairs shall submit an operating plan to the Committees detailing how fiscal year 2018 funding will be allocated and including specific projects where available and the methodology used in the prioritization. Where specific project allocations are not yet available, the plan shall provide the circumstances and Indian Affairs shall brief the Committees when project allocations are available.
Joint Ventures. – Indian Affairs is expected to comply with the directive in House Report 115-238 regarding the establishment of joint venture programs for schools and justice centers and modeled after the Indian Health Service’s program.
The Education Construction sub-activities are: Replacement School Construction; Replacement Facility Construction; Employee Housing Repair; and Facilities Improvement and Repair.
Despite the substantial demonstrated need for school repair and replacement funding, the Administration had asked Congress to zero out funding for Replacement School Campus Construction and Replacement School Facility Construction in FY 2018. Instead, Congress provided one the largest and most substantial increases in decades to Education Construction, apportioning the funding as follows:
• Replacement School Campus Construction $105,504,000 • Replacement Facility Construction $ 23,935,000 • Employee Housing Repair $ 13,574,000 • Facilities Improvement and Repair $ 95,232,000
2016 National Review Committee List and Creation of 2019 List. In FY 2017, Congress directed the Administration to provide a plan to allocate the Replacement School Construction and Replacement Facility Construction funds and to create a 2018 replacement list. It appears that so far, the Administration has declined to do so. The House Report once again directs:
The Bureau is directed to submit an allocation plan to the Committee for campus-wide replacement and facilities replacement within 30 days of enactment of this Act. The Committee recognizes the School Facilities and Construction Negotiated Rulemaking Committee established under Public Law 107–110 for the equitable distribution of funds. Appropriations in this bill for campus-wide replacement are limited to the 10 schools selected via the rulemaking committee process and published by Indian Affairs on April 5, 2016. The BIE should submit a similar list for facilities with the fiscal year 2019 budget request.
Innovative Financing Options to Supplement School Repair and Replacement Appropriations. In FY 2017, Congress urged the Administration to include in its FY 2018 budget request a proposal to reconstitute the National Fund for Excellence in American Indian Education. The Administration declined to do so. The House Report once again urges: The Committee continues to strongly support innovative financing options to supplement annual appropriations and accelerate repair and replacement of Bureau of Indian Education schools, including through the use of construction bonds, tax credits, and grant programs. The Department is urged to revise and resubmit its proposal to reconstitute the National Fund for Excellence in American Indian Education, and to include authority for the Fund to facilitate public-private partnership construction projects.
The Joint Explanatory Statement affirms:
The Committees continue to strongly support innovative financing options to supplement annual appropriations and accelerate repair and replacement of Bureau schools, including through the use of construction bonds, tax credits, and grant programs.
Facilities Improvement and Repair: Safety Inspections, Implementation of GAO Recommendations, Provision of Training, and Long-Term Planning. The Joint Explanatory Statement directs:
The Committees expect the increase provided for facilities improvement and repair to be used to address deficiencies identified by annual school safety inspections. The Committees continue to expect BIA and BIE to work together to ensure that annual safety inspections are completed for all BIE schools and remain concerned that the Bureaus have not developed concrete tracking and capacity-building systems to ensure that safety issues flagged by these inspections are addressed in a timely manner. The Committees are also concerned by reports from tribally operated schools that BIE is not providing necessary training or access to funding from the Facilities Improvement and Repair program to meet urgent safety and maintenance needs. The Committees direct BIE and BIA to provide an implementation plan to the Committees to address these concerns within 120 days of enactment of this Act.
The Bureau of Indian Education is directed to report back within 60 days of enactment of this Act on the progress the Bureau has made towards implementing a long-term facilities needs assessment modeled after the Department of Defense Education Activity, as directed by House Report 114-632.
The Public Safety & Justice Construction sub-activities are: Facilities Replacement/New Construction; Employee Housing; Facilities Improvement and Repair; Fire Safety Coordination; and Fire Protection.
Congress provided a substantial increase to Public Safety & Justice Construction, reviving the Facilities Replacement and New Construction program and apportioning the funding as follows: • Facilities Replacement and New Construction $18,000,000 • Employee Housing $ 4,494,000 • Facilities Improvement and Repair $ 9,372,000 • Fire Safety Coordination $ 169,000 • Fire Protection $ 3,274,000
Facilities Replacement and New Construction. The Joint Explanatory Statement explains: The Committees include funding for the replacement construction program, which has not received funding from the Bureau since fiscal year 2010, as other agencies have sought to build these facilities. The Committees also understand the Bureau currently has compiled a list of replacement facilities based upon the facilities condition index, inmate populations, and available space. It is the expectation the funding made available for this activity will utilize this list.
Master Plan Development. The Joint Explanatory Statement directs: Further, the Committees encourage the Bureau to develop a master plan that details the location and condition of existing facilities relative to the user population, and incorporates the use of existing tribally constructed facilities and regional justice centers, such as the Shoshone-Bannock Tribes’ Justice Center, as an efficient approach to filling gaps where additional facilities are needed. Reasonable driving distances for visitation should be taken into consideration.
Joint Venture Demonstration Program. In FY 2017, Congress encouraged the Administration to include in its FY 2018 budget request a legislative proposal for a joint venture demonstration program for regional justice centers. The Administration declined to do so. For FY 2018, the House Committee once again made this request, stating:
The Committee is concerned that Indian Affairs’ focus on alternatives to incarceration has come at a cost to justice facilities construction. Indian Affairs, in coordination with the Department of Justice, is therefore urged to consider including with its fiscal year 2019 budget a legislative proposal for a joint venture demonstration program for regional justice centers, similar to the Shoshone-Bannock Tribes’ Justice Center, and modeled after the joint venture program for Indian health facilities.
Radio Tower Dead Zones. The House Report states, “Indian Affairs is urged to improve officer safety by eliminating radio tower communications dead zones.”
The Resources Management Construction sub-activities are: Irrigation Project Construction; Engineering and Supervision; Survey and Design; Federal Power and Compliance; and Dam Projects.
Congress provided a substantial increase for Resources Management Construction, apportioning the funding as follows: • Irrigation Project Construction $24,692,000 • Engineering and Supervision $ 2,596,000 • Survey and Design $ 1,016,000 • Federal Power Compliance $ 648,000 • Dam Safety and Maintenance $38,240,000
Irrigation Project Construction. The Administration had proposed a $1.5 million increase for the Irrigation Projects-Rehabilitation program element to address critical outstanding maintenance issues at the 17 Indian Irrigation Projects and a $724,000 increase to the Survey and Design program element to fast track the technical modernization studies needed to complete this rehabilitation work. Congress responded with an $18.6 million increase for Irrigation Project Construction, stating:
The Committees are aware of the aging Indian irrigation systems and that most of these systems are in need of major capital improvement; therefore, additional funding has been included to address the infrastructure needs. Additionally, it is the Committees’ understanding that these projects are consistent with those activities authorized as part of the Water Infrastructure Improvements for the Nation Act (P.L.114-322).
Dam Projects. The Administration had proposed a $2.4 million increase for the Safety of Dams program element to support the award of construction contracts for one or more of the 11 dam safety rehabilitation projects already designed or with expected design completion in FY 2018 and a $1.8 million increase for the Dam Maintenance program element to prioritize deferred maintenance projects at the 138 BIA dams classified as “high hazard.” (According to the Indian Affairs FY 2018 Budget Justification, there is currently an identified deferred maintenance need of $538 million.) Congress responded with a $10.7 million increase for Dam Projects, stating:
The Committees are concerned that there are an unknown number of dams on reservations that have not received a hazard classification, and that the current review process is behind schedule. The Committees strongly encourage the Bureau to begin the work on these dams and report back to the Committees on the best way to effectively quantify the potential pool of dams on reservations in need of a review and/or classification.
OTHER PROGRAM CONSTRUCTION/ GENERAL ADMINISTRATION
The Other Program Construction sub-activities are: Telecommunications Improvement and Repair; Facilities/Quarters Improvement and Repair; and Construction Program Management.
Congress apportioned the funding as follows: • Telecommunications $ 1,119,000 • Facilities and Quarters $ 3,919,000 • Program Management $ 8,329,000* *(Includes $2,400,000 to continue the project at Fort Peck.)
INDIAN LAND AND WATER CLAIMS SETTLEMENTS AND MISCELLANEOUS PAYMENTS TO INDIANS
For FY 2018, Administration explained, “Funding allocations to enacted settlements in 2018 are contingent on the operating plan developed for FY 2017. The 2017 operating plan was not complete at the time the Budget Justification was written. An updated proposal for 2018 allocations will be provided once the 2017 operating plan is complete.” (FY 2018 Indian Affairs Budget Justification, p. IA-SET-3). Congress responded by providing both direction and specific funding amounts:
The bill provides $55,457,000 for Indian Land and Water Claims Settlements and Miscellaneous Payments to Indians, ensuring that Indian Affairs will meet the statutory deadlines of all authorized settlement agreements to date. The detailed allocation of funding by settlement is included in the table at the end of this explanatory statement. [See pages 6-7 of the attached chart.]
The House Report describes the Indian Guaranteed Loan Program as “the most effective Federal program tailored, dedicated to, and capable of facilitating greater access to private capital for Indian Tribes and Indian-owned economic enterprises.” Congress rejected the Administration’s request for a $2 million cut and instead provided an increase.
The Office of Navajo and Hopi Indian Relocation was established by 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.
Closure of the Office.
The House Report directs:
The Committee recommends $15,431,000 for the Office of Navajo and Hopi Indian Relocation (Office), equal to the fiscal year 2017 enacted level. Of this amount, $200,000 shall be transferred to the Inspector General of the Department of the Interior for continued oversight of planning, transition, and closure of the Office.
The Committee has directed the Office to begin to communicate with Congress, the affected Tribes, and the Department of the Interior about what will be required to ensure relocation benefits and necessary support services are provided in accordance with the specifications in Public Law 93–531 and to initiate closure of the Office. The Committee requests continuation of the quarterly reports and a comprehensive plan for closing the Office, as outlined in House Report 114–632. Legal analysis on whether any enacting legislation is required to transfer or maintain any identified functions to another agency or organization should also be included. The Office should be transparent about the path forward and should actively consult with all affected parties and agencies.
The Joint Explanatory Statement directs:
The agreement continues the direction provided in the explanatory statement accompanying Division G of the Consolidated Appropriations Act, 2017, P.L. 115-31. The Committees remain committed 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. The statute provides for termination of the Office when the President determines its functions have been fully discharged. That determination requires development of a comprehensive plan. The Committees expect to receive a progress report on development of this plan within 90 days of enactment of this Act.
Congress rejected the Administration’s requested cut and instead provided a $1 million increase. In its FY 2018 Budget Justification, the Administration had explained, “The proposed reduction would impact the tribes’ capacity to conduct cultural and historic preservation activities and to participate in required consultation on federally-funded projects that impact tribal land or any historic property to which a tribe attaches religious or cultural significance.” (FY 2018 National Park Service Budget Justification, p. 31)
NATIONAL RECREATION AND PRESERVATION
National Recreation and Preservation is found under a different part of the National Park Service budget than Historic Preservation. Under National Recreation and Preservation the Congress provided an increase for the Cultural Programs sub-activity, in order to support programs for Native Hawaiian or Alaska Native culture and arts development:
Cultural Programs.-The Committees provide $25,062,000 for Cultural Programs, an increase of $500,000 above the enacted level. The increase is provided for grants to nonprofit organizations or institutions pursuant to 20 U.S.C. 4451(b). The Committees direct the Department to consider funding the Northwest Coast arts program as outlined by the memorandum of agreement between the Institute of American Indian Arts and the Sealaska Heritage Institute. Funding for the Native American Graves Protection and Repatriation Grant Program and the Japanese American Confinement Site Grant Program is maintained at the fiscal year 2017 enacted level.
DEPARTMENTAL OFFICES: OFFICE OF THE SECRETARY [INTERIOR] DEPARTMENTAL OPERATIONS
Congress provided the following direction to Secretary of Interior regarding national monument designations and tribal energy development:
National Monument Designations. The Department is directed to collaboratively work with interested parties, including Congress, States, local communities, Tribal governments, and others before making national monument designations.
Tribal Energy Development. The Committees direct the Secretary to provide a report to the Committees within 90 days of enactment of this Act on efforts to improve the ability of Tribes to develop energy resources on tribal lands. Such report should address any potential obstacles, including statutory or regulatory, to full resource utilization.
If we may provide additional information or assistance regarding FY 2018 INDIAN AFFAIRS, OTHER RELATED AGENCIES, or NATIONAL PARK SERVICE appropriations, please contact us at the information below.
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